T (Fresh Evidence on Appeal)

Factual and Procedural Background

An application for permission to appeal was brought by a father against care and placement orders made concerning his daughter, hereafter referred to as the Child, aged 20 months. The father sought to rely on a recent diagnosis of autistic spectrum disorder (ASD), which had not been known at the time of the lower court hearing, alleging a serious procedural irregularity.

The Child's parents both had difficult personal backgrounds, including histories of alcohol abuse and prior care proceedings involving their older children, who were placed under special guardianship with their paternal grandmother. The father had additional children from other relationships, some also subject to care proceedings.

The local authority became involved during the mother's pregnancy in 2022. Initially, the parents did not wish to keep the Child, who was accommodated by the local authority under section 20 of the Children Act 1989. Subsequently, the parents requested to be assessed as carers, leading to residential assessments at two centres (the A Centre and the B Centre) over several months. Both assessments concluded that the parents, particularly the father, were unable to provide consistent, safe, and adequate care for the Child without full-time supervision.

Following these assessments, the Child was placed in foster care with the local authority seeking a placement order for adoption. The final hearing of the care and placement order applications occurred over four days in April 2024. The parents were separately represented; the mother supported the father's position but did not seek the Child's return. The local authority’s applications were supported by the children's guardian.

The lower court judge (the recorder) found the father to be an unsatisfactory and dishonest witness, concluding that only adoption would meet the Child's welfare needs. The father appealed, relying on a new diagnosis of ASD obtained after the hearing, arguing that the diagnosis raised issues of procedural unfairness due to the court's prior ignorance of this condition.

Legal Issues Presented

1. Whether the fresh evidence of the father's diagnosis of autistic spectrum disorder should be admitted on appeal under CPR 52.11(2) and the criteria established in Ladd v Marshall.
2. Whether the failure to know of the father's diagnosis at the time of the lower court proceedings amounted to a serious procedural irregularity rendering the care and placement orders unjust.
3. Whether the appeal should be granted permission based on the alleged procedural irregularity and fresh evidence.

Arguments of the Parties

Appellant's Arguments

• The fresh evidence report from a CBT psychotherapist diagnosing the father with ASD satisfies the test for admission of fresh evidence, including reasonable diligence, probable important influence on the outcome, and credibility.
• The diagnosis undermines the reliability of prior parenting assessments and professional interactions, as none were tailored to the father's neurodiversity.
• The court process was unfair and unjust as it did not consider the father's ASD, which could explain some parenting difficulties and affect the assessment of his evidence.
• The lifelong consequences of the placement order require the court to have all relevant information, including the diagnosis, before concluding that adoption is the only option.
• The diagnosis confers rights under the Equality Act 2010, which were not considered during the proceedings.

Respondents' Arguments

• The fresh evidence report should not be admitted as it is not reliable due to procedural deficiencies in its preparation and instruction.
• The report was obtained privately without court permission, lacking compliance with Family Procedure Rules Part 25 and associated Practice Directions.
• The expert was a psychotherapist, not a psychiatrist or psychologist, and the court and parties had no opportunity to scrutinise her credentials or instructions beforehand.
• The expert did not have access to the father's medical records or relevant information about the proceedings, relying heavily on the father's self-reporting, which is questionable given his history of dishonesty.
• The report would probably not have an important influence on the outcome, as the serious findings against the father are supported by extensive evidence unrelated to ASD.
• The father's diagnosis does not materially undermine the lower court’s findings regarding his dishonesty, relationship risks, alcohol misuse, and inconsistent parenting capacity.
• The fresh evidence could have been obtained with reasonable diligence, as the father was legally represented and a psychological assessment had been proposed previously but withdrawn.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admission of fresh evidence on appeal: (1) evidence could not have been obtained with reasonable diligence; (2) evidence would probably have important influence; (3) evidence is credible.	The court applied the criteria flexibly, emphasizing discretion under CPR 52.11(2)(b) and the overriding objective, but found the fresh evidence neither credible nor likely to have important influence.
Terluk v Berezovsky [2011] EWCA Civ 1534	Clarification that the admission of fresh evidence is discretionary and must align with overriding objective of justice; Ladd v Marshall criteria remain relevant but not absolute rules.	The court confirmed the discretionary nature of admitting fresh evidence and applied this principle in evaluating the father's report.
Mantovanelli v France (1997) 24 EHRR 370	Fairness in proceedings includes how evidence is obtained and considered; procedural irregularity can render decisions unjust.	Referenced to support the appellant’s argument on procedural fairness but court found no serious procedural irregularity affecting the outcome.
Re G (A Child) [2014] EWCA Civ 1365	More flexible approach to admission of fresh evidence in welfare jurisdiction involving children.	Court acknowledged need for flexibility but concluded fresh evidence was not sufficient to alter outcome.
Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447	Approach to admitting further evidence on appeal in children's cases involves proper flexibility, not laxity.	Guided the court’s balanced approach to fresh evidence in child welfare context.
Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8	Failure to identify cognitive difficulties or provide appropriate directions may amount to serious procedural irregularity.	Court found that despite potential vulnerability, the procedural irregularity did not render the decision unjust in this case.
A Local Authority v M, F, U and ABCDE (Children) [2020] EWFC B18	Assessments carried out without reference to ASD diagnosis cannot be relied upon for final decisions.	Appellant cited this case to argue for reassessment; court distinguished it on facts and found no comparable impact here.

Court's Reasoning and Analysis

The court began by outlining the legal framework governing admission of fresh evidence on appeal, notably CPR 52.11(2) and the three criteria from Ladd v Marshall, while emphasizing the discretion of the appellate court to admit evidence in light of the overriding objective of justice. It recognized a more flexible approach in welfare cases involving children.

The father's ASD diagnosis was assessed through a report by a CBT psychotherapist obtained privately without court permission or adherence to Family Procedure Rules governing expert evidence. The court identified multiple procedural and evidential deficiencies: lack of formal instruction, no court oversight, absence of access to medical records, and heavy reliance on the father's self-reporting despite his established dishonesty.

While acknowledging that the diagnosis might have some bearing on certain parenting risks, the court found that the most serious findings against the father—dishonesty, unhealthy parental relationship, alcohol misuse, and inability to provide consistent care—were supported by extensive evidence independent of the diagnosis.

The court also noted that the residential assessments, although unaware of the diagnosis, were structured around routines and support consistent with what might have been provided had the diagnosis been known. Furthermore, the father's evidence would have been subject to procedural protections had his vulnerability been identified earlier.

Ultimately, the court concluded that the fresh evidence was neither sufficiently credible nor likely to have an important influence on the outcome of the case. The alleged procedural irregularity did not render the decision unjust given the robust evidence supporting the lower court’s findings.

Holding and Implications

Permission to appeal is refused.

The court held that the application to admit fresh evidence of the father's ASD diagnosis failed because the evidence was not reliable and would not probably have had an important influence on the outcome. The alleged procedural irregularity did not render the care and placement orders unjust. The decision affirms the lower court’s findings and the making of the placement order for adoption. No new precedent was established; the ruling reinforces the strict application of procedural rules for fresh evidence and the requirement that such evidence must be credible and materially affect the case outcome, even in children’s welfare appeals.