B (a child), Re

In care proceedings, permission for further expert evidence may properly be given where a parent advances a materially changed proposed care arrangement which raises a live issue not addressed by the existing evidence. The court should also have regard to the parents’ confidence in the fairness and even-handedness of proceedings which may result in permanent separation from their child.

A judge does not pre-judge the outcome merely by candidly identifying the strength of adverse evidence and the difficulties facing a parent, provided that the judge retains an open mind. Such observations do not, without more, justify transferring the final hearing to another judge.

The local authority commenced care proceedings concerning J, a young child who had been separated from his parents because of the parents’ history and their earlier failure to provide adequate parenting for another child. Its case relied on reports from professionals involved in the earlier proceedings.

At a directions hearing in Truro County Court, His Honour Judge Vincent refused the parents’ request to instruct further experts. The mother appealed, challenging the restrictions on expert evidence and alleging apparent bias. At the expedited appeal hearing, she stated that she would separate from the father and sought an assessment as a single parent. The central issues were whether an expert should assess that new case and whether the final hearing should be removed from the judge.

1. Appeal allowed to a limited extent. The court permitted the parents to instruct Dr Banks and directed consequential revision of the earlier case-management directions. The proposed expert assessment addressed a materially altered case: the mother now asserted that she would separate from the father, so that her capacity to maintain that separation became the central issue.

2. The existing professional evidence strongly supported the local authority’s case and cast doubt on the credibility of the mother’s new position. Nevertheless, an assessment was sensible. The proceedings concerned the possible permanent loss of a child, and parents should have confidence that the process is fair and even-handed. If the further expert agreed with the existing opinions, the final hearing might be unnecessary or substantially shortened. Although the earlier June hearing date would be lost, the September fixture would not be jeopardised.

3. The court rejected the contention that the judge’s earlier remarks showed pre-judgment or apparent bias. The judge had properly drawn attention to the updated adverse evidence, the grave obstacles to either parent caring for the child, and the bleak outlook. He had also stated that he would retain an open mind. In that context, giving the parents a realistic indication of the evidential position was proper and did not justify transferring the trial to another judge.

4. The appeal was therefore allowed only so far as necessary to obtain the further assessment and adjust directions. The final hearing was not reassigned.

• Court of Appeal (Civil Division): allowed the appeal to permit instruction of Dr Banks and consequential amendment of directions; refused to remove the final hearing from His Honour Judge Vincent: [2007] EWCA Civ 556 .
• Truro County Court: His Honour Judge Vincent, on 22 March 2007, refused the parents’ requested further expert instructions in care proceedings.