Summary

The father sought permission to rely on fresh evidence that he had a diagnosis of autism spectrum disorder in an appeal against care and placement orders made in respect of his daughter. The judge reviewed the law on admitting fresh evidence on appeal before applying it to the case.

Learning points

Learning points for experts:

• Ensure that you fully understand and comply with the procedural rules, practice directions and guidance relevant to the case you are acting in.

• Do not assume your instructing party will pick up any compliance errors you make. This is especially the case if you are acting for a litigant in person.

• If you are instructed to provide fresh evidence on appeal, be aware that your evidence will need to meet criteria 2 and 3 set out in Ladd v Marshall.

• Be aware that the Family Procedure Rules Committee is currently considering an amendment regulating experts appointed by the court in both public and private law children proceedings.

Learning points for instructing parties:

• The court will adopt a more flexible approach when considering applications to admit fresh evidence on appeals in children’s cases.

• Under CPR, the rules in Ladd v Marshall remain criteria which “effectively occupy the whole field of relevant considerations to which the court must have regard”.

• Explain clearly in your application why the fresh evidence would meet the criteria in Ladd v Marshall.

• Carefully consider the nature of the evidence before requesting permission to rely on psychological evidence from a practitioner who is not a psychiatrist nor a psychologist.

• Be aware that the Family Procedure Rules Committee is currently considering an amendment regulating experts appointed by the court in both public and private law children proceedings.

Specific learning points for litigants in person:

• It is important to obtain the permission of the court to rely on the expert evidence before obtaining the evidence, undergoing an assessment, etc.

• It is important to understand and comply with the applicable procedural rules, practice directions and guidance.

The case

The case concerned an application for permission to appeal by a father against care and placement orders made in respect of his daughter. The two proposed grounds for appeal were:

1. The judge had placed undue weight on the recommendations of the second residential assessment without considering what took place at the assessment centre, and

2. Since the hearing in the lower court, the father had received a diagnosis of autism spectrum disorder. As the lower court was unaware of the diagnosis, the orders were unjust because of a serious procedural irregularity.

The diagnosis of autism spectrum disorder

The father was assessed by Ms D, a CBT psychotherapist, who prepared a report on the assessment which was filed in support of the application for permission to appeal. Ms D was neither a psychiatrist nor a psychologist. She assessed the father to meet the criteria for a diagnosis of ASD with “Level One Needs”, indicating that he required “support, with a particular emphasis on various aspects of executive function”

The rules governing fresh evidence on appeal

Under CPR 52.11(2), “Unless it orders otherwise, the appeal court will not receive... (b) evidence which was not before the lower court."

Prior to the introduce of CPR, the requirements of fresh evidence on appeal were expressed in the form of three criteria identified by Denning LJ in Ladd v Marshall [1954] 1 WLR 1489:

(1)   the evidence could not with reasonable diligence have been obtained for use at the trial;

(2)   the evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive); and

(3)   the evidence is apparently credible though it need not be incontrovertible.

After CPR came into force, the courts found that the rules in Ladd v Marshall remained relevant as matters that must be considered in exercising the court’s discretion on admitting fresh evidence, rather than as rules. The criteria, Laws LJ stated in Terluk v Berezovsky, “effectively occupy the whole field of relevant considerations to which the court must have regard”.

The judge also noted that courts had held that in exercising a welfare jurisdiction, where the process is quasi-inquisitorial rather than adversarial, an appellate court may adopt a more flexible approach to the admission of fresh evidence.

The judge’s view on Ms D’s report

Criteria 3: The reliability of the evidence

The judge found several reasons for doubting the reliability of Ms D’s report:

1. It was not obtained in compliance with the procedures in Part 25 of the Family Procedure Rules 2010 and Practice Directions 25B and 25C and did not include:

   1. the statement required by FPR 25.14(2) that the expert has understood and complied with their duty to the court,

   2. the further statement required by paragraph 9.1(i) of Practice Direction 25B, or

   3. the statement of truth required by paragraph 9.1(j) of that Practice Direction.

2. Neither the court nor the other parties had an opportunity to scrutinise Ms D’s credentials prior to the assessment to evaluate whether she was the appropriate professional to make the assessment, because the report was obtained without the court’s prior permission, as required by paragraph 5.1 of Practice Direction 25B.

3. Because the report was obtained without the court’s prior permission, neither the court nor the other parties had had an opportunity to consider or endorse the terms of Ms D’s instructions, as required by FPR 25.7 and paragraph 4.1 of Practice Direction 25C.

4. There is nothing in Ms D’s report to indicate that she had access to the father’s medical records.

5. Any information about the context of Ms D’s instruction came from the father himself. Any court asked to authorise a psychological assessment of the father under Part 25 would have ensured that the expert had access to relevant information about the proceedings and the issues in the case so that the report could be tailored for the court’s purposes. 

Criteria 2: The probable influence on the result of the case

However, the judge noted that of greater importance in this case was the second criterion in Ladd v Marshall which requires that the evidence must be such that it would have probably had an important influence on the result of the case. “Probable” in this case should not be equated with the “balance of probabilities” (as Denning LJ’s words are not statute), but “whether there is a real possibility that, if admitted, Ms D’s report would have an important influence on the outcome of the proceedings.” This approach would be consistent with the element of flexibility required in children’s appeals.

The judge found that the lower court had “made a number of significant findings based on evidence which are not materially compromised by the fact that the court was unaware of the possible diagnosis.” This included:

• Extensive evidence to support the finding that the father had told lies about important aspects of his life,

• Clear evidence to support the findings that the father and mother’s relationship posed a risk to the child, that there was a lack of emotional warmth between them, and that the father was domineering and manipulative towards the mother,

• The finding about the father’s misuse of alcohol,

• Evidence that the father had failed to show consistently that he had the ability to prioritise the child’s welfare.

Therefore, the judge found that, while the ASD diagnosis may have some bearing on the risk identified, the majority and the most serious identified risks were not linked to autistic spectrum disorder.

The judge’s decision

The judge concluded that the Criteria 2 and 3 in Ladd v Marshall were plainly not satisfied. Despite the more flexible approach to be adopted when considering applications to admit fresh evidence on appeals in children’s cases, the judge concluded that, where the appellant had failed to establish either that the evidence is credible or that it would have an important influence on the result of the case, the report should not be admitted for the purposes of the appeal.