G (A Child)

An appellate court should admit fresh evidence only after a rigorous assessment of the established criteria and the overriding objective. In children’s cases, welfare consequences may justify admission in finely balanced circumstances, but they do not displace finality after due process or create a generally relaxed approach. A report based on material available at trial, offering merely a different expert opinion and unlikely to influence the result, will not ordinarily satisfy the test. The court also provisionally indicated that a sealed final order cannot be reopened at first instance and that any challenge belongs in the appellate court, but expressed no final view because that issue was unnecessary to the decision.

The mother sought permission to appeal out of time against care and placement orders made by Chelmsford County Court on 12 December 2012. She relied on a report by Dr Squier, obtained after the orders, which proposed alternative medical explanations for the child’s injuries and referred to the mother’s streptococcal infection.

The local authority opposed admission of the report. The father supported the mother and the Children’s Guardian took a neutral position. The central issues were whether the report satisfied the principles governing fresh evidence on appeal and whether the first-instance court had jurisdiction to reopen concluded factual findings or authorise expert evidence for that purpose.

Disposition. The application to admit fresh evidence was refused. Permission to appeal was consequently refused unanimously, since the proposed appeal had no realistic prospect of success and there was no other compelling reason for it to be heard.

1. The discretion under rule 52.11 of the Civil Procedure Rules had to be exercised consistently with the overriding objective in rule 1.1. Ladd v Marshall [1954] 1 WLR 1489 remained powerful persuasive authority, and its criteria effectively covered the relevant considerations.
2. The fact that a case concerned a child did not justify a generally less rigorous approach. Finality following due judicial process was itself consistent with the child’s best interests. Welfare consequences and the potentially serious effect of the decision could, however, make admission more readily appropriate in a finely balanced case.
3. The report’s discussion of infection was of little weight because Dr Squier lacked relevant expertise and offered no useful opinion on the issue. The wider alternative explanation relied on material available before the fact-finding hearing, and the possibility of infection and birth injury had already been explored. The existing experts were unchallenged, and there were serious grounds for considering the alternative explanation scientifically insecure. A party’s later discovery of an expert with a different view was not, by itself, a proper basis for admitting fresh evidence.
4. Credibility or professional standing did not remove the requirement that proposed evidence have relevance and substance and be capable of affecting the outcome. The court was prepared to treat the report as credible for the application, but it did not satisfy those requirements.
5. Lady Justice Macur expressed provisional, obiter views on the procedural questions. In light of Re L and B (Children) [2013] UKSC 8, she considered that a sealed final order could not be reopened by the first-instance court. She further considered that rule 25.4(3) of the Family Procedure Rules concerned expert evidence necessary to resolve extant proceedings within that court’s jurisdiction, not evidence obtained for a prospective appeal. A contrary expert opinion could not, without redetermination of the factual issue, establish a change of circumstances for an application under section 47(5) of the Adoption and Children Act 2002. Lord Justice Floyd and Lord Justice Briggs expressly declined to give a final view on those procedural issues.

• Court of Appeal (Civil Division) — The applications to admit fresh evidence and for permission to appeal out of time were refused: [2014] EWCA Civ 1365.
• Chelmsford County Court — HHJ Lochrane made care and placement orders on 12 December 2012 following findings of non-accidental injury.