C (A child), Re

In an application for permission to appeal seeking to reopen a care fact-finding decision on the basis of developing medical knowledge, a theoretical medical possibility is insufficient. The new evidence must provide a proper evidential and clinical basis for concluding that the original findings may be wrong. Where an applicant has obtained an expert opinion of choice and that opinion is adverse, further adjournments for additional expert evidence will generally be unwarranted, particularly where delay harms the child. Vitamin D deficiency at birth does not itself establish congenital rickets or prenatal bone weakness. A deficiency may resolve within four weeks, whereas inadequate bone formation would not. The court must remain open to advances in medical knowledge, but that does not require reconsideration of robust findings unsupported by the new evidence.

C sustained multiple fractures and genital symptoms during the first weeks of life. In care proceedings, HH Judge Carr QC found that the injuries had been inflicted by one or both parents, later made a full care order, refused an application to reopen the fact-finding process and authorised placement for adoption.

The parents sought permission to appeal, relying on developing understanding of vitamin D deficiency and on London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam). The Court of Appeal adjourned the application once so that the parents could obtain an expert report. The central issue was whether that report justified further investigation or gave a reasonable prospect of overturning the earlier findings.

Permission to appeal and adjournment refused. The parents had no reasonable prospect of persuading the full Court of Appeal to overturn the refusal to reopen the fact-finding process. Their application for a further adjournment to obtain opinions from the original experts and a new expert was unsustainable.

1. The Court approached the application with an open mind because medical knowledge may develop and because care and adoption orders have serious consequences. That approach required careful examination of the new material, not acceptance of a merely intellectual possibility.
2. Probable vitamin D deficiency at birth did not establish congenital rickets or show that C’s bone formation had been impaired before birth. Rickets was a systemic condition which continued unless treated. Vitamin D deficiency could resolve within four weeks without leaving evidence of continuing bone weakness.
3. The decisive point was the absence, at four weeks, of evidence of bone weakness or abnormality. The normal-looking X-rays and blood tests, together with the evidence of healing, were conclusive in this case against inadequate bone formation at birth. The parents’ argument wrongly conflated transient vitamin D deficiency with persistent weakened bone.
4. The other alleged signs of congenital rickets had been considered at the original fact-finding hearing and were not diagnostic. The genital symptoms were not shown to result from infection or vitamin D deficiency and were not medically linked to the fractures. Professor Nussey’s reports stated that vitamin D deficiency was unlikely to have caused the bone fragility, that the liver readings were only mildly abnormal, and that no medical condition accounted for the injuries.
5. Once an applicant had been allowed to obtain an expert report from an expert of choice, and that report was wholly adverse and remained adverse after further questions, it became very difficult to justify further expert investigation. The child’s prolonged stay in public care made the consequences of further delay particularly important. Permission to appeal was therefore refused.

1. Court of Appeal (Civil Division): Lord Justice McFarlane refused permission to appeal and refused a further adjournment for additional expert evidence.
2. Sheffield County Court, Sheffield District Registry: HH Judge Carr QC refused the parents’ application to reopen the fact-finding process and authorised the local authority to place C for adoption on 18 June 2012. The earlier proceedings had resulted in a finding that the injuries were inflicted and a full care order.