T (Fresh Evidence on Appeal), Re

Fresh evidence on appeal is governed by the discretion in CPR 52.11(2)(b), exercised in accordance with the overriding objective. The Ladd v Marshall criteria remain important considerations, but they are not rigid rules. In children’s cases the court may adopt a more flexible approach because welfare decisions should rest on sound factual findings, while preserving the finality of properly reached decisions. The evidence must nevertheless be reliable and there must be a real possibility that, if admitted, it would have an important influence on the outcome. A possible neurodevelopmental diagnosis will not itself establish procedural unfairness. The court must assess whether the diagnosis materially undermines the findings and process. Where independent evidence supports central findings that are not materially affected by the diagnosis, fresh evidence may properly be refused and permission to appeal denied.

The father applied for permission to appeal against care and placement orders made by the Family Court at Reedley in respect of his daughter. After the final hearing, he obtained a privately commissioned report diagnosing autistic spectrum disorder and sought to adduce it as fresh evidence. He argued that the diagnosis undermined the parenting assessments and the fairness of the hearing because the professionals and court had not made adjustments for possible neurodiversity.

The local authority and children’s guardian opposed admission of the report, relying on its deficiencies and on the substantial evidence supporting the recorder’s findings. The Court of Appeal considered the application under CPR 52.11(2)(b), the Ladd v Marshall criteria and the flexible approach applicable in children’s appeals. The central questions were whether the report was reliable and whether it could have an important influence on the outcome.

1. Application refused. The report was not admitted as fresh evidence and permission to appeal was refused. The first ground had no merit, and the proposed second ground did not establish a serious procedural irregularity rendering the decision unjust.
2. Under CPR 52.11(2)(b), the appellate court has a discretion whether to receive evidence not before the lower court. That discretion must be exercised in accordance with the overriding objective. The three Ladd v Marshall criteria remain powerful and relevant considerations, but they are no longer primary rules constitutive of the court’s power.
3. In children’s welfare cases the approach is flexible, because welfare decisions should be based on sound factual findings and may have profound consequences. Flexibility does not mean laxity. The appropriate question under the important-influence criterion was whether there was a real possibility that admission of the evidence would materially influence the outcome.
4. The report was unreliable for several cumulative reasons. It had not been prepared under the expert-evidence safeguards in Part 25 of the Family Procedure Rules 2010 and Practice Directions 25B and 25C. The court and parties had not scrutinised the assessor’s suitability or instructions, the report did not show access to relevant medical records or consideration of differential diagnoses, and it was substantially based on the father’s self-reporting despite findings of dishonesty and earlier concerns about exaggeration and confabulation.
5. Even assuming the diagnosis might bear on some identified risks, it did not create a real possibility of an important influence on the result. The recorder’s findings of dishonesty, the risks arising from the parents’ relationship, the prevailing risk of relapse into alcohol misuse, and the father’s inability to provide consistent care despite extensive assessment and support were supported by evidence not materially compromised by the possible diagnosis. The fact that a diagnosis might have led to tailored assessments or measures for giving evidence did not displace those independent findings.
6. A failure to identify cognitive difficulties or make appropriate arrangements for vulnerable evidence may in some cases constitute a serious procedural irregularity, as recognised in Re S (Vulnerable Party: Fairness of Proceedings). It does not do so in every case. Where other evidence independently supports the findings, the decision need not be disturbed.

• Court of Appeal (Civil Division): refused permission to appeal from the Family Court at Reedley and refused to admit the proposed fresh evidence.
• Family Court at Reedley: made care and placement orders in respect of T after the final hearing in April 2024. The recorder’s case number was PR23C50111.