The Court of Appeal has ruled in favour of a mother who had been refused permission to seek three expert medical assessments of her disabled daughter.
In Re H-L, the 19 year-old mother had given birth to a child with a rare genetic disorder which resulted in malformation of her spine. She initially coped well with her daughter’s problems but care proceedings were launched when her nursery noticed bruising on the child which seemed to lack explanation. The girl, now two, now lives with foster carers.
The care proceedings came before a judge at Newcastle County Court in February. During the case the mother applied for permission to seek expert assessments of the girl’s bruising from a geneticist; a haematologist; and a paediatrician. Her application was refused on the grounds that there was no evidence to suggest bruising was a feature of her disability and the application did not, therefore, meet a key requirement of part 25 of the Family Procedure Rules 2010. This states that:
“The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.”
The mother appealed. In the Court of Appeal, Sir James Munby, who is President of the Family Division, discussed the meaning of the word ‘necessary’ in this context. He said it was an “ordinary English word” and endorsed the definition given in the earlier case of Re P:
“…a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”
Meanwhile, Lord Justice McFarlane declared that the unanimous decision of the court was to allow the mother’s appeal in the case of the geneticist. Instruction of the geneticist on a strictly limited basis would provide the court with expert insight into whether the girl’s condition could have resulted in the bruising, which was the central medical question.
The judge said:
“…it is plain to me that that instruction, on those terms, is proportionate to the need to provide some authoritative clarity from a witness who is in a position to give such answers and is therefore “necessary” in the manner that is described more fully in the President’s judgment.”
However, he added:
“So far as the instruction of a haematologist and a paediatrician are concerned, I do not consider that the appeal even begins to get off the ground.”