Excluding Expert Evidence in Care Proceedings: Welfare, Necessity and Procedural Non-Compliance

1. Introduction

The Court of Appeal considered when a family court should exclude an expert assessment that exceeded the scope of an earlier case-management direction. The decision clarifies the application of section 13 of the Children and Families Act 2014 where a report has already been prepared and may contain important evidence about a child’s future care.

The central point is not that procedural breaches must be overlooked. Rather, exclusion requires a properly balanced assessment of the statutory considerations, including the impact on the child’s welfare and the relationship between the disputed report and other available evidence. Problems with an expert’s instructions, methodology or treatment of established facts may sometimes be addressed through scrutiny and evidential weight rather than exclusion.

Durham County Council appealed against HHJ Thomas’s decision to exclude a parenting assessment. The mother opposed its admission. Although the underlying proceedings concerned three children, the appeal directly concerned only D, aged nine.

2. Background and Procedural History

The children had been in foster care since May 2025. The care proceedings arose from longstanding concerns including home conditions, domestic abuse, alleged sexual abuse and parental mental health. Their progress had been seriously disrupted: four intended final hearings had not taken place, against a background of problems with social work recommendations, compliance with directions and staffing.

Assessments prepared by the former social worker, Ms H, supported a transition towards D returning to the mother. The Children’s Guardian challenged their adequacy. In particular, the Guardian considered that lengthy chronological material had not been matched by sufficient analysis of the parents’ ability to meet D’s needs. Those needs included stability, appropriate boundaries, nourishing routines and emotional containment, as identified in an existing psychological assessment.

On 13 May 2026, the court directed an “addendum parenting assessment” of the mother by an experienced social worker who undertook both independent work and assessments for the local authority. The mother agreed to that assessor. However, the order did not specify the questions to be answered or clearly define the assessment’s permitted scope.

The assessor considered herself unable to provide an addendum to another professional’s work. Without returning to court, she and the local authority proceeded with a full parenting assessment. The resulting 52-page report followed five interviews, totalling approximately ten hours, and an observation of contact. It opposed D’s return to the mother.

A newly allocated social worker, Ms D, subsequently also recommended long-term foster care. The evidence therefore contained a significant disagreement: the earlier assessments supported reunification, while the later assessments opposed it.

The exclusion decision

At the September hearing, the mother objected that the report exceeded the authorised remit and did not properly respect the court’s previous findings. The local authority sought retrospective permission to rely on it.

HHJ Thomas refused permission. He considered that the assessor did not fall within the statutory exception for local authority staff, that the original instructions had been exceeded, and that no adequate formal application or supporting evidence had been supplied. He also regarded the newly allocated social worker’s involvement as making the disputed report obsolete. He ordered its removal, and the removal of references to it, from the material before the court.

By November, the local authority’s position had changed again. Its final plan proposed D’s return to the mother under a child arrangements order and a six-month supervision order. That plan nevertheless took account of the excluded assessor’s opinion. The Court of Appeal therefore faced a report that remained influential in practice despite its formal exclusion.

3. Summary of the Judgment

The Court of Appeal unanimously allowed the appeal and restored the report as admissible evidence.

• The original assessment order was insufficiently precise about the issues and questions the expert was authorised to address.
• The local authority should nevertheless have returned to court when the assessor considered that she could not perform the anticipated addendum assessment.
• The judge’s exclusion decision did not adequately address important statutory considerations, particularly D’s welfare and the conflicting evidence already available.
• Criticisms of the report could be addressed when deciding its treatment and weight; exclusion was not necessary in the circumstances.
• The absence of a formal application and supporting evidence could not carry substantial weight against admission where the court had already endorsed further assessment as necessary, at least to some extent.

The Court of Appeal did not endorse the report’s conclusions or decide D’s placement. It left HHJ Thomas to determine the report’s weight, whether the assessor should give oral evidence and, if so, who should call her. The proceedings were remitted for those decisions and their substantive resolution.

4. The Statutory Framework

Section 13 of the Children and Families Act 2014 controls expert evidence in children proceedings. The Court of Appeal accepted that it governed both the assessor’s instruction and the admissibility of her report.

• Section 13(1): court permission is required to instruct a person to provide expert evidence for use in children proceedings.
• Section 13(2): evidence resulting from instructions given contrary to subsection (1) is inadmissible unless the court rules otherwise.
• Section 13(5): expert evidence cannot be put before the court without permission.
• Section 13(6): permission may be granted only where the evidence is necessary to assist the court to resolve the proceedings justly.

Section 13(7) identifies matters to which the court must have particular regard:

The judgment does not dilute the statutory necessity threshold. It explains why, on these facts, the decision to exclude an already obtained assessment failed to evaluate the relevant considerations adequately.

5. Precedents Cited and Their Significance

Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998

This was the only earlier judicial authority expressly identified in the judgment. It appeared in the September order recording the judge’s conclusion that the local authority had not justified D’s continued interim separation from the mother under the test in that case.

Its significance to this appeal was limited. The local authority sought permission to challenge the judge’s observations about interim separation, but permission was refused because no order had been made on that issue. The Court of Appeal therefore did not reconsider the interim-separation test or use that authority to determine whether the expert report was admissible.

The distinction is important: the present decision concerns the evidence available for resolving the care proceedings, not a new or revised test for separating children from their parents on an interim basis. Its reasoning rests principally on section 13 and the circumstances of the assessment’s commissioning and exclusion.

6. Analysis of the Court’s Reasoning

A. Precise expert instructions are an essential safeguard

The Court of Appeal first examined the original order. Although it required an “addendum parenting assessment”, it did not specify what that meant in practical terms. The relevant issues could only be identified by consulting the Guardian’s position statement.

