WSP v Hull City Council

In care proceedings, the initial assembly of expert evidence may ordinarily be confined to one jointly instructed expert in each discipline. A further opinion may become appropriate once the first reports reveal that particular evidence is adverse and pivotal. The risk that a later instruction may delay the hearing does not justify premature duplication.

A party cannot be compelled to obtain evidence from an independent third party. Relevant medical records already held by that party may, however, be ordered to be disclosed. Evidence about a parent’s psychiatric condition and medication is admissible at a fact-finding hearing where it bears directly on the parent’s likely condition at the material time, rather than merely suggesting a propensity to behave in a particular way.

In care proceedings concerning two children, the local authority alleged that the younger child’s serious brain and eye injuries were non-accidental. The parents maintained that the injuries were caused or triggered when the father tripped and the child’s head struck a door frame.

HHJ Dowse authorised the joint instruction of one expert in each relevant medical discipline but refused the parents permission to instruct four additional experts independently. He also directed the father to obtain a report from his psychiatrist, while refusing the local authority’s primary application for disclosure of the father’s psychiatric and GP records.

The father appealed with permission against those case-management decisions. The local authority cross-appealed against the refusal to order disclosure. The issues were whether the parents were entitled to duplicate expert evidence at that stage, whether psychiatric evidence was relevant, and how such evidence could lawfully be obtained.

1. The father’s appeal was allowed in part and the local authority’s cross-appeal was allowed. The orders favouring one jointly instructed expert in each medical discipline were conventional and within the judge’s case-management discretion. The refusal to permit the parents immediately to instruct four further experts was upheld.

2. The decision in W v Oldham Metropolitan Borough Council [2006] 1 FLR 543 did not establish a general entitlement to two experts in every relevant discipline from the outset. It recognised the importance of a second opinion where the first expert’s evidence was pivotal. Whether any report was pivotal could not ordinarily be assessed until the initial reports had been received. The parents might renew their application after those reports became available.

3. The possibility that a later second opinion might jeopardise the listed hearing dates did not justify collecting duplicative evidence prematurely. Joint instruction was the proper first step. Biomechanical engineering evidence was also premature. Its necessity could be reconsidered if the medical experts indicated that it would assist them.

4. The father’s psychiatric condition, his prescribed medication, the medication actually taken and the possible effects of any departure from his prescription were relevant to the fact-finding hearing. This was not evidence of mere propensity. It formed part of the wide factual context bearing on his likely condition at the time of the alleged injury.

5. A court cannot compel a party to procure a report or other evidence from a third party who is not already a witness. The father therefore could not be ordered to obtain a report from his psychiatrist. That direction was set aside.

6. The psychiatric and GP records were relevant and were already in the father’s possession. He could therefore be ordered to disclose them immediately to the other parties. The local authority and guardian were permitted to show them to a psychiatrist and could later seek compulsory attendance by the treating psychiatrist. Save for substituting those disclosure arrangements, the father’s appeal was dismissed.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 981, allowed the father’s appeal in part and allowed the local authority’s cross-appeal. It upheld the refusal of immediate permission for additional experts, set aside the direction requiring the father to obtain a psychiatric report, and substituted an order for disclosure of the medical records.

• High Court, Family Division: HHJ Dowse, sitting as a judge of the High Court, ordered the joint instruction of experts, refused the parents permission to instruct additional experts, directed the father to obtain a psychiatric report, and refused the local authority’s primary application for disclosure. No neutral citation is stated.