TG (A Child)

Permission for expert evidence in care proceedings depends on whether the evidence is reasonably required to resolve the proceedings. The case-management judge must assess its likely forensic assistance in the particular case, its cost and effect on the timetable, the stakes for the family, and the limits of current scientific knowledge. A parent is not entitled to an expert merely on request.

Biomechanical evidence may be appropriate in a future case, but it is not reasonably required where an unwitnessed incident admits of materially different speculative reconstructions and the connection between calculated forces and an infant’s injuries is uncertain. An appellate court will rarely interfere with a robust but fair case-management decision unless it discloses an error of principle or is plainly wrong.

TG, then an infant, was the subject of care proceedings after sustaining fractures and intracranial and retinal injuries. The father and mother relied on an account in which TG’s older sibling may have overturned a bouncy chair while TG was strapped into it.

His Honour Judge Bellamy, sitting in the High Court, refused the father permission to obtain a biomechanical engineer’s report. Five medical experts had already been instructed. The judge concluded that the proposed evidence was not reasonably required, would offer limited benefit, and might cause disproportionate cost and delay.

The father appealed, contending that the evidence was necessary to test whether the alleged accident could have generated the relevant forces and that its exclusion was unfair. The central issue was whether the refusal fell outside the judge’s case-management discretion.

1. Permission to appeal was granted, but the appeal was dismissed. Judge Bellamy had correctly applied the governing case-management principles. His decision was reasonable and disclosed no error of principle, irrelevant consideration, omission of a relevant consideration, or plainly wrong exercise of discretion.

2. Under the Family Procedure Rules 2010, expert evidence was restricted to that which was reasonably required to resolve the proceedings. The court must actively identify the issues requiring investigation, control evidence, assess likely benefit against cost and delay, and remain alert both to the risk of bad science and to the possibility that unfamiliar science may assist. A parent in care proceedings is not entitled to an expert merely because permanent removal is in issue: see Re S; WSP v Hull City Council [2006] EWCA Civ 981.

3. Article 6 did not entitle the father to call any evidence he wished. A properly managed fact-finding hearing would remain a full merits investigation and fair when taken as a whole. The statutory and procedural scheme was Convention compliant, and the refusal of this proposed evidence caused no unfairness.

4. The application failed on its facts. There was no witnessed incident to reconstruct. It was unknown whether the chair had been pulled, pushed, or sprung forward, whether the sibling’s weight was involved, and whether he landed on TG. Those alternatives could produce materially different calculated forces. Experiments could not reliably establish whether this particular sibling could exert the relevant force, and the science could not reliably connect proposed force values with the injuries. The prospect of useful assistance therefore fell well short of the reasonably required test.

5. The court did not exclude future biomechanical evidence as a class. Such evidence might satisfy the later, stricter necessary test in an appropriate case, although cases in which it would significantly assist were likely to be infrequent on the present state of the science. Case-management judges must keep an open mind.

In obiter observations, the court stressed that a local authority seeking to establish threshold on past events bears the burden of proof on the balance of probabilities. It also warned against unnecessary duplication of publicly funded representation where parties have the same legal interest.

• Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed: [2013] EWCA Civ 5.
• High Court of Justice, Family Division, Leicester District Registry: His Honour Judge Bellamy, sitting as a judge of the High Court, refused the father permission to adduce biomechanical engineering evidence in the care proceedings.