R v A Local Authority & Ors

Applications for a second expert report in family proceedings are matters of judicial discretion. The court must ask whether the report is needed for a fair and proper decision and what it would add. A further report generally requires a good reason once a suitable first report exists. Delay, expense, scarcity of experts and court resources are relevant, but no rigid distinction between medical and non-medical evidence governs the decision. An appellate court should intervene only for an error of law or a decision outside the generous ambit of reasonable disagreement. Factual disputes and credibility remain for the judge. A refusal is compatible with a fair hearing where the process is transparent and reasoned.

Care proceedings concerning a young child resulted in a supervision order under Part IV of the Children Act 1989 and supervised contact for the child’s father. The father disputed threshold findings and challenged the expert evidence concerning risk.

A joint instruction led to a report from a practitioner at the Lucy Faithfull Foundation. The father later sought a second expert report. The district judge refused the application after hearing the evidence, finding the first report accurate and thorough and that a further report would not advance the case. Her Honour Judge Hughes QC dismissed the father’s appeals. The central issue before the Court of Appeal was whether refusing a second report was an error of law or rendered the hearing unfair.

Disposition. The appeal was dismissed unanimously. The reporting restriction continued because publication identifying the child or adults was prohibited.

1. The decisions to proceed with the hearing and to refuse a second expert report were exercises of judicial discretion. A judge was entitled to hear the oral evidence before deciding whether another report was needed: Re B (Minors) (Contact) [1994] 2 FLR 1.
2. The appellate court applied the established restraint described in Bellenden (formerly Sattersthwaite v Sattersthwaite) [1948] 1 All ER 343 and G v G [1985] 1 WLR 647. A different possible decision is insufficient. Intervention requires an error of law or a decision outside the generous ambit of reasonable disagreement.
3. In family proceedings, permission for an additional expert report must be decided on its merits under the Family Procedure Rules 2010, the Practice Direction and the Overriding Objective. The critical questions are whether the report is needed for a fair and proper decision and what the additional expert would add. The court may consider the adequacy of the existing report, fairness, delay, expense, scarcity of experts and court resources. The approach in Re SK (Local Authority: Expert Evidence) [2007] EWHC 3289 supplied the need for a good reason once a first report had been obtained, but a rigid medical/non-medical distinction was unhelpful.
4. The first expert was appropriate for the task. The disputed matters were substantially factual and concerned credibility, which were for the district judge. The evidence could be tested by cross-examination, and the refusal of a further report did not breach Article 6 or make the proceedings unfair.
5. The supervised-contact decision was made in the overall context of the child’s welfare. The district judge considered the guardian’s view, the welfare checklist in section 1(3) of the Children Act 1989, the care plan and the no-order principle. The decision therefore complied with Article 8 and was one the judge was entitled to reach. W v Oldham and KPW [2005] EWCA Civ 1247 was highly unusual on its facts and did not require a different result.

• Court of Appeal (Civil Division): dismissed the father’s appeal against the refusal of a second expert report. The judgment is reported at [2011] EWCA Civ 1451.
• Principal Registry of the Family Division: Her Honour Judge Hughes QC dismissed the father’s appeals from the district judge’s orders.
• Inner London and City Family Proceedings Court: made a supervision order and directed supervised contact after refusing a further expert report.