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Reported Case

R v Local Authority and Others [2011} EWCA Civ 1451 (6 December 2011)

Date: 06/12/2011
Duncan Lewis, Reported Case Solicitors, R v Local Authority and Others [2011} EWCA Civ 1451

In relation to a child, subject to care proceedings, a Supervision Order was granted to the local authority and a Residence Order to the mother. The father had sought unsupervised contact. A risk assessment concluded that he remained a risk to children and should only have supervised contact with the child. The father sought a second expert’s opinion. His application was refused and he was granted supervised contact. He unsuccessfully appealed the decision to refuse his application for a second expert’s opinion in the Family Proceedings Court and again from the Family Proceedings Court to HHJ Hughes QC. He therefore appealed to the Court of Appeal.

The basis of the appeal was that the trial judge and the first appeal court should have allowed the application for a second expert and failure to do so amounted to an error of law; invalidated the exercise of judicial discretion and thereby limited the father’s contact to take place on a supervised basis only. S.55 (1) of the Access to Justice Act 1999 was satisfied by virtue of the fact that the appeal raised questions of, the correct approach to be taken by the court on an application for a second expert’s report on what is asserted to be a key issue in the case; the time at which an application for a second expert is considered; the approach in considering the application and the distinction between the way the issue is determined by the civil and family courts.

Appeal dismissed. Held: that it was apparent that the judge at first instance had made findings of fact based upon the evidence before the court; that the trial judge at first instance had appropriately exercised his discretion and that judges in family proceedings decide each application for a second opinion on the merits by reference to the Overriding Objective, the Practice Direction and the Family Proceedings Rules 2010. In each case it is a matter of judgment, and the crucial question remains for the judge to consider, “do I need this report in order to enable me to deal justly with the case? What will the additional expert add to the case?


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