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GW and Another v Oldham MBC and Another [2005] EWCA Civ 1247

Consideration, on appeal allowed by consent, of court's reliance on single expert in care proceedings.

GW and Another v Oldham MBC and Another [2005] EWCA Civ 1247

Court of Appeal: Thorpe and Wall LJJ and Black J (31 October 2005)

Consideration, on appeal allowed by consent, of court's reliance on single expert in care proceedings.

This was an appeal, allowed by consent, against an order in care proceedings that the injuries to the child, born in November 2004, had been caused by one of the parents (but the judge was unable to say which) and that the threshold criteria in section 31(2) of the Children Act 1989 had been met. In an otherwise impeccable judgment, the cause for concern was that the judge, in making the order, had relied on the evidence of a single expert in the critical field of paediatric neuro-radiology or, more specifically, non-accidental head injury (NAHI).

At the case management conference in February 2005, an application supported by both parents to instruct a second medical expert was refused by the judge; and renewed applications at a further directions hearing and at the outset of the fact finding hearing were similarly refused. The judge expressed her satisfaction with the medical evidence that had been presented, and rejected any suggestion that there had been a breach of the parents' ECHR Article 6 rights.

After the fact finding hearing, permission was granted to release the papers to a second expert, whose report expressed a clear and fundamental disagreement with the first expert, and supported the parents' case that the injuries had an innocent origin. In these circumstances, all the parties agreed that the judge's findings could not stand, and that the case would have to be remitted to a judge of the Family Division for re-hearing.

The purpose of this judgment, therefore, was to consider: (1) the advisability of the court relying on a single expert in care proceedings, when the issue that expert has to address is of central importance to the judge's findings; and (2) the propriety of permitting parents who deny abusing their child a second opinion.

The parents in the position of this mother and father were clearly entitled to a second opinion: whilst it would be both unrealistic and unnecessary for the court to permit parents to obtain a second opinion in every discipline, such a second opinion should normally only be permitted where the question to be addressed by the chosen expert went to an issue of critical importance for the judge's decision in the case.

The case of Daniels v Walker [2000] 1 WLR 1382, on the judicial approach to be adopted when a single expert who has been jointly instructed makes a report which one side or the other is unhappy with, was applicable – although it should be treated with some caution from a family law perspective, since experts in family proceedings are a scarce resource; also, it was not necessary to see any appeal along these lines in ECHR Article 6 terms, since the overriding objective in the Civil Procedure Rules (which applies in family proceedings) is that cases must be dealt with justly.

This judgment was not to be seen as an encouragement to a disappointed party to challenge pre-final hearing case management decisions; however, such decisions could, as in this case, throw up points of fundamental importance and, in such circumstances, a party should not hesitate to seek permission to appeal.

The court also drew attention to the importance of timetabling in care cases, in particular the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719. Further, it commented on the position of the local authority and the guardian respectively: the former is faced with a difficult position in contested care proceedings involving NAHI, requiring a delicate balance between the need to make out a case and the duty to place all relevant information before the court; and the latter has a proactive role to play in ensuring that a case is ready for hearing, and that all the appropriate evidence has been assembled; accordingly, if a guardian takes the view that a second opinion sought by parents is properly necessary to achieve justice, he or she should not hesitate to say so.

Read the full text of the judgment here