B (A Minor), Re

Applications for leave to appeal and for an extension of time should be refused where the alleged miscarriage of justice is unsupported by the trial record and there is no identifiable error or prospect of success. An expert’s absence from the hearing does not establish unfairness where the expert was kept informed, agreed with the other experts’ conclusions, and the trial judge recorded no criticism of that course. Even a supposed disagreement would not justify appellate intervention where the remaining medical evidence is overwhelming and unanimous. A detailed and careful judgment based on extensive expert evidence provides no proper basis for leave where the proposed grounds cannot affect the result.

The parents of a young child sought leave to appeal, together with an extension of time, against judgments given in the Family Division by Mr Justice Cazalet and, principally, Mr Justice Bennett on 30 January 1997. The proceedings concerned findings that the child had suffered multiple non-accidental head injuries, including impact injuries and severe shaking trauma. The parents argued that Dr Chong’s evidence had not been before the trial judge and that, if it had been considered, the result might have differed. The central issue was whether that contention disclosed an arguable error or a sufficient prospect of success on appeal.

1. The applications were refused unanimously. Lord Justice Thorpe held that the asserted miscarriage of justice was unsustainable. Dr Chong had not attended the experts’ meeting, but he had been kept informed of its developments and concurred in the agreed conclusions. The trial judge had expressly recorded that Dr Chong was not called because all the doctors had unanimously agreed that the injuries were caused non-accidentally, and that no party criticised that decision.
2. The trial evidence included extensive medical expertise and an agreed report. The experts concluded that the child had suffered impact injuries and severe shaking or whiplash trauma, much of it non-accidental. The trial judge had carefully evaluated that evidence, rejected the parents’ account of the relevant fall, and found all the injuries to be non-accidental.
3. Lord Justice Phillips agreed. He considered that, if Dr Chong had in fact disagreed with the other experts, it was inconceivable that the disagreement would not have been placed before the trial judge by a statement or report. In any event, even such a disagreement could not have affected the outcome in light of the overwhelming force of the agreed medical opinion.
4. The judgment under challenge was full and careful, as the importance of the issue required. The proposed grounds disclosed no error in the trial proceedings and no prospect of success on appellate review. Leave to appeal and the extension of time were therefore refused.

• High Court of Justice (Family Division) Mr Justice Bennett made findings on 30 January 1997 concerning the child’s multiple non-accidental head injuries. A judgment by Mr Justice Cazalet was also challenged.
• Court of Appeal (Civil Division) The parents’ applications for leave to appeal and an extension of time were refused.