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Permission : Impossible


(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) [2013] 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 [1954] 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 [2009] 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

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.

With me?

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”


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. Ashamed to be British

    I’m really uncomfortable with “3. If the appeal was to go ahead, would it be successful?”

    How can any court know what might change their view (or not) from an application? It’s limited words, no one can decide on a written argument, one would have to hear what the circumstances are to appreciate the truth of the matter, or indeed the untruths, which seem to be more prevalent in most family court cases.

    The courts have a duty to ensure there are no miscarriages of justice, regardless to cost, therefore should hear applications that throw even the smallest shadow of doubt on the original decision, it’s the natural rules of justice

    • I think that’s my use of words – what I meant was not that the Court of Appeal were guessing whether it would have been successful, but that if they had agreed with points 1 and 2 that they would have then gone on to determine the appeal. My clumsy formulation, not theirs.

      (But in a “fresh evidence” appeal, as you can see, the fresh evidence has to be something (a) new (b) accepted and (c) close to being conclusive – a fresh evidence appeal that raised doubt wouldn’t cut it.)

      • Ashamed to be British

        I’ll forgive you this once 😉 but I still feel they should hear what someone has to say, it could be life changing

  2. What I find incomprehensible is that there is much more weight, time and effort given in Criminal miscarriages of justice than in Family, the same principles are not applied

    With the advancement of sciences like say DNA testing, FRESH evidence and so forth, criminal convictions are often overturned on that basis,

    The Criminal Case Review Commission is tasked with exploring the details of the possible dubious case it is sent to them mainly by the convicted, if they find the case has merit or doubts about the strength of the conviction the CCRC submit the case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995 , no questions are asked about the “Out of Time”

    With the sheer volume of Family cases heard through out the land one would feel there is an opening for something similar to the CCRC to be set up in these family matters especially when one could say that the disbandment of the family unit or the forced adoption of any child it is a whole life sentence the child suffers as much as the parents and the whole extended family, the same can be said about someone wrongfully jailed for life or even a couple of years the consequences are indeed the same, I do always look at the situation in Australia when the Government apologised for the forced adoption of children that happened, whats the difference here.

    I know many readers of this blog may not follow as much the Criminal side of our Justice system, I feel it is vastly interlinked if we look at the travesties thrust upon mothers like Angela Cannings and Sally Clark, both Shaken Baby Syndrome [SBS] both convicted of child murder, both acquitted, however with Sally, who was a family lawyer never got over the ordeal and took to drink where she sadly died in 2007.

    There was for the first time in legal history a “Double Miscarriage of Justice” heard in the court of appeal last week, in the first, which was heard in April of last year the infamous Lord Justice Leveson [Phone hacking notoriety] overturned a criminal conviction going back almost 30 years after a man, Mr Foran, in his 80’s spent the past 4 decades protesting his innocence.

    Lord Leveson who dealt with the first Miscarriage of Justice declared that there were concerns that the credibility of the principle police’s witnesses was flawed,

    Turn the tables and say the same within family proceedings where the “Experts” report only opinion based and not fact, can someones opinion be flawed, I know mine is sometimes whereby I would determine facts on principle then researching further changes my initial opinion.

    This double miscarriage of justice stems around convictions by the then West Midlands Serious Crime Squad, for those in the know, it was, well a sham organisation which resulted in the disbandment of the organisation in 1989 and the setting up of the CCRC a few years later, the ethics and the polices ways and means for getting results and convictions were very underhand and in some cases utterly deplorable most famously against the Birmingham Six.

    All of that was known in the late 80’s to early 1990’s despite every arrest made by WMSCS was investigated, the strength of the convictions and motives one would have though that by the late 1990’s all cases of questionable doubt would be appealed and addressed,

    This second hearing in the Criminal Miscarriage of Justice revolves around convictions in 1978,

    3.He appealed against conviction. On 11 March 1980, in a judgment a transcript of which is no longer available, the full court refused the applicant’s renewed application for leave to appeal. In 1981 an effort was made to persuade the Home Secretary to refer the convictions back to the Court of Appeal. That effort was unsuccessful. In July 1982 Mr Foran conducted a roof top protest at HMP Nottingham. His case was raised in the House of Commons on 20 July 1982. The minister of state at the Home Office, Mr Patrick Mayhew QC, who had a copy of the court’s judgment in his possession, reminded the House that he could not usurp the functions of the jury and the Court of Appeal. There was no new evidence that cast doubt upon the safety of the verdicts which, as Donaldson LJ had remarked in his judgment on behalf of the court, depended upon confessions by Mr Foran to the offences alleged.

