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Family Law

The leading authority on all aspects of family law

24 MAY 2006

CARE PROCEEDINGS: Re S (Children) [2006] EWCA Civ 981

(Court of Appeal; Wilson and Moses LJJ and Hedley J; 24 May 2006) [2006] FLR (forthcoming)

The local authority brought care proceedings, alleging that the child had suffered non-accidental injury, possibly by violent shaking. The parents described a specific impact injury which, they argued, explained the child's serious brain injuries and might have contributed in some way to the other internal injuries. The judge refused to allow the parents unilaterally to instruct four experts, preferring the instruction of joint experts. The judge refused the local authority's application for disclosure of the father's medical records, but directed the father to file a report from the psychiatrist treating the father.

The parents' case for separate instruction of experts was based on a misconstruction of the scope of W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543. Oldham concerned a joint expert report adverse to the parents on an issue of pivotal importance, and the need for a second opinion in those circumstances. That decision did not mean that at the outset of a court's arrangements for the assembly of expert evidence the court should favour the instruction of two or more experts in the same discipline additional to such experts already destined to give evidence because of their clinical involvement in the child's case. Justification even for a second opinion lay only in circumstances in which the first opinion was pivotal. If the opinions of the joint experts were not accepted, instruction of a second opinion might be needed, and might introduce a delay, but that possible delay could not justify premature collection of expert evidence. The father's psychiatric condition and the treatment he was receiving were relevant, not to mere propensity, but to the factual issues. There was an unanswerable case for disclosure of the father's psychiatric records and linked records held by his GP.

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