England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HER HONOUR JUDGE MCKINNEY)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st February 2001

1. LORD JUSTICE THORPE: Miss Poyer-Sleeman appears this morning to advocate an application for permission lodged by Mr Jonathon Swift earlier this month. The application came to me on paper and in view of the need for early resolution because of the pending proceedings in the court of trial and because of the likelihood that a paper refusal would lead to a request for oral hearing, I directed on 14th February that the application should be listed for oral hearing without notice, and that has been done today.
2. There are pending public law proceedings in the Bournemouth County Court between Hampshire County Council and Mr and Mrs M. Mr and Mrs M have the advantage of representation by Mr Jonathon Swift who has appeared on a number of directions appointments. The current application arises out of the fact that Mr M was involved in largely wardship proceedings in respect of an older child of his named L. The proceedings were terminated many years ago.
3. Equally, the mother Mrs M has been involved in care proceedings in relation to an elder child of hers, A, and those proceedings too were concluded some years ago. Not surprisingly, the local authority wished to introduce into the current case to decide the future of the three children of the parents aged respectively seven, four and three, material derived from the case papers in the earlier litigation to settle the future of both L and A.
4. The issue was the subject of an order made on 7th December by Her Honour Judge McKinney who has control of this case. Her order of the 7th was that papers in relation to A should be disclosed to all parties but not to the Court and that the issue of the introduction of material in relation to A and L should be considered on 26th January. At that hearing, the judge made an order that the local authority had leave to file any documents upon which it wishes to rely derived from the proceedings relating either to L or A.
5. Mr Swift says that the judge should not have done that. He has filed a skeleton argument in which he asserts that this is a great issue of principle and that the judge was quite wrong not only to allow this material into the case but also particularly to allow it to go to the experts who, he said, are unqualified to protect themselves against prejudice which might derive from treating allegations in earlier proceedings as though they were findings of fact.
6. I have recently received a reassuring skeleton argument from Miss Pine-Coffin who appears for the local authority. She makes it absolutely plain that the local authority are not being selective and have disclosed and filed all relevant documents relating to the earlier born children.
7. I also have the advantage of a transcript of the judgment given by Her Honour Judge McKinney on this short point. In my opinion she dealt with the issue very sensibly. She posed the question thus, and I quote from page 4, of her judgment:

"If the evidence is admissible, is it right to leave it out entirely when it clearly has a bearing in relation to the welfare and future of the children under consideration?"

8. Before posing the question she had noted the need for caution. At page 3 she said:

"None of us... would dispute the importance of very careful consideration as to the objectives with which such evidence... would be brought into the present proceedings and how which should in fact be handled."

9. In relation to Mr Swift's submission that everything should be left over to the trial she said very sensibly, in my opinion:

"So far as the experts themselves are concerned in my view it would be quite wrong for evidence which is known about not to be put before the experts at this stage otherwise one is not unaccustomed to finding experts being cross-examined... about matters of which they have had no real knowledge, and are asked while in the witness box to draw their conclusion as to the weight that they would want to attach to evidence in earlier proceedings.

I feel that is as a general rule not helpful, either to the experts, or to the court. My view is that any evidence that is available, relevant, and admissible should be placed before the experts prior to the hearing and there will be no doubt in this case considerable cross-examination of the experts which would readily disclose if the expert had perhaps attached more weight than is appropriate."

10. Finally, the judge said, with eloquence:

"It does not make it any easier of course if the matters in the past are brought into the picture, but we do not look for ease in arriving at conclusions. I think the court has an important part to play in issues of this sort."

11. I agree with every word that I have cited from the judgment of Her Honour Judge McKinney. I see nothing of principle revealed by this application. I see no suggestion of error on the part of a very experienced judge who was carrying out a discretionary function in managing the final stages of preparation of a public law hearing.
12. The application is in my view without any foundation or merit, and I only express my gratitude to Ms Patricia Poyer-Sleeman who has conducted the proceedings this morning with discretion. The application is refused.
(Application refused; legal aid assessment)