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Home > Judgments > 2012 archive

Re R (Children) [2012] EWCA Civ 687

Appeal against judgment refusing permission to instruct an expert concerning the possible cross-transmission to a child of a sexually transmitted disease. Appeal dismissed.

Case No: B4/2012/0640 + 0641
Neutral Citation Number: [2012] EWCA Civ 687
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(RECORDER FAIRWOOD AND HIS HONOUR JUDGE WALSH)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 4th May 2012

Before:

LORD JUSTICE THORPE
LORD JUSTICE AIKENS
and
LADY JUSTICE BLACK
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IN THE MATTER OF R (CHILDREN)


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(DAR Transcript of
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Mr John Jackson (instructed by Graham Stowe Bateson) appeared on behalf of the Appellant father.

Mr John Hayes (instructed by Leeds City Council) appeared on behalf of the First Respondent local authority.

The Second Respondent mother did not appear and was not represented.

Mr John Myers (instructed by Godloves Solicitors) appeared on behalf of the Fourth, Fifth, Sixth, Seventh and Eighth Respondents, the children by their Children's Guardian.

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Judgment
 
Lord Justice Thorpe:
1. This is the second respondent father's appeal from the judgment of HHJ Walsh sitting in the Leeds County Court on 21 December 2011.  The appeal proceeds pursuant to permission granted by McFarlane LJ.  The simple issue is whether or not the appellant should be allowed to instruct an expert, Dr Markos, who deals with, amongst other areas of expertise, transmission or cross-transmission of sexually transmitted diseases such as genital warts and thrush. 

2. HHJ Walsh refused to countenance the instruction, firstly on the ground of delay, which brought the application before him so close to the fixture of the preliminary issue trial as to jeopardise that fixture and to risk the eventuality that it would have to be adjourned and re-timetabled.  He also in his reasoning could not see what relevance there would be in investigation and report given that the available evidence suggested that, although the child had at one stage suffered from HPV, that had been expertly treated and that as at summer of last year a consultant paediatrician had given a clean bill of health in relation to any condition capable of sexual cross-transmission.

3. Mr Jackson points out legitimately that the situation that confronted HHJ Walsh no longer applies since the imminent fixture that he safeguarded has been lost for other reasons and there is now no pressure of time in obtaining the opinion that the second respondent wants.  However, it seems to me that Mr Hayes and Mr Myers are well founded in their submission that there is insufficient indication that a report from this expert is even tangentially relevant to the issues that a court will decide.  The child's position as at summer of last year is authoritatively established by the consultant paediatrician's report and, as Mr Hayes points out, evidence as to the second respondent's condition depends upon self reporting after he had withdrawn from the family home.  So I would simply dismiss the appeal on the grounds that the reasoning of the circuit judge was sound and the shift in circumstances relied on by Mr Jackson has no bearing at all on the reasoning as to relevance.

Lord Justice Aikens:
4. I agree

Lady Justice Black:
5. I also agree.

Order: Appeal dismissed