Case No: B4/2014/1452 & B4/2014/1453
Neutral Citation Number: [2014] EWCA Civ 1365
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

Date: 22/10/2014
Before :

LORD JUSTICE BRIGGS
LORD JUSTICE FLOYD
and
LADY JUSTICE MACUR DBE
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G (A Child)

			

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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 1st Respondent
WG (In person)
Ms J Hurworth (instructed by Jefferies Essex LLP) for the 2nd Respondent

Hearing dates : 17 September 2014
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Judgment
Lady Justice Macur DBE : 

1.	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. 

2.	The mother was supported in this application by the father.

3.	The “fresh” evidence comprised a report by Dr Wayney Squier dated 8 April 2014.

4.	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.

5.	H’s Children’s Guardian took a neutral stance.

6.	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. 

7.	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.  

8.	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.

9.	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. 

10.	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.

11.	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.

12.	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. 

13.	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.

14.	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. 

15.	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.” 

16.	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.

17.	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 Practise Panel. We were explicitly notified of that fact by the mother’s representatives on 16 September. I am satisfied that they were not alerted to this sooner. Dr Squier had apparently mentioned on the phone to the mother’s solicitors at the time of instruction that there were “some problems arising from the family court” but had not expanded on the matter. Their subsequent investigations have revealed that at this time she faces an allegation that “between 2007 and 2010, [she] acted as an expert witness in several cases in civil and/or criminal proceedings… [and] provided expert opinion evidence...outside her field of expertise…failed to discharge her duties as an expert in that she failed to work within the limits of her competence, to be objective and unbiased and to pay due regard to the views of other experts…that [her] actions were misleading, deliberately misleading, dishonest and brought the reputation of the medical profession into disrepute.”

18.	Dr Squier does not refer to this in her report dated 8 April, 2014  despite her reference to her appearance in civil and criminal courts as an expert witness and  albeit that she probably was aware of the pending proceedings at the time of submitting her report. If so, I regard this as a dereliction of her duty of disclosure of matters potentially affecting her professional standing. Nevertheless I consider that we should disregard any adverse views on this score and assume her status as a credible expert witness for the purpose of this application. The allegation against her is made but not proved. The allegation is “as it stands at the start of the hearing” and may be amended subsequently. The Fitness to Practise Panel is hearing and considering preliminary arguments only during the current hearing.

19.	I mention it at this stage in order to expressly allay any suggestion or thoughts by the parents that I may consider Dr Squier’s present predicament to be relevant to these applications absent an independent  appraisal of their merits. Miss Bazley QC, on behalf of the Local Authority urges no different course. 

20.	Mr MacDonald submits that the report could not have been obtained with reasonable diligence for use at the hearings in September and December 2012 since: (1) it was extremely unlikely that the mother would have been granted permission to instruct a further expert in the face of unanimity of the other experts; (2) the potential adverse consequences for H  of the mother’s streptococcal infection were not known to her until significantly after the conclusion of the care proceedings; (3) the report of Dr Squier raises issues  with the medical opinions expressed, the substance of which would have been beyond the ken of the mother. 

21.	Recognizing his resourcefulness, nevertheless I find the basis of his arguments in relation to delay to be wholly untenable in so far as they relate to points (1) and (3) above. Dr Squier’s report does not contain evidence of scientific advances leading to a change in the majority of expert opinion in the field. No application was made or contemplated to instruct another expert in the field of neurological injury and the litigant’s lack of expertise in the field may be assumed to be compensated by her instruction of legal representatives experienced in children public law litigation. As to (2), whether the mother’s undoubted knowledge that she had suffered an infection related to H’s birth by the time of the care proceedings should have been sufficient to trigger her legal adviser’s investigation of potential consequences by raising it’s profile in the questions of the experts then instructed, this becomes an academic feature in the application since Dr Squier’s report fails to deal with it. Dr Squier’s concedes a lack of expertise in relation to the impact of the mother’s infection and otherwise observes in the most non specific of terms that “Infection is a risk factor for venous thrombosis”.  

