Fresh evidence on appeal

The issue of when an appeal can use fresh evidence comes up quite often – there’s the general principle from Ladd v Marshall that the Court look at three essential ingredients before deciding to allow it

Ladd v Marshall [1954] 1 WLR 1489:

(1) the evidence could not with reasonable diligence have been obtained for use at the trial;

(2) the evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive); and

(3) the evidence is apparently credible though it need not be incontrovertible

And then following the Civil Procedure Rules, Terluk v Berezovsky [2011] EWCA Civ 1534 held that :-

“In my view, the principles reflected in the rules in Ladd v Marshall remain relevant to any application for permission to rely on further evidence, not as rules, but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the Court below.”

The family Court have determined that there is more flexibility in family law cases

Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, Peter Jackson LJ (at paragraph 25) summarised the approach to be followed in these terms:

“A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.”

This case Re T (Fresh Evidence on Appeal) 2024 https://www.bailii.org/ew/cases/EWCA/Civ/2024/1384.html involved an appeal from a father against the making of a Care and Placement Order. The mother had the benefit of an intermediary at the final hearing and the father says that this intermediary identified that he was presenting with features of Autistic Spectrum Disorder

“It was suggested by the intermediary supporting the mother during the lengthy final hearing, that in her professional opinion, I was presenting with what may have been traits of an Autistic Spectrum Disorder. This was not something that had been raised previously and I do not yet have a diagnosis of this nature. Following this being raised I have now sought the assistance of my GP in making a referral for an assessment in respect of this to ensure that I am properly supported moving forward. If indeed, I do need additional support which was not available to me during the course of these proceedings and this 5 day final hearing, I would also suggest that this raises the issue of procedural irregularity and unfairness to the extent that it renders the decision unjust.”

The father paid privately for an assessment as to whether he had ASD. This was not an assessment directed by the Court, but commissioned by the father himself. The father wanted to rely on the outcome of that assessment to support his appeal.

This is interesting. Had the father been diagnosed with ASD within the proceedings, there would certainly have been some accommodations for this condition – it may have resulted in specialist reports about how best to engage with him and how he could be supported to give his evidence, it would have been taken into account by the Court (not necessarily determinative, but obviously important). Armed with that diagnosis, should that be admitted in the appeal?

The Court of Appeal said the following (which is going to be case and fact specific, but is illuminating of an approach rather than hard lines to be followed in other cases)

Ladd v Marshall does not require fresh evidence to be incontrovertible. But it does require it to be credible, or rather, in this context, reliable. I accept Ms Hargreaves’ submission that there are several reasons for doubting the reliability of Ms D’s report.

First, for understandable reasons as the father was at that point acting in person, it was not obtained in compliance with the important procedures in Part 25 of the Family Procedure Rules 2010 and Practice Directions 25B and 25C governing the instruction of experts in family proceedings in general and children’s proceedings in particular. It did not include the statement required by FPR 25.14(2) that the expert understands and has complied with the expert’s duty to the court, the further statement required by paragraph 9.1(i) of Practice Direction 25B, or the statement of truth required by paragraph 9.1(j) of that Practice Direction.

Secondly, because the report was obtained without the court’s prior permission, as required by paragraph 5.1 of Practice Direction 25B, neither the court nor the other parties had an opportunity to scrutinise Ms D’s credentials prior to the assessment. As noted above, the report states that Ms D is a psychotherapist “accredited to administer” diagnostic tools for the evaluation of persons with ASD. Ms Hargreaves submitted that the fact that Ms D was neither a psychiatrist nor a psychologist undermines the reliability of her evidence. There is certainly no basis for challenging Ms D’s statements as to her accreditation. But equally there is no basis for evaluating whether she was the appropriate professional to assess the father’s neurodevelopmental condition in the context of the issues arising in these proceedings.

Thirdly, again because the report was obtained without the court’s prior permission, neither the court nor the other parties had an opportunity to consider or endorse the terms of her instructions. The formal procedure stipulated in FPR 25.7 requires a party seeking the court’s permission to instruct an expert in children’s proceedings to file a formal application inter alia identifying the issues to which the expert evidence is to relate and stating the questions which the expert is to be required to answer. Paragraph 4.1 of Practice Direction 25C requires the party responsible for instructing the expert to prepare a letter of instruction that complies with the detailed provisions of that paragraph and is drafted in agreement with the other parties.

Fourthly, there is nothing in Ms D’s report to indicate that she had access to the father’s medical records. It is clear from a psychiatric report prepared prior to earlier proceedings in 2015, and included in the court bundle, that the father has a significant mental health history dating back to childhood. Any court asked to authorise a psychological assessment of the father under Part 25 would have ensured that the expert had access to the relevant records. In her submissions, Ms Hargreaves referred us to guidance published by the National Institute for Health and Clinical Excellence which advised that a practitioner carrying out a comprehensive assessment of suspected autism should take into account and assess the possibility of differential diagnoses and coexisting disorders or conditions. There is nothing in the report to indicate whether Ms D complied with this guidance and in any event, without access to the father’s medical records, she was seemingly in no position to do so.

