H (A Child)

Where fresh expert evidence has significant relevance to an assessment and was unavailable to the first-instance judge, the Court of Appeal may allow an appeal and order the assessment solely on that evidence, even though the decision below was careful and balanced. An analytical error in the judgment below is not required where the fresh evidence materially changes the evidential position. The appellate order may be confined to directing the assessment, leaving the substantive care decision for the final hearing.

The mother appealed the refusal of an application for a viability assessment at the Cassell Hospital in ongoing public law proceedings concerning her child. The first-instance judge had deferred the application pending medical reports and subsequently refused it. The mother sought permission to appeal, an extension of time and admission of fresh evidence, principally a supplemental opinion from Dr Smith. The guardian, previously neutral, supported the appeal in light of that evidence; the father also supported it, while the local authority opposed it. The central issue was whether the fresh evidence justified appellate intervention.

Outcome. The applications for permission to appeal, extension of time and admission of fresh evidence were granted. The consequential appeal was allowed and a viability assessment at the Cassell Hospital was ordered.

1. Lord Justice Thorpe held that the first-instance judgment was careful and balanced. An appeal based only on an analytical challenge to that judgment would have failed.
2. The fresh evidence was nevertheless of great significance. It raised the possibility that an earlier assessment of the mother’s condition had been erroneous, and that inappropriate medication during the residential assessment had adversely affected the earlier evaluation. The evidence also indicated improvement following treatment with lithium and supported assessment of the mother’s parenting when stable and unstable.
3. The fresh evidence materially altered the evidential position and justified the order for a viability assessment, without any need to establish an error in the reasoning below. The appeal was allowed solely on that ground.
4. The order went no further than sanctioning a viability assessment. Even if the assessment could not begin until the end of April, it remained within the timetable for the final hearing. Mr Justice Munby agreed with Lord Justice Thorpe’s decision and reasoning in its entirety.

• Court of Appeal (Civil Division): The applications were granted, the consequential appeal was allowed on the ground of fresh evidence, and a viability assessment at the Cassell Hospital was ordered.
• Principal Registry of the Family Division: HHJ Hayward Smith QC deferred the application pending medical reports and later refused the application for a viability assessment.