Factual and Procedural Background
The case concerns an infant child, H, who was placed for adoption in September 2013. H's mother sought leave to appeal out of time against care and placement orders made on 12 December 2012 by HHJ Lochrane. The mother’s application depended on the court admitting fresh evidence, namely a report by Dr Squier dated 8 April 2014, which she argued undermined the findings of non-accidental injury to H that formed the basis of the original orders.
The father supported the mother's application. The local authority opposed the application on the merits and challenged the procedural method by which the fresh evidence was obtained, questioning the jurisdiction of the first instance judge (not the original fact-finding judge) to permit the instruction of an expert on matters previously determined. H’s Children’s Guardian took a neutral stance.
H was initially presented at hospital at less than one month old with signs of injury including ischaemic brain injury, subdural haemorrhage, and retinal haemorrhages. Medical experts at the fact-finding hearing concluded that H had probably sustained non-accidental injuries, and adverse findings were made against both parents as possible perpetrators. Subsequently, H’s prospective adopters filed an adoption application in December 2013, which the parents opposed in early 2014.
Directions were given for the parents to file statements on any change of circumstances justifying opposition to the adoption. The mother’s statement raised a possible link between her streptococcal infection at the time of birth and H’s brain injury, prompting the court to allow the instruction of an expert to review the evidence in light of this new information. The mother then applied to this court for permission to appeal and to adduce new evidence.
The single judge initially adjourned the application for permission to appeal and identified two procedural issues for full court consideration but did not grant permission to appeal, finding no compelling reason at that stage. The court then considered the merits of admitting the fresh evidence, reading the report without prejudice to its admissibility.
Legal Issues Presented
- Whether the court should admit fresh evidence in the form of the expert report by Dr Squier challenging the original findings of non-accidental injury.
- Whether a first instance judge has jurisdiction to permit the instruction of an expert on matters previously determined to support an application to oppose an adoption order under the Adoption and Children Act 2002, section 47(5).
- Whether it is possible to re-open factual issues after a sealed final order has been made.
Arguments of the Parties
Appellant's Arguments
- The fresh evidence could not have been obtained with reasonable diligence during the original proceedings because the mother was unlikely to have been permitted to instruct another expert against unanimous prior expert opinion.
- The mother only learned after the proceedings that her streptococcal infection might have affected H during birth, potentially explaining his injuries.
- The new expert report raised significant issues with the prior medical opinions that were beyond the mother’s own expertise.
Respondent's Arguments (Local Authority)
- The local authority opposed the admission of the fresh evidence on its merits.
- They criticised the procedural route taken to obtain the expert report and challenged the jurisdiction of the first instance judge to permit such expert evidence on previously determined issues.
- They argued that the fresh evidence lacked substance and was based on misinterpretations of scientific literature.
Children’s Guardian's Position
- The Children’s Guardian took a neutral stance regarding the application.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ladd v Marshall [1954] 1 WLR 1489 |
Criteria for admitting fresh evidence on appeal. |
The court applied the well-established criteria from Ladd v Marshall to assess whether the fresh evidence should be admitted, emphasizing the importance of finality and the need for credible, relevant evidence. |
| Webster v Norfolk County Council [2009] EWCA Civ 59 |
Consideration that rules on fresh evidence may be less strictly applied in children's cases. |
The court considered but ultimately doubted that this obiter dicta should lead to less rigorous scrutiny of fresh evidence in children’s cases, emphasizing the importance of finality in decisions affecting children. |
| A Local Authority v S [2009] EWHC 2115 (Fam) |
Criticism of expert witness objectivity. |
The court acknowledged the criticism of Dr Squier’s objectivity in this case but did not consider it sufficient to dismiss her evidence outright, proceeding on the basis that her report was credible for the purpose of the application. |
| Re L and B (Children) [2013] UKSC 8 |
Jurisdiction to re-open factual findings after a sealed final order. |
The court relied on Lady Hale’s judgment to conclude that once a final order is sealed, factual findings cannot be re-opened at first instance, and challenges must be made in the appellate court. |
Court's Reasoning and Analysis
The court carefully examined the fresh evidence submitted by Dr Squier, dividing it into two parts: the possible consequences of the mother’s streptococcal infection and alternative explanations for H’s injuries.
Regarding the infection, the court found that Dr Squier had no relevant expertise and offered only a vague observation that infection is a risk factor for venous thrombosis, which would not have influenced the original fact-finding. The court also noted that the mother’s infection was known at the time of the original proceedings and that no scientific advances had occurred since then.
On the alternative explanations, the court found that all reasonable medical avenues had been explored at first instance, including infection and birth injury, and that the diagnoses made were not controversial among experts. The court was persuaded by the local authority’s detailed forensic rebuttal that Dr Squier had misinterpreted some research papers and that her alternative pathology was based on insecure scientific grounds.
The court also addressed procedural questions concerning jurisdiction to admit fresh expert evidence after a sealed final order. Relying on Re L and B, it held that no jurisdiction exists to re-open factual issues or to permit expert evidence on previously determined matters at first instance once a final order is sealed. The court concluded that the fresh evidence did not demonstrate a change of circumstances relevant to the child's welfare assessment under the Adoption and Children Act 2002, section 47(5).
Finally, the court considered the pending Fitness to Practise proceedings against Dr Squier but decided to disregard these allegations for present purposes, treating her report as credible despite the unresolved allegations.
Holding and Implications
The court refused the application to admit fresh evidence and consequently refused permission to appeal.
The court held that there was no realistic prospect of success on appeal and no other compelling reason to hear the appeal. The refusal effectively upheld the original care and placement orders. The court did not set any new precedent but clarified that challenges to sealed final orders must be pursued on appeal rather than by re-opening factual issues at first instance, and that fresh expert evidence must meet strict criteria of necessity and relevance to be admitted.