Finally, any information given to Ms D about the context of her instruction came from the father himself. Any court asked to authorise a psychological assessment of the father under Part 25 would have ensured that the expert had access to relevant information about the proceedings and the issues in the case so that the report could be tailored for the court’s purposes. It is evident from Ms D’s report that it was based on self-reporting by the father, supplemented by a discussion with his mother. Given the recorder’s finding about the father’s lack of honesty, which was supported by extensive evidence from witnesses, there are significant reasons to question the reliability of information provided by the father. In that context, it is relevant to note that the psychiatrist who assessed the father in 2015 identified concerns that he “may have a tendency to confabulate, including exaggeration of symptoms”. Any instruction for a psychological assessment of the father authorised by the court under Part 25 would have identified this as an issue to be considered by the expert. I accept, as Mr Rowley pointed out, that self-reporting is a component of the ADI-R assessment tool. But in this case, apart from the tests she administered and her discussion with the mother, Ms D had no other material on which to base her assessment.

In response, Mr Rowley, whilst conceding the deficiencies in the instruction, submitted that they did not undermine the diagnosis of ASD, particularly given the apparent family history of autism. He argued that, after receiving the report, it had been open to the respondents to seek further information from Ms D, who had expressly offered to answer any further queries. Ms MacLynn responded that it would have been open to the father to take that course. Faced with a situation of this kind at first instance, it is possible that a judge reading Ms D’s report would have given permission for an assessment to be carried out in accordance with Part 25. But as an appellate court, we have to deal with this application to admit fresh evidence in accordance with the rules governing appeals, as interpreted in the case law cited above. Taken together, the deficiencies in the report identified above give rise to substantial reasons to doubt its reliability as evidence in these proceedings

The Court of Appeal considered that the second element of Ladd v Marshall – that it would have had an important influence in the case, though it need not be decisive.

In some cases, a failure to identify cognitive difficulties before a parenting assessment or to make appropriate directions to facilitate the giving of evidence will amount to a serious procedural irregularity – see for example Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8. In giving the judgment of the Court allowing the appeal in that case, however, I observed that not every failure to comply with the provisions about the evidence of vulnerable persons will amount to a serious procedural irregularity so as to render the decision unjust, noting (at paragraph 44):

“In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision.”
In my view, this is just such a case. As demonstrated in the summary of the judgment set out above, the recorder made a number of significant findings based on evidence which are not materially compromised by the fact that the court was unaware of the possible diagnosis.

Why was that? Well, there were a number of important issues here.

First, there was extensive evidence to support the finding that the father had “told wholesale lies about important aspects of his life”. This finding was based not only on the lies told by the father in evidence but also in the evidence from the assessment centres, the social worker, and the father himself, who admitted, for example, that he had lied about his employment record. There were extensive references to his dishonesty in the social services evidence, stretching back at least to 2015 when, as already noted, a psychiatrist assessing the father referred to concerns that he “may have a tendency to confabulate, including exaggeration of symptoms”. He had told lies about the care he had given to T at the B Centre – specifically, about her bathing and feeding. This was an important element in what the recorder described as his “deeply entrenched behaviours” which left him unable to provide T with consistent and safe parenting without full-time supervision and monitoring. This finding is not undermined by the suggestion that he may have a diagnosis of ASD.

Secondly, there was clear evidence to support the findings that the father’s relationship with the mother posed a risk to T, that there was a “lack of emotional warmth between them”, and that the father had been “domineering and manipulative” towards the mother. The recorder accepted that the couple had now separated, but concluded on the evidence that it was “more probable than not that the relationship will resume”, that “they rely on each other for emotional support”, and that “their lives are still enmeshed”. Given the father’s history of dishonesty, the recorder found that he could not be trusted to inform the local authority if the relationship resumed. In those circumstances, T would be “exposed to conflict [and] neglectful parenting which would impact on her emotional wellbeing”. None of those serious findings are undermined by Ms D’s diagnosis that the father has ASD.

Thirdly, there is the recorder’s finding about the father’s drinking. The evidence showed that his misuse of alcohol dated back to when he was aged 18 and that he had lied about the extent of his drinking before entering the A Centre. She accepted that subsequent testing indicated that he had abstained from drinking or had low levels of alcohol, although this had been at a time when he was “under the spotlight”. She therefore concluded that there was “still a prevailing risk that, when stressed or under pressure, the father may relapse back into drinking”. There has been no appeal against this finding which was plainly open to the recorder on the evidence. Again, it is not undermined by the subsequent diagnosis of ASD.

Finally, as both Ms MacLynn and Ms Hargreaves emphasise, the evidence from both the A Centre and B Centre assessments, accepted by the recorder, was that the father had initially been able to assimilate and demonstrate knowledge about providing basic care for T but failed to do so throughout the periods of the assessments so as to show that he had the ability to prioritise T’s welfare needs consistently. The weight attached by the recorder to this evidence is also not materially affected by the subsequent diagnosis.

I therefore accept Ms MacLynn’s submission that, while the father’s diagnosis may have had a bearing on some of the risks identified in this case, the majority and the most serious identified risks are not linked to autistic spectrum disorder.

The appeal was therefore refused. For family law practitioners it may be a helpful reminder that you can’t necessarily fix on appeal a failure to identify a client’s particular vulnerabilities or needs if this wasn’t tackled at the time.