There is a difficult public law case proceeding in the Principal Registry to settle the future of C born on 17 September 2006; it is unnecessary for the purposes of this brief judgment to record any of the history or the detail. It is sufficient to say that an application on the mother’s behalf for a viability assessment by the Cassell Hospital was put before HHJ Hayward Smith, sitting in this building on 10 January. He considered the application carefully and quite rightly deferred a decision until medical reports which were expected had been filed for his guidance. He delivered a short judgment explaining his management decision. The medical reports came in and he resumed consideration of the application on 23 January. He delivered a supplemental judgment explaining his reasons for refusing the application. Ms Hoyal, who has represented the mother throughout, filed an appellant’s notice in this court on 26 February, although I think grounds had been settled considerably earlier as had the skeleton in support. The papers were put before Wall LJ, who on 16 March ordered the applications to be listed on notice, with appeal to follow if permission granted. The applications are actually three in number: permission, extension of time and fresh evidence. It is the last of those three applications which is crucial, since the mother’s litigation team seek to put in a supplemental opinion from Dr Smith, the psychiatrist whose report was highly influential in the decision given by HHJ Hayward Smith on 23 January.

The fresh evidence has had a considerable influence on the stance taken by the guardian. Before the judge the guardian’s position was essentially one of neutrality. But having seen the fresh evidence, Mr Brian Jubb has filed a carefully reasoned skeleton in which he explains why it is that in the light of the fresh evidence the guardian supports the appeal to the extent that there should be a viability assessment at the Cassell Hospital. The guardian’s submission is measured and balanced in expressing support for the appeal. She acknowledges the doubts expressed by many as to the mother’s long term prospects and she expresses concern about the outcome of the viability assessment and where that may lead.

Miss Hoyal is also supported by Miss Gilling for the father and so we have called on Mr Vavekca for the local authority, whose voice is the only voice raised in opposition to the grant of the three applications. Mr Vavecka has faced the challenge with conspicuous resolution and skill. He has sought to divert the court from a course that it was clearly minded to take. Nobody could have faced that difficult task with greater skills in advocacy. Nobody could have done a better job for the London Borough of Southwark in seeking to hold the order below. However everything turns on the additional evidence. Dr Smith had written an impressive and detailed medical report on the mother, who was not a patient. She was carrying out a forensic assessment and her report, which runs from page E99 in our bundle through to E134, covers all the issues in the case.

It has never been in doubt that the mother suffers from bipolar disorder. Dr Smith is very clear that she also suffers from post-traumatic stress disorder as the result of her life experience. What is less clear is whether she suffers from a core personality disorder. That was the view of the CPN at a time when she was given the benefit of a residential assessment by One Step. It is in the view of Dr Smith, as recently expressed, more than possible that that was an erroneous assessment that led One Step to an inappropriate reaction to the mother’s self-assessment of the need for medical review during the course of the residential assessment. Even more significant is the distinct possibility that during the course of the residential assessment the drugs prescribed for the mother were not the drugs most likely to secure her emotional stability. Early in January she was prescribed lithium in substitution for the olanzepine that she had been receiving and that seems to have had a very beneficial effect. So it was in those circumstances that the mother’s solicitors approached Dr Smith, relaying to her, in terms that Mr Vavekca understandably criticises, their view of the judgment of 23 January and seeking her opinion. Her opinion is contained in an attendance note, but we can see from e-mail communications in mid-February that the attendance note was submitted to Dr Smith and given her amendment and approval. The two concluding paragraphs of the attendance note are extremely important. The note as approved by Dr Smith reads:

The only other word is of an informal meeting between Dr Smith and Dr Frangou, seemingly on 16 February, when Dr Frangou opined that mother was a lithium responder, that she responded to the medication within a very short time and that the medication is likely to keep her stable.

In my judgment this fresh evidence is of great significance. The judgment taken by HHJ Hayward Smith was careful and balanced and had the application for permission rested on an analytical attack on his judgment, I have no doubt that it would have failed. I would grant the three applications sought and grant the consequential appeal and order the viability assessment at the Cassell solely on the ground of the fresh evidence available to us and not available to HHJ Hayward Smith.

I only add that we do no more than sanction a viability assessment and even if the Cassell are not able to accommodate this case until the end of April, it is still well within the time frame set for the final hearing of the local authority’s application.

I agree with my Lord, Lord Justice Thorpe’s decision and in its entirety with his reasoning and have nothing to add.