Re M (Children)

In children proceedings, expert evidence cannot be instructed or put before the court without permission. Permission is available only where the evidence is necessary to resolve the proceedings justly, having regard to welfare, the issues, existing evidence, timetable, cost and procedural rules. Evidence obtained unilaterally in breach of that scheme should be admitted only with caution; the court should ask whether permission would have been granted if sought in advance. A second expert opinion does not by itself justify a rehearing where existing evidence addressed the issue and the new material does not materially undermine the finding. Fresh evidence on appeal may likewise be refused where it could have been obtained at trial or would not probably affect the result.

The mother sought permission to appeal out of time against a finding that she or the maternal grandmother had administered sedatives to the children. She also challenged a later decision refusing permission to rely on reports obtained from Cansford Laboratories and refusing to reopen the fact-finding issue. Finally, she sought to admit the Cansford material as fresh evidence on the applications.

The Court of Appeal heard full argument, treated the evidence as admissible for the purpose of considering the rehearing issue, and addressed the separate questions of admissibility, reopening findings, and fresh evidence on appeal.

1. Disposition. The applications were dismissed. Permission to appeal was refused and the Cansford material was not admitted as fresh evidence.
2. Expert evidence. Section 13 of the Children and Families Act 2014 makes permission a precondition to instructing an expert or putting expert evidence before the court. Permission may be granted only where the evidence is necessary to assist the court to resolve the proceedings justly. The court must consider the statutory factors, including child welfare, the issues and questions, available evidence, timetable, cost and relevant procedural rules.
3. The admissibility requirement was not a technicality. The court should be slow to admit expert evidence obtained irregularly and should ask whether permission would have been granted had it been sought in advance. The unilateral approach to Cansford, without informing the court or other parties, weighed heavily against admission. The existing expert evidence was comprehensive, and a different interpretation did not make further evidence necessary.
4. A rehearing may be based on new opinion rather than new facts, as recognised in Re AD & AM (Fact-finding hearing) (Application for re-hearing) [2016] EWHC 326 (Fam). However, a second opinion does not require a staged dialogue between experts before the court decides the application. The judge was entitled to conclude that the Cansford material was not wholly inconsistent with his findings, did not call them into doubt, and would not justify reopening the issue. Finality, delay, welfare and the limited effect of a partial rehearing were relevant considerations.
5. The principles governing fresh evidence on appeal, reflected in Ladd v Marshall [1954] 1 WLR 1489, were not satisfied. The evidence could have been obtained for use at trial, and it was not shown that it would probably have had an important influence on the result. The possible effect on one specific finding could not affect the judge’s central conclusion or the outcome.

1. Court of Appeal (Civil Division): Dismissed the applications for permission to appeal and refused admission of the Cansford evidence as fresh evidence.
2. First-instance proceedings: His Honour Judge Lea made findings of fact on 27 March 2017 and, on 15 November 2017, refused applications to admit the Cansford evidence and reopen the findings.