FD24P00133 - [2025] EWHC 1292 (Fam)

On 29^th October 2024 I heard the case for a Pre-Trial Review. There were at that hearing difficulties in relation to provision by the relevant ICB of information and a dispute between the parents and the Trust over witnesses. It was possible to resolve the former at that hearing and ultimately, albeit with more court time at further hearings than I would expect, the latter. There were indications however at that hearing that all was not as it should be in relation to the medical records produced by the Trust and which had been the subject of a direction I made at a hearing on 12^th July 2024. Those who acted for the parents complained first that the copies which had been produced were of such poor quality that it was not possible to work with them and second that even on what had been produced it was evident that important material was missing and requests for that which was missing had not resulted in its production. A particular issue had been raised about minutes of Multi-Disciplinary Team (MDT) meetings - enquires made of the Trust had met the response that those meetings were not minuted in writing at all. At the time that had struck me as unlikely to be the case, but it later emerged that in this Trust, formal minutes of MDT discussions at which parents are not present are not kept. A discussion, described in the hearing by one witness as a ‘huddle’ would not be entered in the patient's medical records but might be saved on a hospital secure database. The material missing from disclosure was not said to be esoteric data or records of granular detail, or an aspect which Counsel wanted to ‘drill down’ further or ‘explore’, but the sort of primary source material core to assessment of burdens and benefits -such as interaction records. Neither was the material being asked for at the last minute. Sometimes that happens unavoidably in this sort of case but not here. It had been raised early on in the lifetime of proceedings.

On 14^th November it was necessary for me to have the matter back in for further case management on urgent application. This was 4 days –or 2 ‘working days’- before the scheduled starting date. Although it had been asserted by the Trust at the earlier hearing that there were no further records to come and Ms Scott had been instructed that all had been provided, shortly before coming into court more had been ‘discovered’. It emerged on enquiry that the additional material was in excess of 800 pages. I required a personal assurance from a named senior person in the legal department and a named senior person in the medical department of the Trust that this last tranche meant that all was now disclosed and there were no more records. It was plain that this volume of material being produced so late might jeopardise the start of the hearing.

The following day on 15^th November the matter returned for further case management in relation to witness difficulties. Whilst it seems to me that the difficulties in relation to witnesses within the last week could have been avoided had the matter been approached more constructively, that aspect is not the focus of this judgment. By that date however, yet more records had been found by the Trust and disclosed to the other parties. It may be that the more thorough search for them and their ultimate production was coincidental with the requirement that named senior people had been required to give the assurances I mention above, but that seems unlikely. The net effect of the position was that within the 7 days preceding the scheduled start date of the final hearing something approaching 3000 pages of material – much of it previously said not to exist and/or not to be available- had been produced by the Trust.

In the later statements filed on behalf of the Trust it has been pointed out that some of the material within the 3000 pages of late disclosure was not new and was duplication of that which appeared elsewhere in the records and disclosure. The difficulty however, looking at that material not through the lens of a later review, but from the perspective of a trial starting in 2 working days, is that absent proper indexing and cross referencing it is not possible to know that. It has been properly acknowledged also by the Trust that in this case, the way in which the records were filed within this Trust meant that they were, when disclosed, difficult to follow. It is important to remember that patients’ records are not made with court hearings in mind, and will not necessarily lend themselves to easy understanding by those who are lawyers rather than doctors. Late disclosure only serves to exacerbate that difficulty.

Counsel for the parents applied to vacate the listed hearing. In making her application Ms Cheetham KC placed reliance on the very significant difficulty she and her junior now faced. Time had been lost from the week set aside to prepare. It had had to be spent in collating, marshalling, identifying gaps in material, making fruitless requests for it and restoring the matter for the court to make directions to achieve that which should have been forthcoming without them. Even recognising that counsel instructed in this sort of case routinely work well in excess of what many professions would regard as a working day; and having made enquires of the court about a later start for the trial and extra time, Ms Cheetham’s misgivings about the task facing her in getting the matter trial ready were well founded. It was not surprising that she felt compelled to submit that she did not feel that she and her team could be sufficiently prepared in time for the start of the case.

In almost any other sort of case I would have acceded without hesitation to the application to vacate the hearing. I held in my mind the judgment of the Court of Appeal (albeit in a different sort of application) given by the President of the Family Division in Re R(Children) [2018] EWCA Civ 198. There, late disclosure of important documents, relevant in that case to a fact-finding hearing, meant that there was insufficient time fairly to prepare a for a hearing notwithstanding the fact that leading and junior counsel were instructed. The circumstances in which counsel in this case found themselves were easily comparable and far more difficult.

The gravity of the application made by the Trust here could hardly be overstated. The stakes do not get higher than this. Those high stakes however, by their very nature fell to be balanced in considering whether to accede to the application to vacate the hearing. As the evidence stood on the eve of the listed hearing there were 4 options open to the court – and therefore to the child – as possible outcomes at the conclusion of the hearing. Relisting this case at a later date in the new year, carried with it the risk that the number of realistic options might well reduce. A component in my thinking in determining the application to adjourn was the irony that whilst the parties who applied to adjourn were the parents, it would be the arguments advanced on their behalf which would be adversely affected if following an adjournment that were to be so. Whilst the application was not supported by those who acted for the child, no doubt similarly aware of the tension in relation to the advantages and disadvantages, who took a neutral stance, it is perhaps obvious that they would be having to form their own view of the burdens/benefits analysis for her under similarly pressured circumstances.

I refused the application to adjourn the hearing. In doing so I acknowledged that it was a decision which a) flew somewhat in the face of the approach taken in Re R (supra) as to preparation; b) did so unavoidably because of the fact-specific circumstances of the subject child in this case; c) placed a burden on counsel which only in the rarest of circumstances could be contemplated. To mitigate to the extent possible, the impact of refusing the application to adjourn the hearing, I delayed the start date by 2 further days.