22.	Mr MacDonald’s submissions as to the report’s credibility reasonably rely upon Dr Squier’s qualifications, credentials and expertise. Miss Bazley in written submissions seeks to counter this by reference to A LOCAL AUTHORITY v S [2009] EWHC 2115 (Fam) in which Eleanor King J (as she then was) criticised the lack of objectivity on the part of two  expert witnesses, one of whom was Dr Squier. I am not persuaded that the judgment in that case, fairly interpreted, would permit outright dismissal of Dr Squier’s views in all subsequent cases as being incredible albeit that it is clear that they are probably regarded as controversial by the experts instructed previously in this case. I accept Mr MacDonald’s submissions and am content to proceed on the basis that the report is worthy of being deemed credible.

23.	In a case such as this where the principal findings of fact and subsequent outcome are dependent upon medical evidence it stands to reason that an alternative medical expert opinion may well undermine the integrity of the decision in question. However the issue of credibility, or the standing of the witness, is not divorced from the requirement for the court to be satisfied of relevance and/or substance of the evidence sought to be adduced to inform its decision concerning impact on outcome.

24.	Mr MacDonald urges that we should be mindful of an alternative explanation for H’s injuries as indicated by the contents of the report. He refers to the “wider” issues raised by Dr Squier, including the possibility of venous thrombosis, birth related subdural haematoma and consequent re-bleed and her criticism/ questioning of  the opinions of  the previously instructed medical experts in various respects.

25.	I do not think it necessary, instructive or helpful as precedent, to repeat the detail of Miss Bazley’s comprehensive and compelling rejoinder to those submissions by her detailed forensic comparison of the expert evidence available to the first instance judge from reports and written responses to further questions raised on behalf of the parents and the perceived alternative pathology and critical commentary proffered by Dr Squier. I am entirely satisfied that all reasonable avenues were explored by the medical experts instructed in the case, including infection and birth injury. Their diagnoses would not be deemed controversial by the majority of their peers and are expressed in conclusion of a detailed exploration of the possibility of  a credible differential diagnosis. Additionally, I am satisfied that Miss Bazley has established that Dr Squier has mistaken the ambit of  some of  the  published research papers upon which she has relied to substantiate her expressed opinions.

26.	Conscious that this mother, although she apparently did insist upon the instruction of Dr Squier, nevertheless undoubtedly did suffer from a streptococcal infection and may, by virtue of her internet investigations still harbour the thought that there is an unexplored avenue to account for H’s presentation in April 2012, I record that Miss Bazley has convinced me that the agreed facts in this case do not admit of the likelihood that H had been infected during the birth process. The articles which the mother has found estimates the presence of Strep B in 1 in 5 pregnant women and refer to Strep B transmission, when it does occur  causing “more serious types of infection” in newborns. It is not described as a latent infection. The description of H in the four weeks leading up to his hospital admission accords with that of a robustly healthy child.

27.	Consequently, I am not satisfied that the justice of this case requires that we should admit the report of Dr Squier as fresh evidence. I would refuse this application. It is not suggested that the judge was wrong in his evaluation of the available evidence or his subsequent assessment of the welfare considerations. In these circumstances there is no realistic prospect of a successful appeal. The application for permission to appeal must fail.

28.	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.

29.	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.

30.	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.

31.	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. 

32.	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.
 
33.	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. 

34.	My answer to the second question posed by the single judge would therefore be:  none.

35.	For the avoidance of doubt I do not consider that these issues do give rise to a compelling reason to justify grant of permission to appeal to the mother. 
 
Lord Justice Floyd :
        
36.	I agree with Macur LJ that the application to admit further evidence should be refused and that in consequence permission to appeal should be refused because an appeal would have no realistic prospect of success and there is no other compelling reason why an appeal should be heard. 

37.	In view of the history explained by Macur LJ, 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.
  
38.	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.
 
39.	In these circumstances, the procedural questions raised are not necessary for our decision.  Whilst noting the force of the observations of Macur LJ in paragraphs 28 to 34 above, I agree with her that we should express no final view on them.

Lord Justice Briggs :

40.	I agree that permission to admit fresh evidence and permission to appeal should both be refused, substantially for the reasons given in my Lady’s and my Lord’s judgments.  In particular I agree with my Lord’s two-part analysis of Dr Squier’s report.  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.

41.	Like my Lord I would prefer to express no view on the procedural questions raised by the single Lord Justice, since determination of the appeal has not necessitated their resolution.  For good reason, this appeal came on under significant time pressure during the vacation. In other circumstances it might have been possible to make full use of counsel’s hard work and learning about them, reflected in their impressive skeleton arguments.  But they will have to be considered on another occasion.