(I asked the Court of Appeal to give me a permission judgment, so I could use this title, and they delivered the same day I asked.)
Re G (A child) 2014
This was an application for permission by the mother to appeal out of time in relation to the making of a Care Order and Placement Order.
Those orders had been made as a result of overwhelming and unanimous medical evidence that the child had suffered a brain injury deliberately inflicted (it’s a classic ‘shaking injury’ case)
The orders had been made in September 2013, and the appeal itself was heard in September 2014, so clearly out of time.
The interesting wrinkle was that the mother was seeking to rely on ‘fresh evidence’ – her case was that she had learned after the final hearing that an infection that she had had was steptoccocal in nature, and thus might have been passed on to the baby in the birth canal – and thus that the ‘injuries’ to the child might have been as a result of organic causes rather than injury.
The mother obtained a report from Dr Wayney Squier dated 28th April 2014.
(The Court of Appeal descend into quite a bit of detail on her credentials and whether Dr Squier ought to have disclosed within her report that she was up before a Fitness to Practice Panel in relation to allegations about her doing expert reports that she wasn’t qualified to do. I’m not going to go into any of that, because I obviously don’t know the outcome of the Panel – Dr Squier might very well have been utterly exonerated / be utterly exonerated. And the Fitness to Practice Panel might drag on for months/years, so is she to lose her livelihood in the meantime? Slightly different of course if the GMC suspend someone. Let’s just say that the Court of Appeal tend to think that it was a material fact which OUGHT to have been communicated by the expert, rather than as here, everyone learning this when they heard it on the radio)
I have tried to track through the judgment, how that report came about. It clearly wasn’t ordered within the care proceedings. And it had not been ordered by the appeal courts. It emerges that an application had been made to the Judge who had decided the fact finding hearing and been granted. I’m not sure what the locus for that would be, given that there were no proceedings at that time. The purpose of the report was to see if there was a basis for appealing on fresh evidence – it was obtaining that fresh evidence.
The Court of Appeal were therefore looking at a number of issues
1. Could mother apply for an appeal out of time based on fresh evidence, asking the Court to re-open factual issues?
2. Did the Circuit Judge have jurisdiction to authorise the instruction of Dr Squier (or anyone) ?
3. If the appeal was to go ahead, would it be successful?
As indicated in paragraph 11 above, the single judge identified two procedural issues “for the consideration of the full court” namely (i) whether it was possible for the mother to apply to the first instance court to re-open factual issues; and (ii) what jurisdiction a county court judge had to grant permission to obtain and file a fresh expert report on the concluded factual issues in the context of an adjourned application for permission to oppose adoption.
Miss Bazley, Mr MacDonald and Miss Hurworth have provided full written submissions supported by numerous authorities and statutory provisions in relation to each. However, we have resisted the opportunity to hear oral submissions, the outcome of any deliberation on these points being superfluous to the merits of the mother’s applications. Nevertheless, Miss Bazley invites the court to give its views on the questions posed, albeit obiter, for future reference if necessary.
Clearly more detailed examination of these issues may be called for in the future when any alleged procedural irregularity potentially taints the ‘fresh evidence’ that may otherwise be admitted. In those circumstances the arguments can be more readily appraised when specifically addressed to the point in context. This court recognised the existence of Dr Squier’s report without condoning the procedure adopted by HHJ Roberts in relation to it. The mother’s position was not thereby prejudiced; quite the contrary.
However, I am content to provide my provisional view in relation to cases in which a sealed order follows on from findings of fact which subsequently become subject to challenge such as here in the light of the judgment in Re L and B (Children)  UKSC 8. Lady Hale’s judgment makes clear that challenge after sealed order must be in the appellate court arena. See paragraphs 16 and 19, and particularly her response to a submission that the order should not be an automatic cut off to re-visitation of the facts in paragraph 42.
In the light of this high authority my answer to the first question posed by the single judge would therefore be: if a final order has been sealed, no.
I would regard the answer to the second point to be informed by that to the first in so far as it relates to a report containing contrary medical opinion. It follows that if there is no jurisdiction to re-open the findings of fact once an order is sealed then the court has no jurisdiction to permit expert evidence on the point since FPR 25.4(3) provides that the Court may only give permission to adduce expert evidence if “the court is of the opinion that the expert evidence is necessary to assist the court to resolve proceedings.” This provision must surely refer to extant proceedings within the court’s own jurisdiction and not prospective applications to appeal. The existence of a contrary expert opinion cannot establish a “change of circumstances”, absent re determination of the issue, and therefore cannot inform the necessary welfare assessment of the child in an application for leave pursuant to section 47(5) of the 2002 Act.
My answer to the second question posed by the single judge would therefore be: none.
