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The Court of Appeal [2008] EWCA Civ 462

The linked judgment is the one in which I was criticised by the Court of Appeal for two points.

Bias and Apparent Bias
Firstly I provided the court with evidence that local authorities and Nottingham in particular had been in receipt of hypothecated funding ringfenced towards adoption. This practise ceased from 1st April 2008.

The second leg of Natural Justice requires Nemo Judex in Causa Sua. The decisions of the local authority in terms of both whether to initiate care proceedings and assessment fall foul of the need for the local authority to make those decisions in an unbiased manner. It is clear that both the existence of the BV163 adoption targets and the hypothecated funding (both scrapped from 1st April 2008) created an apparent bias on the local authority. Magill v Porter [2001] UKHL 67 [2002] 2 ACT 357 at [103] (Lord Hope: “The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”) The decisions of the local authority would have been potentially subject to judicial view. Similarly, the expert in acting as the agent of the local authority is subject to the same apparent bias. This could be merely a bias in terms of the selection of the expert rather than necessarily a bias in terms of the actions of the expert herself.

The danger, therefore, with the single expert system is that an apparent bias exists in terms of the selection of the expert whose evidence is then not contested as has happened in this case.

I did give reference to the legal precedents relating to bias when listening to opinion.

File Tampering
I pointed out to the court that certain documents were unusual. One document was sent by the Official Solicitor to the mother's solicitor. This document had an unusual address format and also did not have a "received" stamp from the solicitors office in which it would have been received.

A second document was a note in a completely different format to other notes. It indicated that the first document had been posted to the mother with a compliments slip. The use of a compliments slip was an unusual instance. The date on this note was clearly wrong as it was the same day as the first document had been posted when the first document would not have been received.

In the 1980s I was involved in a number of legal cases as an expert witness looking for fraud. I took the view that the above indicated that the file had been tampered with. Indeed it was recognised that retrospective changes had been made to the file, but I am not going to contest the argument that they were not fabricated.

The Key Point
The key issue, however, is not whether or not the file had been tampered with, but that the mother had never been given an opportunity to put her side of the argument.

Human beings should have some rights. However, the one of the most fundamental has to be to have the opportunity to be heard in legal proceedings.

The Court of Appeal have determined that the fact that the mother was never given an opportunity to challenge the assertions of the local authority and its experts is acceptable.

This is a far more important issue than whether or not my contested assertions are true or not.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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