In the matter of D (a child)

Judge entitled to reject expert evidence on the basis of empirical, factual evidence

[2010] EWCA Civ 1000 TEDR Volume 15 Issue 3

The Facts

This was an appeal from Mostyn J. against an Order discharging all but one care Order in respect of 6 children who, thereafter, would return to their family home.

The evidence before the Judge, some of which related back to previous Court proceedings, was in the form of factual evidence from an Independent Social Worker (who had assessed the family three years previously); the Health Visitor; and a Support Worker from “Home Start” who had worked extensively with the family.

In terms of factual evidence, there was a distinct absence of the types of common features or harm one would expect. In fact, the evidence revealed that the parents appeared to be able to cope and to accept help.

On the other hand, the Local Authority’s case was centred upon the evidence of a Psychologist who, in broad terms, had concluded that, the personality of the mother (and in particular the combination of the mother with the father) was such that the parents were not likely to be able to effectively parent the children.

The issue

Should the psychological assessment prevail despite the absence of any history of significant ill treatment or harm and, indeed, positive empirical evidence that the parents had been seen to cope effectively? In other words, was the Judge entitled to prefer empirical or factual evidence to the Expert opinion derived from the psychological profiling?

The Decision

Overall, the answer was held to be “yes”, the Judge was entitled to prefer empirical or factual evidence to the opinion of the expert. Clearly, the expert evidence is not to be rejected without good reasons (which must be explained). It is the Judge’s function to make the decision. He must not fall into the trap of “being an expert”, but he must weigh all of the evidence up. He must not, however, simply rely on his own impression of the parents in the witness box (as he did not do in this case).


The factual background of a case is important. This reinforces the point that whilst the expert must not trespass on the role of the Judge, an appreciation of the facts or alternative opinions based upon different interpretations of the facts, are matters that the Expert should consider and be prepared to explain.

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