T (Fresh Evidence on Appeal), Re

This Court considered an application by a father for permission to appeal against care and placement orders and to adduce a post‑hearing report diagnosing him with autistic spectrum disorder (ASD) as fresh evidence. The legal test for admitting fresh evidence on appeal under CPR 52.11(2) was applied with reference to the Ladd v Marshall criteria as interpreted in subsequent authorities, recognising a measure of flexibility in children cases. The Court refused to admit the report because of serious reliability and procedural defects in its production (non‑compliance with Family Procedure Rules Part 25 and Practice Directions, lack of court‑ordered instructions, no access to medical records, and heavy reliance on self‑reporting from a witness found to be dishonest) and because, on the facts, the proffered evidence would not probably have had an important influence on the result: the recorder’s principal findings about the father’s dishonesty, alcohol risk, the unhealthy parental relationship, and the assessment centres’ evidence were not materially undermined by the ASD diagnosis. Permission to appeal was refused.

The father appealed by way of permission application to the Court of Appeal against care and placement orders made at a four‑day final hearing in the Family Court. He sought permission to rely on a post‑hearing psychological report diagnosing him with autistic spectrum disorder and contended that ignorance of that diagnosis at the assessment and hearing stages amounted to a procedural irregularity rendering the decision unfair. The father sought either the return of the child or an extension of proceedings for further assessment; the local authority sought placement for adoption and the children’s guardian supported that application.

The Court framed the principal issue as whether the proposed fresh evidence should be admitted on appeal under CPR 52.11(2), applying the familiar Ladd v Marshall considerations (whether the evidence could with reasonable diligence have been obtained for the trial, whether it would probably have had an important influence on the result, and whether it was apparently credible), while recognising that children cases require appropriate flexibility.

The Court rejected admission of the report for several reasons: it did not comply with the expert instruction and disclosure requirements of Family Procedure Rules Part 25 and Practice Directions 25B/25C (no Part 25 permission, no proper letter of instruction, omitted statements required by Practice Direction 25B, and no statement of truth); the expert’s credentials and suitability had not been tested; the expert did not appear to have had access to the father’s medical records or other materials needed to consider differential diagnoses or co‑existing conditions; and the assessment relied predominantly on the father’s self‑reporting despite an evidential backdrop of dishonesty. On the second Ladd v Marshall limb the Court concluded there was not a real possibility that the report would have had an important influence on the outcome because the recorder’s core findings (dishonesty, alcohol relapse risk, the enmeshed and risky parental relationship, and repeated failures in consistent caregiving across residential assessments) were supported by extensive independent evidence and were not materially undermined by the ASD diagnosis. The Court therefore refused permission to appeal.

The Court noted the governing law (CPR rule on fresh evidence; Ladd v Marshall criteria; authorities emphasising flexibility in welfare appeals) and emphasised that while a failure to identify cognitive or neurodevelopmental needs may in some cases amount to a serious procedural irregularity, that was not established on these facts.

Appeal dismissed (permission to appeal refused). The Court refused to admit the post‑hearing ASD assessment as fresh evidence because the report suffered significant reliability and procedural deficiencies under the Family Procedure Rules and Practice Directions and, in any event, it would not probably have had an important influence on the result given the recorder’s findings supported by extensive independent evidence.

Appeal from the Family Court at Reedley (Recorder Gough) PR23C50111 arising from care and placement order proceedings (final hearing April 2024). Notice of appeal filed 16 May 2024; application to admit fresh evidence (Ms D report dated 5 July 2024) considered by the Court of Appeal in these proceedings [2024] EWCA Civ 1384.