M (Children), Re

In public law children proceedings, relevant and admissible material from earlier proceedings may properly be disclosed to experts before the hearing. Withholding known material until cross-examination can hinder the experts and the court. The material must be handled cautiously, with careful consideration of the purpose for which it is introduced and the weight to be given to it. Decisions about admitting and deploying such material are discretionary case-management decisions. An appellate court should not interfere without an identifiable error in the exercise of that discretion.

In pending public law proceedings concerning three children, the local authority sought to rely on material from earlier wardship proceedings concerning the father’s older child and care proceedings concerning the mother’s elder child. The Bournemouth County Court directed disclosure of papers from one earlier case and later granted leave to file documents derived from both proceedings. The parents challenged that case-management decision and sought permission to appeal, arguing that the material should be left until trial and should not be provided to experts because they might treat earlier allegations as findings of fact. The central issue was whether the judge had erred in permitting the material to be filed and supplied to the experts.

The application for permission to appeal was refused.

1. The decision of Her Honour Judge McKinney was a discretionary case-management decision concerning the preparation of a public law hearing. The court was required to consider carefully the objectives for which material from earlier proceedings was introduced and how it should be handled.
2. Where evidence from earlier proceedings was known, relevant and admissible, the judge was entitled to direct that it be placed before the experts before the hearing. If experts first encountered the material in cross-examination, they might be asked to assess its weight without having had a proper opportunity to consider it. Pre-hearing disclosure allowed their reasoning to be tested, including whether they had attached more weight to the material than was appropriate.
3. Lord Justice Thorpe agreed with the County Court judge’s reasoning. The presence of difficult historical material did not disclose an issue of principle. The judge had made no error in exercising her discretion while managing the final stages of the hearing, and the application was without foundation or merit.
4. The application was refused. The order included a legal aid assessment.

1. Court of Appeal (Civil Division): Lord Justice Thorpe heard the application for permission without notice on 21 February 2001 and refused it, finding no error in the County Court’s case-management decision.
2. Bournemouth County Court: Her Honour Judge McKinney permitted the local authority to file relevant documents derived from earlier wardship and care proceedings and directed that relevant, admissible material could be provided to the experts before the hearing.