C (Children)

Material new evidence unavailable at trial, which casts a fundamentally different light on evidence central to the decision, can alone justify allowing an appeal and ordering a retrial. Where that evidence is sufficient for success, the appellate court need not determine other disputed grounds. Allowing an appeal on that basis does not predetermine the result of the retrial, which remains open on the evidence as a whole.

The mother appealed from HHJ Vincent’s decision at Truro County Court on 23 March 2007, granting the local authority’s application for a care order and making a placement order under the Adoption Act 2002. On the appeal, a medical report from Dr Metcalfe, who was responsible for the mother’s mental health, became available after the trial. The central issue was whether that evidence materially altered the evidential picture so as to justify permission, allowing the appeal and ordering a retrial.

The application for permission was granted and the appeal was allowed. An expedited retrial was ordered.

1. Dr Metcalfe’s report had not been available at the trial and cast a fundamentally different light on the mother’s lethargy during the residential assessment. That evidence was material to the judge’s assessment of whether she could cope as a sole carer in the community. The judge might have reached a different conclusion had he had the benefit of the report.
2. The appeal succeeded solely on the evidence of Dr Metcalfe. That evidence was sufficient in itself, so the court expressed no view on the mother’s additional, disputed grounds of appeal.
3. The court made no criticism of the careful judgment at first instance. The outcome of the retrial remained unpredictable, including because the mother was not accepting alternative antipsychotic medication recommended in the report. The court recognised that some compression of the retrial might be possible, but stressed the need for caution in estimating its duration.
4. Venue and directions for the retrial were left to be settled by Coleridge J, the parties and the ultimately identified judge, unless agreed.

Lord Justice Gage and Lord Justice Toulson agreed with Lord Justice Thorpe.

• Truro County Court: On 23 March 2007, HHJ Vincent granted the local authority’s application for a care order and made a placement order under the Adoption Act 2002.
• Court of Appeal (Civil Division): In [2007] EWCA Civ 486, permission was granted, the appeal was allowed on the basis of the late medical evidence, and an expedited retrial was ordered.