Those issues were substantial. They concerned whether the mother could meet D’s core care needs, rather than merely correcting isolated omissions. The description of the task as “plugging the gaps” therefore understated its potential breadth.

This mattered under section 13(7)(b) and (c): identifying the relevant issues and questions is part of the statutory permission exercise. An imprecise order made it harder subsequently to draw a clear boundary between authorised and unauthorised work.

B. Ambiguity did not authorise unilateral expansion

The Court nevertheless expressly endorsed the judge’s criticism of the local authority. Once the assessor said she could not undertake the exercise as anticipated, the authority should immediately have sought further directions.

Neither the assessor’s professional preference nor the mother’s cooperation displaced judicial control over the scope of expert evidence. Resolving the problem before the assessment would also have avoided the later dispute becoming bound up with whether the parties welcomed its conclusions.

C. Admissibility and weight are separate questions

The report contained material that fell, at least partly, within the assessment originally contemplated. It was substantial, publicly funded and prepared after the mother had participated in the assessment process.

The mother’s objections remained important. They included concerns about references to allegations not established in the proceedings and about the assessor’s approach to the court’s findings. The Court of Appeal did not determine that those criticisms were unfounded. Instead, it held that the trial judge could consider them when deciding how to treat the report.

That distinction preserves both fairness and access to relevant evidence. Admitting a report does not mean accepting its factual assumptions, endorsing its methodology or following its recommendation.

D. Welfare required consideration of what exclusion would remove

The central omission was the insufficient consideration of section 13(7)(a): the potential effect on D’s welfare of deciding his future without access to a potentially important assessment.

The judge understandably sought firm control of proceedings marked by unacceptable delay and deficient local authority performance. However, those concerns did not remove the need to consider whether excluding the report would impair the substantive decision about D.

The judgment thus connects procedural case management with the quality of the eventual welfare decision. Exclusion cannot be assessed solely by examining how the evidence came into existence; the court must also consider the consequences of deciding without it.

E. Conflicting evidence undermined the finding of redundancy

The judge relied on section 13(7)(e), reasoning that another social worker could provide current evidence. But the existence of another witness did not answer whether the disputed report still had a necessary role.

As the Court of Appeal explained at paragraph 24, the available social work evidence was divided. Ms H supported reunification, while Ms D’s August statement opposed it. Against that background, the disputed assessment could not readily be regarded as obsolete. Its significance might increase, rather than diminish, where other professional evidence conflicted.

The later reunification plan reinforced the practical difficulty of exclusion: the local authority had considered the assessor’s reservations in forming its final position. Removing the report would obscure part of the evidential background to that position.

F. Procedural defects were relevant, but not decisive

The local authority had made an oral application without a C2 application or supporting witness statement and declined an invitation to call oral evidence. The Court of Appeal did not suggest that these omissions represented good practice.

Its narrower conclusion was that those deficiencies could not weigh heavily against admission in the particular circumstances, because the court had already endorsed further assessment as necessary to some extent. The decision is therefore not a general exemption from formal application requirements.

G. Appellate intervention remained exceptional

Lord Justice Peter Jackson acknowledged that exclusion is expressly contemplated by the statute and that a case-management decision by a judge with extensive knowledge of the proceedings is difficult to overturn.

Intervention was justified because the decision did not adequately engage with considerations central to the statutory exercise. The Court of Appeal then exercised its own judgment on admissibility, while preserving the trial judge’s responsibility for evaluating the evidence.

7. Matters the Judgment Did Not Decide

• The local authority staff exception: permission to appeal on the proposed section 13(8) argument was refused. The decision does not establish when an independently practising social worker qualifies as a local authority staff member.
• The merits of the assessment: the report’s reliability, factual foundations and ultimate weight remained open.
• D’s final placement: the local authority’s reunification proposal was not converted into a final order by the appeal.
• A general right to retrospective permission: unauthorised expert evidence remains subject to statutory control and may properly be excluded in another case.

8. Practical and Wider Impact

The judgment provides useful guidance for future care proceedings without creating a presumption that an existing expert report must always be admitted.

1. Orders should define the task: labels such as “addendum” should be supported by clear issues, questions and limits.
2. Changes require directions: parties should return to court before materially altering an expert’s authorised remit.
3. Exclusion requires a complete assessment: welfare, conflicting evidence, alternatives, delay and cost must be considered where relevant.
4. Another available witness is not automatically an adequate substitute: the court must examine what the existing evidence actually says.
5. Admission should be distinguished from endorsement: weaknesses may be addressed through questions, oral evidence, submissions and reduced weight.

More broadly, the decision discourages an artificial evidential picture in which a report is formally removed even though it has materially informed the assessments and plans remaining before the court.

9. Complex Concepts Simplified

Admissibility

Whether the court is permitted to consider evidence at all.

Evidential weight

How persuasive or reliable the court considers admitted evidence to be. An admissible report may receive little weight.

Retrospective permission

Permission sought after work has already been undertaken. Section 13 allows the court to admit evidence arising from unauthorised instructions, but admission is not automatic.

Addendum assessment

A supplementary assessment intended to address an earlier assessment. Its actual scope depends on the court’s directions, not merely its label.

Necessity threshold

The requirement that expert evidence be necessary to assist the court to resolve proceedings justly, rather than simply potentially useful.

Issues Resolution Hearing

A hearing to identify or resolve outstanding issues and prepare any remaining dispute for final determination.

10. Conclusion

Re H (Children: Exclusion of Expert Report) confirms that firm procedural control must be exercised through the full statutory framework. An expert’s departure from the authorised remit is serious, but it does not by itself determine whether the resulting report should be excluded.

The decisive questions include what the evidence contributes, how it relates to competing assessments and what its exclusion may mean for the child’s welfare. Here, those considerations required admission, while leaving the report’s reliability and weight for the trial judge.