T (Fresh Evidence on Appeal), Re [2024] EWCA Civ 1384

 

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.

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