GW & Anor v Oldham Metropolitan Borough Council & Anor

In care proceedings, the court should be slow to refuse a second expert where the existing expert evidence is pivotal to the determination of a critical issue and cannot readily be challenged without another expert opinion. A second opinion is not ordinarily justified in every discipline. Expert evidence must remain under stringent judicial control, particularly where specialist resources are scarce.

The governing consideration is whether refusing further evidence would prevent the case from being dealt with justly. Any application, and any appeal from its refusal, should be made promptly so that the statutory timetable for care proceedings can be preserved.

The parents appealed against findings made at the first limb of a split care hearing concerning serious brain injuries suffered by their infant son. The county court accepted the evidence of the only paediatric neuroradiologist instructed, found that the injuries were non-accidental, identified either parent as the possible perpetrator, and held that the threshold under section 31 of the Children Act 1989 was satisfied.

The judge had refused repeated applications for permission to obtain a second specialist opinion. After permission proceedings in the Court of Appeal, a second expert reported that the injuries could have an innocent origin. The parties agreed that the findings could not stand and that the case required rehearing. The Court addressed when a second expert opinion should be permitted in care proceedings involving pivotal medical evidence.

1. Disposition. The appeal was allowed by consent. The findings made on 8 April 2005 could not stand after a second paediatric neuroradiologist expressed a clear and fundamental disagreement with the sole specialist on whose interpretation the medical consensus depended. The proceedings were remitted to a different judge of the Family Division for rehearing.

2. Where expert evidence on a critical issue is pivotal and is not readily open to effective challenge without another expert opinion, the court should be slow to refuse permission for a second expert. This guidance does not entitle parents to obtain matching reports in every discipline. Specialist expert evidence in family proceedings is scarce and must remain under stringent judicial control. The question for the proposed second expert should normally be of critical importance to the court's decision: Daniels v Walker [2000] 1 WLR 1382 applied with that family-proceedings qualification.

3. The issue need not be analysed under article 6 of the European Convention on Human Rights. The overriding objective in the Civil Procedure Rules requires cases to be dealt with justly. If refusing further expert evidence would be unjust, permission must be given.

4. A second opinion may narrow or eliminate disputed issues if it confirms the first. Any asserted medical consensus must nevertheless be genuine, with each relevant medical discipline making its proper contribution. In cases involving complex and serious injuries, expert evidence must be rigorously tested, placed within the wider factual matrix and assessed alongside witness credibility.

5. The possible need for a second opinion should be identified at the earliest stage. This permits compliance with the statutory timetabling duty under section 32 of the Children Act 1989. If permission is refused on a matter of fundamental importance, an application to the Court of Appeal should be made urgently and at the earliest opportunity.

6. A children's guardian may remain neutral on disputed facts but has a proactive role in ensuring that all evidence required for a just decision has been assembled. If a second opinion is properly necessary, the guardian should say so.

1. Court of Appeal (Civil Division): By consent, allowed the parents' appeal, set aside the findings and remitted the care proceedings to a different judge of the Family Division for rehearing: [2005] EWCA Civ 1247.

2. Manchester County Court: Her Honour Judge Newton found on 8 April 2005 that the child's injuries were non-accidental, that one of the parents had caused them, and that the threshold under section 31 of the Children Act 1989 was established.

3. Family proceedings court: Made an interim care order on 3 February 2005 and transferred the proceedings to the county court.