Once the order has been sealed, any challenge to it must be by way of appeal not to the Judge who made it. And thus, any directions or decisions in relation to the preparation and presentation of that appeal have to be made by the appellate Court, and NOT the Court that decided the original case.
The Court of Appeal also give some helpful guidance in relation to ‘fresh evidence’ appeals generally (these are cases where the appellant is saying not that the judgment as it was made at the time was wrong, but that in the light of new information we can now see that it was wrong)
They correct any misunderstanding that people may have had following Webster that in cases involving children there’s a greater leeway to admit fresh evidence.
The jurisprudence concerning the reception of “fresh evidence” by an appellate court is well versed. The discretion to admit fresh evidence is provided by CPR 52.11 to be exercised in accordance with the overriding objective of CPR 1.1. Nevertheless, LADD v MARSHALL  1 WLR 1489 remains powerful persuasive authority; the criteria identified therein effectively covering all relevant considerations to which the court must have regard.
Mr MacDonald directed his written and oral submissions in support of his application to admit fresh evidence to addressing the principles in Ladd v Marshall but reminded the court of Wall LJ’s judgment in WEBSTER V NORFOLK COUNTY COUNCIL  EWCA Civ 59, with which Moore-Bick and Wilson LJJ agreed, to the effect that it “was generally accepted that in cases relating to children, the rules it lays down are less strictly applied.”
For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.
Clicking on the Ladd v Marshall link http://www.bailii.org/ew/cases/EWCA/Civ/1954/1.html
I see that it is a case where Lord Justice Denning gave one of the judgments, so it is going to be worth a read.
Ladd v Marshall involves an alleged sale of land, where the money was allegedly paid in cash. The seller of the land (Marshall) pulled out of the deal, and denied ever having received the money. At the civil trial, the seller’s wife gave some very limited evidence, basically keeping schtum.
However, in her later divorce proceedings, she included in her petition that her husband had made her not tell the truth in the civil trial.
Ladd got wind of this and wanted to appeal the original court’s decision that there had not been a sale of the land, because Marshall’s wife was indicating that if she had been able to give honest evidence she would have said that she witnessed Ladd giving Marshall the money.
In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible
The Court of Appeal in that case felt that those three facts were problematic in this case – Mrs Marshall was claiming that she had lied in Court proceedings, so her credibility was at least questionable.
Putting the test into a nutshell – it has to be evidence that could not have been reasonably obtained at the time, the fresh evidence has to be evidence that would be presumed to be true (i.e not controversial) and also evidence that if it had been known would have been conclusive.
Going back to our case of Re G – Dr Squier’s report didn’t fit any of those categories – it fails all three tests. It at best, cast some doubt upon the other medical evidence but was an opinion that would have been open to challenge rather than being presumed to be true, and also that would not have been conclusive. It barely touches the ‘new’ aspect, and the Court of Appeal doubted that the infection issue was “new” rather than just had been overlooked at the time.
the further evidence of Dr Squier fell to be considered in two parts: that relating to the possible consequences of the mother’s streptococcal infection, and that relating to the “wider” consideration of possible causes of H’s condition on arrival at the hospital. As to the first part, Dr Squier professes no relevant expertise and offers only the most banal observation. Even if one were to accept (which I do not) that this evidence could not with reasonable diligence have been obtained for the fact finding hearing, it is not realistic to suggest that it could have had an influence on its outcome.
As to the second part of Dr Squier’s report, it is notable that all the references cited in support of her views pre-dated the fact finding hearing. Mr MacDonald accepted that Dr Squier’s opinions, which she bases on these references, were “out there” at the date of the hearing. In a case concerning the welfare of a child this might not in all cases be a sufficient basis to reject an application to admit further evidence. But as Macur LJ has explained, this is not a case where it can be said that the alternative explanation was overlooked. Moreover, as Ms Bazley demonstrated to my satisfaction, there are, to put it at its lowest, serious grounds for supposing that the alternative explanation proffered by Dr Squier, is founded on an insecure scientific basis. For those combined reasons it is therefore not possible to say that, if admitted, the further evidence would be likely to have an influence on the outcome.
and Lord Justice Briggs puts this in even more pithy terms
The first part was of no weight, while the second part amounted to no more than a different view from that of the jointly instructed experts who were unchallenged at trial, not based on any material which post-dated it. It cannot be a proper basis for the admission of fresh evidence that a party has, since the trial, merely found an expert with a different view. That was not of course the basis upon which Dr Squier was instructed, but the supposedly new possibility of infection turned out to be a matter upon which she could offer no useful opinion.
That bit rather reminded me of the apocryphal Samuel Johnson review
“sir, your manuscript is both good and original. Sadly, the parts that are good are not original, and the parts that are original are not good”