TG (A Child)

Permission to adduce expert evidence in family proceedings depends on whether it is reasonably required to resolve the proceedings. Admissibility alone does not establish that requirement. The court must assess the proposed evidence’s likely assistance, factual foundation, scientific limitations, cost and implications for the timetable. It must consider the forensic stakes and remain open to unfamiliar or developing disciplines.

Appellate interference with a case management decision requires an error of principle, reliance on irrelevant matters, omission of relevant matters or a decision outside the generous ambit of discretion. Article 6 requires a full merits investigation and proceedings that, taken as a whole, are fair. It does not confer an unrestricted right to call evidence. Speculative biomechanical reconstruction may properly be refused where its prospect of assisting the court falls short of the applicable expert evidence threshold.

A local authority commenced care proceedings concerning an infant, TG, and his two older siblings after TG was found to have multiple fractures and intracranial and retinal haemorrhages. The father described finding TG’s bouncy chair overturned, with an older sibling sitting over him. Neither parent had witnessed how the chair overturned. The parents suggested that this incident could explain at least some of the injuries.

His Honour Judge Bellamy, sitting as a High Court judge, authorised five medical experts. The father also sought permission to obtain biomechanical evidence from Dr Van Ee, who proposed experiments to investigate possible mechanisms and forces. Following earlier refusals, the judge dismissed the renewed application on 5 December 2012. He considered the proposed evidence’s likely benefit insufficient to justify its cost and the risk of delaying the fact-finding hearing.

The father appealed, supported by the mother. The local authority and children’s guardian opposed the appeal. A letter from an instructed neuroradiologist supporting biomechanical evidence was admitted provisionally. The central questions were whether the refusal exceeded the judge’s case management discretion and whether it deprived the father of a fair hearing.

1. Permission to appeal was granted, but the appeal was unanimously dismissed. The judge had directed himself correctly, considered the relevant matters and exercised his discretion reasonably. There was no proper basis for appellate interference (paras [22], [55]–[56], [79]–[80], [86]).

2. The issue was whether the proposed evidence was reasonably required under rule 25.1 of the Family Procedure Rules 2010. Its admissibility and the expert’s credentials were unchallenged. Rule 22.1(2) nevertheless permitted exclusion of otherwise admissible evidence. Active case management required scrutiny of the issues, necessary investigation, likely benefit, expense and timetable (paras [24]–[29], [58]).

3. The court had to assess the likely assistance of the particular evidence in its forensic context. The stakes in care proceedings required vigilance against miscarriages of justice, but a parent was not entitled to an expert merely by asking. Judges must remain open to unfamiliar disciplines while recognising unreliable science and the possibility of unknown causation. Non-accidental injury could not simply be inferred from the absence of an understood alternative mechanism (paras [31]–[34], [86]).

4. Appellate intervention was confined to errors of principle, consideration of irrelevant matters, omission of relevant matters or a decision plainly outside the generous ambit of discretion. Applying Piglowska v Piglowski, the court must resist substituting its discretion through a narrow textual analysis of the judge’s reasons. Robust case management remained subject to the requirement of a fair trial (paras [35]–[38], [56], [85]).

5. Article 6 required a full merits investigation and proceedings that were fair as a whole. Proper application of the statutory scheme and Rules satisfied those requirements. The forthcoming High Court hearing would investigate the merits fully, and excluding the proposed expert evidence caused no unfairness (para [59]).

6. The proposed biomechanical work faced three substantial difficulties. The unwitnessed incident admitted several materially different scenarios. Experiments involving other toddlers could not reliably establish this sibling’s capabilities. Understanding of the relationship between impact forces and particular infant injuries remained imperfect, and the proposed risk curve had not been adequately explained. The prospect of useful evidence therefore fell well short of the reasonably required threshold (paras [65]–[67]).

7. By way of prospective guidance, the amended rule 25.1, effective from 31 January 2013, would impose a significantly higher necessity threshold. Its precise meaning remained open. Biomechanical evidence might satisfy that threshold in future cases, although such cases were likely to be infrequent in the existing state of science (paras [30], [68]).

8. The court also emphasised the local authority’s burden of proving disputed historical threshold facts on the balance of probabilities and the safeguarding role of skilled advocacy. Unnecessary duplication of publicly funded representation should cease. Parties sharing an interest should have separate representation only where an unavoidable legal conflict required it; written submissions might suffice. No adverse finding was made against the lawyers in this appeal (paras [70]–[77]).

• Court of Appeal (Civil Division): On 20 December 2012, granted permission to appeal and dismissed the appeal. Reasons were handed down on 22 January 2013 in [2013] EWCA Civ 5 .
• High Court, Family Division, Leicester District Registry: His Honour Judge Bellamy heard the renewed expert evidence application on 3 December 2012. On 5 December 2012, he dismissed it and refused permission to appeal. No citation for that judgment is supplied.
• Earlier case management: Permission to obtain biomechanical evidence was refused on 1 October 2012 and again on 18 October 2012. On the latter occasion, the father was permitted to obtain an interim report addressing relevance, proposed testing and compliance with the existing timetable.