P and P (Children), Re

In care proceedings, a case-management decision may be premature where the judge refuses relevant expert evidence before knowing what it will show. If the proposed report may either resolve an issue or determine whether wider inquiries are necessary, the report should ordinarily be obtained first. The court should then decide the scope and timetable of the proceedings on an informed basis. Delay, cost and the risk of speculative investigations remain important considerations, and trial judges retain wide discretion. However, those concerns do not justify refusing a plainly relevant inquiry merely because its possible consequences are uncertain. A responsible local authority should generally be permitted to pursue such an inquiry where it bears on the children’s welfare.

North Somerset Council appealed against a case-management decision of Coleridge J in care proceedings concerning two children subject to interim care orders. The proceedings involved fractures suffered by one child and evidence concerning similar symptoms, injuries and the death of a child from the father’s earlier relationship.

The local authority, supported by the children’s guardian, sought permission to instruct a paediatric pathologist to review the earlier post-mortem evidence and answer eight questions identified by another expert. Coleridge J refused permission because the proposed inquiry might become speculative, extensive, expensive and cause unacceptable delay. The central issue was whether that refusal was premature because the future direction of the case depended on the report.

Appeal allowed. Permission to appeal was granted. The refusal to permit instruction of a paediatric pathologist was set aside and a substituted order was made requiring the local authority urgently to identify an expert and, jointly with the other parties, instruct that expert to review the post-mortem and answer the eight questions identified by Dr L.

1. Case-management discretion. A judge in care proceedings has a wide discretion to control the proceedings within the overriding objective and the children’s best interests. That discretion must nevertheless be exercised on an informed assessment of the evidence. Coleridge J acted prematurely because he predicted the consequences of the proposed evidence without first obtaining it.
2. Proper sequence. The report should have been obtained before deciding the future direction of the case. If the expert confirmed the existing post-mortem conclusion, the further inquiry would end. If the expert undermined it, the judge could then decide what additional investigation was justified. That decision could not properly be made in advance. Dr L had also properly distinguished the role of an expert from that of the court, consistently with Re: M (Care Proceedings: Best Evidence) [2007] EWCA Civ 589.
3. Relevance and welfare. The proposed inquiry was plainly relevant to the future welfare of the children and was a line of inquiry which a responsible local authority could and should pursue. The court regarded it as a serious step to prevent such an inquiry, particularly where the children’s representatives supported it. This was an additional observation, and it did not restrict the trial judge’s continuing control of the proceedings. The court referred to In re G (a Minor) (Care Order: Threshold Conditions) [1995] Fam 16 and the public-policy authorities cited at paragraph 45.
4. Delay and urgency. Delay is ordinarily contrary to children’s interests. Challenges to case-management decisions in child proceedings must be brought promptly where they raise a substantive point requiring urgent resolution. The emergency facilities described in Re S (Child Proceedings: Urgent Appeals) [2007] EWCA Civ 958 and Re A (Residence Order) [2007] EWCA Civ 899 were available, although they were not to be abused.

Nothing in the judgment expressed a view about the eventual medical findings or the outcome of the care proceedings. Future directions were left to the allocated judge in light of the paediatric pathologist’s report.

• Court of Appeal (Civil Division): [2009] EWCA Civ 610. Permission granted and appeal allowed. The refusal of permission to instruct a paediatric pathologist was set aside and a substituted order was made.
• High Court: Coleridge J, on 24 April 2009, refused the local authority’s application to instruct a paediatric pathologist, considering the proposed inquiry disproportionate because it was speculative, slow and expensive.