E (A Child) (Care and Placement Orders)
[2023] EWCA Civ 721
T (Fresh Evidence on Appeal), Re
12 November 2024
[2024] EWCA Civ 1384
Court of Appeal
A dad appealed a court order taking his daughter away, saying he's autistic and that the court didn't know this. The higher court said the new information wasn't reliable because it wasn't obtained properly, and even if it was, there was already enough evidence showing the dad wasn't a safe parent, so the original court decision was correct.
Key Facts
- •Father appeals care and placement orders for his 20-month-old daughter, T.
- •Appeal based on post-hearing diagnosis of autistic spectrum disorder (ASD).
- •Father's history includes alcohol abuse, criminal convictions, and negative assessments in previous care proceedings involving other children.
- •Two residential assessments recommended against T remaining in parental care due to inconsistencies in care, lack of emotional warmth, and parental relationship issues.
- •Father's post-hearing ASD diagnosis was made by a privately-instructed CBT psychotherapist, without following court-mandated expert procedures.
- •The recorder found the father to be dishonest and unreliable, his parenting inconsistent and unsafe without 24/7 supervision.
Legal Principles
Admission of fresh evidence on appeal.
CPR 52.11(2), Ladd v Marshall [1954] 1 WLR 1489, Terluk v Berezovsky [2011] EWCA Civ 1534, Re G (A Child) [2014] EWCA Civ 1365, Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447
Ladd v Marshall criteria (though not primary rules, they are highly persuasive): (1) evidence could not have been obtained with reasonable diligence at trial; (2) evidence would probably have had an important influence on the result; (3) evidence is apparently credible.
Ladd v Marshall [1954] 1 WLR 1489
More flexible approach to fresh evidence in children's welfare cases, balancing finality with child's best interests.
Re G (A Child) [2014] EWCA Civ 1365, Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447
Failure to identify cognitive difficulties before a parenting assessment or to make appropriate directions to facilitate the giving of evidence may amount to a serious procedural irregularity.
Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8
Family Procedure Rules 2010 and Practice Directions 25B and 25C governing instruction of experts in family proceedings.
FPR Part 25, Practice Directions 25B and 25C
Outcomes
Permission to appeal refused.
Fresh evidence (ASD diagnosis) deemed unreliable due to procedural deficiencies in obtaining it and unlikely to significantly alter the outcome given the substantial existing evidence supporting the lower court's decision. The recorder's findings were based on multiple sources, not just the assessments and were not undermined by the father's potential ASD.