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McC (A Child) [2012] EWCA Civ 165

Judgment on a preliminary application to adduce fresh medical evidence in the context of an appeal against final care and placement.

The proceedings concerned a young baby who was taken into interim care at the age of 10 weeks, having suffered a number of injuries. A fact-finding hearing took place in October 2010 at which it was found that the injuries were non-accidental and that the parents were the only possible perpetrators. At the welfare hearing, which took place in March 2011, care and placement orders were made.

Thereafter, the child was placed with prospective adopters and an application was made for her adoption. However, in October 2011 the mother, appearing in person and assisted by a McKenzie friend, applied for permission to appeal the welfare judgment.  At the oral hearing permission was not given, but the application was adjourned to be heard with appeal to follow and a number of directions were made.

Shortly thereafter, the mother's McKenzie friend obtained employment as a paralegal and the mother secured public funding through the same firm. Shortly before funding was obtained the mother's solicitors approached an expert witness in the US, Dr Barnes, seeking a report. A preliminary report was duly obtained but not filed or served until the morning of the appeal hearing.

In refusing the application to admit the report, Thorpe LJ referred to (a) the failure of the report to satisfy the conditions in Ladd v Marshall; (b) the flawed manner of production of the report; (c) the failure to obtain permission to release documents to the expert or for the expert's instruction; (d) the manner of instruction; and (e) the lack of notice to the other parties. His Lordship pointed out that there is an obligation on an appellant to seek permission from the court before releasing documents and instructing experts to provide reports for the purposes of an appeal or application for permission. Reference should be had to the FJC's recently published Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, which by extension apply to appellate proceedings. Rimer and Smith LJJ agreed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Case No: B4/2011/2705
Neutral Citation Number: [2012] EWCA Civ 165

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 19th January 2012


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(DAR Transcript of
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Ms Obi Exekpazu (instructed by Messrs Brendan Fleming) appeared on behalf of the Applicant mother.

Mrs Jo Delahunty QC (instructed by Wokingham Borough Council) appeared on behalf of the Respondent local authority.

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

The Third Respondent, the child via her Children's Guardian, did not appear and was not represented.
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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. This is the preliminary application to adduce fresh evidence in the form of a report from an American paediatrician called Dr Barnes and it is necessary to put the application in the context of the chronology. 

2. There have been public law proceedings in the Reading County Court relating to the first born child of the applicant, who was born on 15 March 2010 and who was in the care of the applicant and her partner for only about ten weeks before she was taken into care, an X ray examination revealing that she had suffered four fractures of differing ages within the first ten weeks of her life.

3. The proceedings in the court took a familiar path.  There was a fact finding hearing conducted by HHJ McIntyre on 28 October 2010.  He found that these injuries were non-accidental, that the parents were the only possible perpetrators and he dismissed their evidence of denial as being either untruthful or unreliable. There was no application for permission to appeal his findings and conclusions. 

4. Accordingly the case proceeded to a welfare disposal which had to be listed before a different judge for reasons that are irrelevant to this brief judgment and it was HHJ Elly who on 23 March 2011 granted the application of the local authority for care order, placement order and, I think, the termination of contact.  The local authority were fully supported in that by the little girl's guardian.

5. The story thereafter is from the child's point of view a classic one.  She has been placed with prospective adopters.  Their adoption application is proceeding in the same court before HHJ Elly and is only stayed pending the determination of applications listed before us today.

6. What emerged from the welfare hearing was an appellant's notice of 21 October seeking permission to appeal the order of 23 March 2011.  So we see at once that that application was very markedly out of time.  There was no application in relation to the judgment of HHJ McIntyre. 

7. That was the application of a litigant in person and it was eventually listed for a 30 minute oral hearing before a single judge.  The single judge in question was McFarlane LJ and he heard the application on 8 December.  The applicant mother appeared in person supported by her McKenzie Friend. 

8. McFarlane LJ was persuaded to adjourn the application for oral hearing on notice with appeal to follow if permission were granted and his view of the substance is reflected by his time estimate of one day. 

9. The order drawn on that occasion included specific directions, six in number.  Importantly the fourth direction was that the applicant file a short document explaining the reasons for delay in making the application.  The fifth directed that the appellant's notice be amended to include application for permission to appeal the order of HHJ McIntyre, and sixthly the local authority was to provide the applicant with a full copy of the bundle.  I emphasise those directions because they were very clearly directed to the preparation of this hearing listed for 19 January. 

10. The preparation passed from being that of an unrepresented litigant when the applicant approached a firm of solicitors Brendan Flemming, who she saw on 15 December.  They filed notice of acting on the 19th and sought and obtained emergency public funding. 

11. It seems that prior thereto, on 10 January, those solicitors had approached Dr Barnes in the United States, providing him with certain documents and asking him to report answering nine specific questions. 

12. What had happened behind the scenes was that the McKenzie Friend who had appeared on 8 December had expanded her role by obtaining employment with Brendan Flemming as a paralegal and it seems that she has thereafter had the professional conduct of the preparation of the applicant's case.  Full public funding was not obtained until 11 January. 

13. It was only this morning that the respondents received from the applicant a preliminary report from Dr Barnes.  They received it on arrival at the court at about 10.30 this morning.  We in the court received it only during the course of Ms Obi-Ezekpazu's opening of the applicant's case.  What we now determine is this application to admit fresh evidence which is firmly opposed by the respondents, that is to say, the local authority and the guardian. 

14. There are many reasons for refusing this application.  It does not begin to satisfy the conditions identified in the well known case of Ladd v Marshall.  It is a report which is deeply flawed in the manner of its production.  The respondents to these proceedings were given no notice of the intention to go elsewhere and to knock on another expert door.  No permission was sought from this court either to instruct another expert or to release documents from the case to that expert and such documents as were released were not comprehensive and were apparently partisan. 

15. I would have absolutely no hesitation in refusing this application but I do want to emphasise that there is in my judgment an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal. 

16. I would also emphasise the importance of the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, endorsed by the President and published by the Family Justice Council last month.  They must by extension apply to appellate proceedings, although the guidelines are of course written specifically in contemplation of proceedings at first instance. 

17. But where the applicant or appellant seeks not just to instruct a fresh expert but to instruct a fresh expert from some other jurisdiction, then regard should be had to the considerations that appear on page 6 of the guidance under paragraphs (a) to (c) inclusive; that is to say, the application to this court should state (a) why a UK based expert is not to be used, (b) what efforts have been made to identify a suitable UK expert and (c) the financial implications of the instruction of the overseas expert. 

18. Here the applicant had every opportunity to seek the permission of the court at the hearing before McFarlane LJ on 8 December.  If it be said that the idea of instructing another expert had not crossed the mind of the applicant or her McKenzie Friend at that date, it was always open to them to apply either through the Civil Appeals Office or direct to the clerk to McFarlane LJ for that permission subsequently.  It does seem to me that the unilateral action of involving a US expert without direct authorisation from the Legal Services Commission reveals a series of questionable decisions and actions for which the actors may be called to account on some future occasions.

19. For all those reasons I would refuse the application.

Lord Justice Rimer:
20. I agree

Lady Justice Smith:
21. I also agree

Order: Application refused