Louise MacLynn KC and Edward Flood appeared for the local authority and mother respectively in the important decision in the Court of Appeal of Re T (Fresh Evidence on Appeal) (2014) EWCA Civ 1384 regarding the test for the admission of fresh evidence on appeal.  The court revisited the Ladd v Marshalltest through the lens of care proceedings. Of particular interest was the second limb that the evidence should “probably have had an important influence on the result of the case (though it need not be decisive)”, and the third limb that the evidence needs to be “apparently credible though not incontrovertible”.  

After care proceedings, in which the court at first instance had made Care and Placements Orders, the father obtained a report arranged privately, which concluded that he met the criteria for a diagnosis of autistic spectrum disorder (“ASD”) “with Level One need”. Such diagnosis had not been made during those or previous care proceedings. It was first raised in conversation by the mother’s intermediary during the final hearing. The father brought the appeal against the Care and Placement Orders, given this report.

The Court of Appeal doubted the reliability of the report itself, which therefore failed the “credible” requirement. Of greater importance in the case was, notwithstanding the construction of “probably” in the second limb being expressed by the Court of Appeal as “a real possibility”, the fresh evidence had also failed the criteria of probably having an important influence on the result of the case at first instance.