P-K (Children)

Permission to appeal long-out-of-time findings of fact was refused. Where parties and experts agree that injuries were inflicted, the evidence on causation and timing is unchallenged, and no clear alternative hypothesis is raised, a judge may proportionately release remaining experts without oral cross-examination. On an application to adduce fresh evidence, the material must cast doubt on the accuracy of the findings under the second limb of Ladd v Marshall. Evidence that does not address all material injuries or clarify perpetration will not meet that threshold.

Public law care proceedings followed medical investigations into injuries suffered by a child in 2009. On 17 December 2009, His Honour Judge Orrell found that the brain and lower-limb injuries were non-accidental and had been inflicted while the child was in the care of the mother, her partner, or both. The mother later applied for permission to appeal those findings.

The application was substantially out of time. The mother relied on alleged weaknesses in the medical evidence, a procedural irregularity arising from the release of expert witnesses, and new evidence from Dr Halliday. The central questions were whether the findings should be reopened and whether the new evidence met the applicable test.

1. The Court of Appeal refused permission to appeal and dismissed the appeal. The application was long out of time, but the court addressed the merits.
2. The medical evidence did not cast realistic doubt on the findings. The experts had considered alternative causative mechanisms, but, relying on their specialist expertise, had concluded that the injuries were inflicted. The parties had also conceded, or failed to challenge, important aspects of causation and timing.
3. No procedural irregularity arose from the judge releasing the remaining experts after Dr Chapman had given evidence. The court had the experts’ reports, their answers to questions, and Dr Chapman’s oral evidence. No party challenged the relevant evidence or asked for the other experts to be tendered for cross-examination. Given the limited issue, the agreement between the experts and parties, and the absence of a clear prima facie case or real possibility of an alternative hypothesis of harm, it was proportionate for the judge to proceed without further expert oral evidence.
4. The fresh evidence did not satisfy the second limb of the Ladd v Marshall test. Dr Halliday did not address the head injuries, accepted that confirmed lower-limb fractures were inflicted, and disagreed principally about additional fractures and timing. Even taken at its highest and together with the evidence available at trial, it did not provide a real reason to doubt the findings or clarify perpetration. There had therefore been no miscarriage of justice and no basis to admit the additional evidence.
5. The court observed, obiter, that the risk arising from findings concerning one child would not by itself establish the section 31 threshold for another child who was not a party to those proceedings. That issue was not before the court.

• Court of Appeal (Civil Division) — Permission to appeal refused and appeal dismissed.
• Derby County Court — His Honour Judge Orrell made findings of fact on 17 December 2009. A care order was made on 18 March 2010.