G (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lord Justice Floyd,Lord Justice Briggs |
| Judgment Date | 22 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1365 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/1452 & B4/2014/1453 |
| Date | 22 October 2014 |
[2014] EWCA Civ 1365
Lord Justice Briggs
Lord Justice Floyd
and
Lady Justice Macur DBE
Case No: B4/2014/1452 & B4/2014/1453
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
HIS HONOUR JUDGE LOCHRANE
CM12C05069
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A MacDonald QC & Ms S Duxbury (instructed by Levy & Co. Solicitors) for the Applicant
Ms J Bazley QC (instructed by Essex Legal Services) for the 1 st Respondent WG (In person)
Ms J Hurworth (instructed by Jefferies Essex LLP) for the 2 nd Respondent
Hearing dates: 17 September 2014
H is now eighteen months old and has been placed for adoption since September 2013. His mother sought leave to appeal out of time the care and placement orders made on 12 December 2012 by HHJ Lochrane. The success of her application was solely dependent upon this court admitting fresh evidence which, she argued, undermined the findings of fact of non accidental injury to H which dictated those final orders.
The mother was supported in this application by the father.
The "fresh" evidence comprised a report by Dr Wayney Squier dated 8 April 2014.
The relevant local authority opposed the application on the merits and criticised the court procedure by which the mother sought to obtain this report. In doing so they challenged the jurisdiction of a first instance judge, in this case as it happens not the judge who conducted the fact finding and welfare evaluation hearings, to permit the instruction of an expert on matters previously determined ostensibly for use to demonstrate change of circumstances and/or impact on child welfare considerations in the parent's extant application to seek leave to oppose an adoption application pursuant to Adoption and Children Act 2002, section 47(5). A respondent's notice was served to this effect dependent upon outcome of the mother's permission application.
H's Children's Guardian took a neutral stance.
As will become clear from the chronology below there was an obvious necessity to notify the parties of the court's decision speedily in order to inform future process in the case of an infant child. Having sufficient opportunity to reflect on the arguments this court refused the mother's application to admit new evidence and consequently her permission to appeal with reasons to follow.
The facts of the case before the first instance judge can be summarised relatively briefly. On 14 April 2012 H, then less than one month old, was presented at hospital "off colour", not feeding and holding his right arm in an unusual position. Some external marks and bruising were noted. Imaging showed ischaemic injury and a large amount of recent subdural haemorrhage to the left cerebral hemisphere. Opthamalogical examination revealed multi layer retinal haemorrhages. The parents could not explain his presentation other than to describe the history of his apparent decline from a healthy baby to one causing them real anxiety. Further medical investigations did not reveal any congenital injury or natural disease.
At the fact finding hearing three expert witnesses — two radiologists and a neuro-developmental paediatrician — concluded that it was probable that H had sustained non accidental injuries. The experts' opinion was not challenged. Adverse findings were made against the parents, in that they were each identified as being one of only two possible likely perpetrators of the injuries, and the orders subject to this application followed a welfare evaluation.
The subsequent procedural history may also be taken shortly. H's prospective adopters filed an adoption application in December 2013. On 17 December 2013, directions were given in the application and a hearing listed for 11 February 2014. In January, 2014 the parents indicated that they opposed the application. On 15 January, 2014 directions were made that they should each file a statement setting out the change of circumstances they alleged and why it would be in H's interests to allow them to oppose the application. The mother duly filed a statement in which she stated in terms that she had recently become aware that an infection with which she was diagnosed and treated almost immediately following H's birth was streptococcal and had the potential to infect H during his passage through the birth canal. If so, she understood there was a link in some cases between infection and brain injury. She wished to have that possibility examined.
On 11 February 2014, HHJ Roberts adjourned the adoption application to permit the parents to consider whether to lodge an appeal out of time. She gave leave to instruct an expert "to undertake a review of the papers in the light of the mother's discovery, after proceedings concluded, that she was suffering an infection at the time of H's birth and to reconsider the evidence and the conclusions of the experts" in the care proceedings. Further, she facilitated the preparation of the report by ordering disclosure of all relevant medical records and the papers in the care proceedings relating to H.
The mother lodged her application in this court for permission to appeal and to adduce new evidence on 1 May 2014. The single judge considered the application on the papers and on 20 June 2014 adjourned the application for permission to appeal with appeal to follow on the usual terms, directing an expedited hearing prior to the end of September 2014. At the time he also indicated that there were two procedural issues which justified the consideration of the full court to which I briefly return below. However, since he did not grant permission to appeal, it is clear that he did not consider that these matters provided "some other compelling reason why the appeal should be heard". ( CPR 52.2(6) (b)). The application was listed for disposal in the vacation.
With the agreement of all parties the court first considered the merits of the application for permission to adduce fresh evidence rather than examine the logistics which had allowed its creation and production to this court. In doing so it was inevitable that members of the court read the same without prejudice to the decision as to whether it was admissible.
The mother was represented by leading and junior counsel, Mr MacDonald QC and Miss Duxbury respectively. They appear pro bono and were not instructed at first instance in the care and placement proceedings. I express the court's gratitude to them. It is quite apparent that in order to ensure compliance with the relevant rules of court and practice directions they would have expended considerable time and have exercised all due diligence. The father appeared in person. Miss Bazley QC appeared on behalf of the local authority. Miss Hurworth appeared on behalf of H's Guardian. We have been greatly assisted by all written skeleton arguments and particularly by the oral submissions of both leading counsel. I commend their advocacy and the manner and the obvious skill with which they have focused their arguments in this case.
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.
Before turning to an examination of the relevant criteria I think it is right to record that in the days immediately prior to this appeal, this court became aware from a public news broadcast that Dr Squier was appearing before a Fitness to...
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