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Date:18 JUN 2013
Law Reporter

(Court of Appeal, Sir James Munby P, McFarlane, Treacy LJJ, 13 June 2013)

The 2-year-old child was born with rare genetic disorder, spondylocostal dysostosis, which was a condition affecting the development of the bones of the back and ribs, resulting in the vertebrae being misshapen and fused. In consequence she had a short neck, with marked indrawing of the chest which in turn caused significant respiratory problems with intercurrent infections and a possible reduction in the efficiency of her immune system. Her 19-year-old mother was separated from the father and had initially coped well with caring for her daughter and co-operated with professionals.

Care proceedings were initiated after the nursery raised concerns that the child had sustained a number of bruises. The nature and range of bruising and the absence of any explanation for it led to a working diagnosis of non-accidental injury. She had since remained in foster care.

During proceedings the mother sought permission to instruct three experts: a geneticist; a haematologist; and, a paediatrician. At an issues resolution hearing the only evidence filed was that from treating clinicians who had had direct contact with the child and no outside expert had been formally instructed.

The mother was refused permission on the basis that, inter alia, unusual bruising had not been noted on the child previously and there was no evidence to suggest that spontaneous or easy bruising was a feature of her condition. The judge concluded that the factual parameters of the case did not reach the test of necessity of FPR 25.1. The mother appealed.

The President explained that the meaning of the word necessary was as described in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, 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'.

Sir James Munby, the President of the Family Division, took the opportunity to reiterate the principle that appellate courts would be slow to interfere with case management decisions and commented that cases where that course would be necessary would be rare.

As a matter of procedure when disclosure of medical records was being sought from a third party, an appropriate order of the court directed to the third party should be obtained at the earliest opportunity, rather than one of the parties being left to seek voluntary disclosure. In addition more thought needed to be given to an appropriately focused application for disclosure, identifying the particular class or classes of documents whose disclosure was really needed.

Finally there was an imperative need for everyone, the Court of Appeal included, to deal with appeals from interlocutory case management decisions in family cases with the utmost despatch.

The appeal was allowed on a limited basis insofar as it related to the instruction of the geneticist. Prior to the hearing a precise diagnosis of the child's condition was offered and the geneticist was instructed on a restricted basis, limited to a targeted paper exercise. The appeal relating to the instruction of the haematologist and paediatrician was dismissed.

The central, if not only significant, medical issue was whether the child was more prone to manifest bruising than other children due to her condition. An instruction of the geneticist on the limited terms was proportionate to the need to provide some authoritative clarity and necessary within the meaning of FPR 25.1. The necessity of the other two experts was not established on the facts of the case.