    No New evidence at that time, in this original blog posting, who says the original expert’s evidence was sound, a Judge does, but question does the Judge not simply “Like the opinion” not forgetting it is simply opinion based Expert reports in Family cases, one also would add that I am forever more arguing the fact that the Expert appointed in family proceedings does so in the majority of cases BEFORE any finding of fact hearing is dealt with, the copious documentation sent to the Expert that has not been tested or had the chance to be examined from fact and fiction, the Expert simply reads verbatim and deems on paper what he has read to be fact, what happens then after a F o F has taken place and much of the evidence submitted to the Expert is deemed wrong and should be disregarded, that chance in most cases does not happen and the Experts report is deemed factual and true, in modern day Family Proceedings it is almost impossible for the appointment of a second opinion, there is scope for the Expert to produce an addendum report however evidence suggests to me they do not change their initial opinion despite now knowing the true scale of the evidence and facts found by a Judge, just because it is the way, to me does not mean it is right or wrong, it is simply how matters are dealt with in Family Proceedings.

    The balance of probabilities which is fundamental in family proceedings needs a dusting down, the disbandment of the family unit continues at a formidable pace and no one questions the whys, when the family unit is destroyed beyond repair as in adoption cases one would hope that every effort and chance is afforded to the family, notwithstanding the Re. B, and Re. B-S that until recently deemed the nothing else will do mantra we see now that parents are not afforded the same chance as any other person faced with court proceedings,

    Why would any parent go to the lengths of the above, completely alone, appeal and appeal almost entirely alone if in fact the original findings were right, why would any parent prolong their agony in appealing and trying ever possible avenue to have justice severed for their Children and family unit, why do parents protest upon roof tops of justice secretary’s houses, protest week upon week outside Parliament, the RCJ and 10 Downing Street if the courts served up justice towards the family, no one ever seems to question the all important WHYS?

    The Court of Appeal has of late become one notoriously confused place, they seem to undermine their own judgments and rulings, even the likes of Mostyn J recently deemed the COA to have been wrong in its reasoning.

    Why can we not just allow across the board fairness with matters where a Judge has to make the ultimate decision, whether Criminal or indeed Family, fresh evidence should be taken on its merit entirely, referring back to Angela Cannings and Sally Clark, Dr Meadows was deemed flawed in his Expert opinion which resulted in their acquittal, further facts become known after the event in almost all family cases I have dealt with in the past decade, Questions are raised in how and why X,Y,Z did not happen when the opportunity is there.

    It is a very lonely world for parents taking on the beast that is Family Proceedings and the COA, we should not be simply saying “Ahh Buts” to these parents without affording them the best fights possible, determining the merits of an appeal before a word is spoken never sits right with me, more so, when Parents are taking their cases to the COA, they may not be articulate enough to put their points across on paper, they are not qualified in the entirety of the CA 89 or the ACA 2002, CPR is another parents would not be familiar with, they just know the original decision was wrong, they do not care if an old ruling or point of law means they cannot obtain justice they simply try their very best with sadly a tearful outcome like the above.

    Without wanting to cause offence to Mr Foran and his quest for Justice, his crimes did not result in life sentences, a crime is still a crime no matter the circumstances and while Mr Foran set out to prove his innocence which he did, Parents today are not afforded that opportunity, no crime has been committed by the parents in an overwhelming majority of family cases, however, they, the Parents and Children have to live with the life sentences thrust upon them as a result.

    • One thing that we do lack in family cases is the equivalent of the Criminal Cases Review Commission, where there’s an independent body who can investigate claims of injustice and lobby for the decisions to be overturned. I don’t know if there would be an appetite to set one up, and there’d certainly be no funding for it, but it might be something worth looking at if the President really does want to correct the media (and public) perception of the family courts. (Thank you for a very long and considered response, Jerry)

    • Ashamed to be British

      Very well said (as usual)

  3. Pingback: Permission : Impossible | Children In Law | Sc...

  4. You are thinking of Lord Macaulay:

    There were gentlemen and there were seamen in the navy of Charles the Second. But the gentlemen were not seamen; and the seamen were not gentlemen.

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