W (A Child), Re

Case-management decisions on expert evidence attract appellate restraint. Under s13 of CAFA 2014 and Part 25, a further expert report should be ordered only where it is necessary to assist the court to deal with proceedings justly. Direct factual evidence from the professional involved in the relevant event may be preferable to another paper expert opinion, particularly where existing expert evidence addresses the issue and there is no factual basis for the proposed alternative explanation. The seriousness of possible separation of a child from parents and the Article 8 implications must be considered, but they do not make every additional report necessary. Intervention is unwarranted where the decision is sustainable, justified and supported by cogent case-management reasoning.

M sought permission to appeal against an order made by HHJ Parker on 17 May 2016, and also sought a stay of a five-day fact-finding hearing concerning W. The proposed appeal concerned the refusal to direct a further report from an expert obstetrician.

The proceedings involved allegations that W had suffered non-accidental injury, including a possible healing rib fracture. After the lower court’s decision, the statement and contemporaneous notes of the doctor who performed W’s Caesarean section were obtained. They indicated an uncomplicated and easy delivery. The central issue was whether a further paper expert report was necessary before the fact-finding hearing, having regard to the existing medical evidence, the timetable and the possible Article 8 consequences.

Disposition. Lord Justice Davis refused permission to appeal and refused the requested stay.

1. Applicable approach. The decision whether to obtain an additional expert report was a discretionary case-management decision. Under s13 of CAFA 2014 and Part 25, the judge had to consider whether the report was necessary to assist the court to deal with the proceedings justly. Re TG (A Child) [2013] EWCA Civ 5 and Re H-L (A Child) [2013] EWCA Civ 655 identified factors ordinarily relevant to that evaluation. Article 8 also had to be borne in mind because the proceedings could result in separation of the child from the parents.
2. Assessment of the proposed evidence. The lower court already had expert evidence from a paediatrician and a paediatric radiologist. The radiologist deferred to the paediatrician on causation. The newly obtained delivery records indicated no complication, undue force or unusual feature capable of providing a factual basis for a birth-injury theory. The appropriate missing evidence was therefore the factual statement of the doctor who performed the delivery, rather than another expert paper report.
3. Appellate restraint. The application for an obstetrician’s opinion was properly characterised as a fishing expedition. The judge had addressed the importance of a fair trial and the timetable. His reasoning was cogent, sustainable and justified, and could not be regarded as unreasonable. The Article 8 significance of the case did not require unnecessary expert work.
4. Further evidence. The order preserved liberty to apply on 48 hours’ notice, supported by a Practice Direction-compliant application, if further evidence emerged capable of justifying reconsideration.

1. Court of Appeal (Civil Division): On 3 June 2016, in [2016] EWCA Civ 542, Lord Justice Davis refused permission to appeal and refused a stay.
2. Warrington County Court (Family Court in Liverpool): HHJ Parker’s order dated 17 May 2016 refused the request for a further expert obstetrician’s report.