W (A Child)

Where the lower court has proceeded on a misunderstanding of the relief sought, the appellate court may determine the properly defined application and substitute an order granting appropriate limited relief. Here, the issue was permission to disclose the case papers to a medical expert and for that expert to examine the child. The application did not require the Court of Appeal to determine whether the causation hearing could be reopened. The appeal was therefore allowed on the narrower basis accepted by the local authority.

The parents appealed from an order of His Honour Judge O’Brien in the Chelmsford County Court dated 29 August 2002. The judge had dismissed an application concerning access to the case papers and appeared to have treated it as an application to reopen a causation hearing concerning non-accidental injuries suffered by the child. Before the Court of Appeal, the parents confined the relief sought to permission to disclose the papers to Dr de Sousa and permission for him to examine the child. The local authority consented to that limited relief.

1. The appeal was allowed. The Court substituted the orders sought in paragraphs 1 and 2 of the notice of application for the order made below.
2. The county court proceedings had been affected by uncertainty about the nature of the relief sought. The parents’ application, as properly clarified, was limited to obtaining an independent medical assessment. It did not require determination of any wider power to reopen the causation hearing.
3. Permission was granted to disclose the litigation papers to Dr de Sousa and for him to examine the child. The papers were considered essential to enable him to provide the parents with a realistic and objective assessment of the medical issues.
4. The Court of Appeal’s order was made with the local authority’s consent to the limited relief. Lord Justice Mance agreed with Lord Justice Thorpe. The parents were awarded half their costs of the appeal.

1. Chelmsford County Court: His Honour Judge O’Brien dismissed the parents’ application on 29 August 2002 and granted permission to appeal.
2. Court of Appeal (Civil Division): The appeal was allowed. The order below was replaced by orders granting the limited relief sought in paragraphs 1 and 2 of the notice of application.