M v Derbyshire County Council & Ors

Permission to reopen earlier findings of fact in child-protection proceedings requires a three-stage process. At the first stage, the applicant must show a solid ground for challenge or some real reason to believe that the findings require revisiting. Mere hope, speculation, or reliance solely on the public interest in identifying perpetrators is insufficient.

The court must balance finality in litigation against the public interest in accurate identification of those responsible for serious injuries. It must consider advances in medical knowledge and evaluate fresh evidence alongside the earlier evidence as a whole. Expert evidence obtained without proper permission or compliance with the Family Procedure Rules may properly be excluded, particularly where the proposed expert lacks objectivity or relevant expertise.

The mother applied for permission to reopen findings made by HHJ Watson in 2010 during care proceedings concerning two children. The findings were that the mother and father could not be excluded from the pool of perpetrators of a skull fracture and a metaphyseal femoral fracture suffered by one child.

Care and placement orders had subsequently been made, followed by adoption orders. Neither parent sought to challenge the children’s adoption or placement. The application relied principally on later diagnoses and opinions concerning hypermobility-type Ehlers-Danlos syndrome and vitamin D deficiency, together with proposed expert evidence.

The central issues were whether the fresh material satisfied the first stage of the test for reopening findings and whether reports obtained without proper expert-instruction procedures should be admitted.

1. Three-stage approach. The court adopted the approach in Birmingham City Council v H, H & S and Re ZZ and Others: first, whether reconsideration should be permitted; second, the extent of the investigation and evidence; and third, whether the earlier finding should stand in light of the totality of the evidence.
2. At stage one, the applicant need not show a real prospect of success. The applicant must nevertheless establish a solid ground for challenge or some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are insufficient. The public interest in identifying accurately those responsible for serious injuries is important, but it does not itself satisfy the threshold.
3. The court must recognise the tension between finality and accurate fact-finding. It should consider whether medical knowledge or expertise has advanced since the original hearing. At any rehearing, the fresh evidence must be considered alongside the earlier material, with an overview of the totality of the evidence.
4. Under section 13 of the Children and Families Act 2014, expert evidence may be permitted only where necessary to assist the court to resolve the proceedings justly. The court must take account of the statutory factors, together with Part 25 of the Family Procedure Rules 2010 and the relevant practice directions. Reports obtained without permission and without compliance with expert duties may be excluded.
5. The reports of Dr Ayoub and Professor Holick were irregularly obtained. Dr Ayoub lacked the necessary paediatric-radiology expertise and had an approach inconsistent with the objectivity required of an expert. Professor Holick provided unsupported and highly confident opinions, had not examined the relevant individuals, and had not complied with the expert requirements. Their reports were excluded.
6. The court admitted Dr Chapman’s evidence. Although the formal requirements had not been fully followed, he was an eminent consultant paediatric radiologist and had understood his forensic duties.
7. The later medical evidence did not establish that the child had hypermobility-type Ehlers-Danlos syndrome or vitamin D deficiency at the relevant time. Even assuming those conditions, the expert evidence did not show that fractures would occur without inappropriate force or trauma. The earlier findings concerning the twisting and pulling mechanism, the absence of an accidental explanation, and the child’s expected distress remained materially unaffected.
8. The mother therefore failed to establish a solid ground for challenge or a real reason to believe that the findings required revisiting. A further report from Dr Saggar was unnecessary. The application for a rehearing was without merit and was dismissed.

Not an appeal. The judgment records earlier care, placement and adoption orders and unsuccessful challenges, but this court determined an application for permission to reopen the 2010 findings of fact.