McC (A Child), Re

A party seeking to adduce fresh expert evidence in support of an application for permission to appeal, or an appeal, must satisfy the conditions in Ladd v Marshall. The party must also obtain the Court of Appeal’s permission before instructing a fresh expert and releasing court papers to that expert.

Where an overseas expert is proposed, the party should address why no United Kingdom-based expert is suitable, what efforts have been made to find one, and the financial consequences of the proposed instruction.

In public law proceedings concerning a child who had sustained four fractures in her first ten weeks, a fact-finding judge held that the injuries were non-accidental and that the parents were the only possible perpetrators. No appeal was brought against those findings.

At the subsequent welfare hearing, HHJ Elly made a care order and placement order and terminated contact. The mother later sought permission to appeal out of time. McFarlane LJ adjourned that application and directed, among other matters, an explanation for the delay and amendment of the appellant’s notice to challenge the fact-finding order.

At the resumed hearing, the mother applied to adduce a preliminary report from an American paediatrician. The central issue was whether that fresh evidence should be admitted.

1. The application was refused. Thorpe LJ, with whom Rimer LJ and Dame Janet Smith agreed, held that the proposed report did not begin to satisfy the conditions identified in Ladd v Marshall.

2. The manner in which the report had been obtained provided further independent reasons for refusal. The respondents had received no notice that another expert would be approached. No permission had been sought from the Court of Appeal either to instruct the expert or to release court documents. The documents supplied were neither comprehensive nor apparently neutral.

3. The court emphasised that an applicant for permission to appeal, and an appellant who has obtained permission, must seek the court’s leave before instructing a fresh expert and releasing court papers for an adjourned permission application or an appeal.

4. Where the proposed expert is from another jurisdiction, the court should have regard to the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases. The application should explain why a United Kingdom-based expert is not to be used, what efforts have been made to identify a suitable expert in the United Kingdom, and the financial implications of the overseas instruction.

5. The mother had had opportunities to seek the court’s permission but instead acted unilaterally. The report was therefore inadmissible.

1. Court of Appeal (Civil Division): On the mother’s preliminary application in [2012] EWCA Civ 165, the court refused permission to adduce fresh expert evidence. The substantive application for permission to appeal remained the wider context of the application.

2. Court of Appeal (Civil Division): On 8 December 2011, McFarlane LJ adjourned the mother’s application for permission to appeal for an oral hearing on notice and gave preparatory directions.

3. Reading County Court: On 23 March 2011, HHJ Elly made a care order and placement order and, apparently, terminated contact.

4. Reading County Court: On 28 October 2010, HHJ McIntyre found that the child’s injuries were non-accidental and that the parents were the only possible perpetrators.