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Category Archives: experts

Obtaining a fresh assessment late in proceedings

Re Z (A Child : Independent Social Work Assessment) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/729.html

My compliments to the Judge for giving this a meaningful case name that allows people to find it in the future.

This one was a judgment given in March 2014, for care proceedings arising out of injuries to a child that occurred in September and October 2012. The proceedings were into week 72.  The father applied for a fresh independent social work assessment, and also sought a fresh assessment of the paternal grandmother, challenging the negative viability.

If you are at the moment, thinking, meh, I know how this one ends up – I’ll give you a spoiler.  He gets the assessments.

Ah, now you want to know more…

    1. In any case in which a local authority applies to the court for a care order, the assessment of a parent is of critical importance. That assessment will be a key piece of the evidential jigsaw which informs the local authority’s decision-making, in particular with respect to the formulation of its final care plan. If the assessment is deficient then that is likely to undermine the reliability of the decision-making process. It follows, therefore, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough.

 

    1. Was RD’s assessment of the father fair, robust and thorough? In my judgment it was not. In arriving at that conclusion I bear the following factors in mind. They are not ranked in any particular order:

 

(1) The assessment undertaken by RD was a social work assessment and not a parenting assessment. No parenting assessment of the father has been undertaken. His ability to acquire the skills needed to enable him to care for Z have not been assessed.

(2) To the extent that RD’s observation of contact and reading the contact supervisor’s notes have informed her assessment, the clear evidence is that that contact was positive and that the father was able to learn and apply new skills. He was cooperative and teachable. Despite this the local authority declined either to increase the level of contact or provide him with any form of training to enable him to meet Z’s care needs (unlike the foster carer for whom training has been provided).

(3) Not only has the local authority failed to undertake a parenting assessment it has also failed to give any consideration to the support the father would need in order to care for Z or what support and assistance the local authority is able to offer.

(4) The father is criticised for lack of understanding and insight yet his knowledge of Z’s injuries and prognosis comes not from copies of the relevant reports translated into Punjabi but from having some of those reports – or more likely some parts of those reports – read to him in Punjabi. To this must be added the local authority’s failure to give the father opportunity to meet with any of the health care professionals responsible for Z’s care.

(5) The local authority’s social work assessment proceeded on the assumption that the father wished to return to India and care for Z there. Whilst I acknowledge that some of the things the father said may reasonably have led the local authority to that belief, I am equally satisfied that that is not his position. This is not the only issue in this case in which something has been lost in translation.

(6) The local authority appears to have assumed that a care plan for adoption automatically means that post-adoption contact should be limited to letter-box contact only. It has not given any consideration either to the benefits for Z of contact continuing or, as part of its assessment of the father, what the father has to offer to Z through ongoing direct contact. Whereas the guardian has begun to reconsider her position on contact there is no evidence that the local authority has begun to do so.

  1. I am satisfied that the local authority’s assessment of this father falls short of the standard required.

 

Fair, robust and thorough seems like a good test in appraising the evidence – I expect to see others make use of this test   (whether this authority is binding or not is tricky – but it is a High Court case, so it is at least persuasive)

 

One major part of father’s case was this :-

 

108. As a result of the negative outcome of the social work assessment, on 31st January 2014 the father issued an application for permission to instruct an independent social worker to undertake a parenting assessment. The father complains that the social worker ‘failed to approach the assessment with an open mind’ for which submission he relies on the fact that the social worker informed the LAC review on 12th December 2013 that the outcome of her assessment was negative even though the assessment was still ongoing.

 

If father was able to establish that, which one would hope would be confirmed or refuted by the LAC review minutes, that is fatal to the LA’s opposition to an independent assessment. This is not announcing the outcome when all that is left is to finish dotting the i’s and crossing the t’s in the written report , this was a final view of the outcome of the assessment given whilst it still had six weeks to run.

 

Unhelpfully

    1. The minutes of the LAC review held on 12th December note that,

 

‘Social Worker RD is carrying out 6 assessment sessions with [the father] 5 have been completed. The assessment is negative. He denies any knowledge of the injuries or reasons she was harmed, he has very limited understanding of her health and overall prognosis. He does not understand the impact of the brain damage. He has no clear plan – originally he said his mother would help out in India, then his sister. It is assessed he is not considering Z’s best interests. All professionals shared these concerns. Becky will inform [the father] of the outcome of the assessment and will file the statement by 8.1.14.’

    1. Although the father attended the LAC review he was not permitted to be present throughout the whole of the discussions. He was not present when RD told the meeting that her assessment of him was negative. He was not present when the decision was taken that the local authority’s plan for Z should be one of adoption.

 

    1. The minutes of the LAC review have little to say about contact: ‘Supervised contact takes place twice a week during the assessment period. Z has been fine before and after contact’. If that is an accurate reflection of the information given to the members of the LAC review then it is woefully lacking. The social worker said that she ‘was not asked’ to provide the Review with evidence relating to contact. Given that contact was extremely positive for Z one would have expected the LAC review to have been informed of this and that it would have considered how contact might develop. This is a requirement of the Care Planning Placement and Case Review (England) Regulations 2010 ['the Regulations']. Schedule 7 sets out the considerations to which the responsible authority must have regard when reviewing a child’s case. Schedule 7 paragraph 4 requires the LAC review to consider

 

‘The arrangements for contact and whether there is any need for changes to the arrangements in order to promote contact between [the child and her parents].’

  1. The social worker was asked whether the minutes of the LAC review provided an accurate summary of what was discussed. She confirmed that they do, though she went on to describe them as ‘brief’. The minutes have been signed by the Independent Reviewing Officer. There is space for them to be counter-signed by the social worker. In this case the social worker confirmed that the minutes had been sent to her for approval and signing. She had not responded. She has not signed them. She said that she does not routinely sign minutes of LAC meetings.

The Judge’s comments on LAC reviews, that arise from those failings, are also ones that I expect to see crop up in other cases

    1. LAC meetings are very important meetings. That that is so is made very clear by the Regulations. The records of such meetings are also important. Regulation 38 provides that,

 

“The responsible authority must ensure that a written record of the review is prepared, and that the information obtained in the course of the review, details of proceedings at the review meeting, and any decision made in the course of, or as a result, of the review are included in C’s case records.”

  1. It should be apparent from the minutes of a LAC meeting that the meeting has considered each of the matters which the Regulations require the meeting to consider. The minutes should be balanced. So far as the parents’ relationship with the child is concerned, they should identify any positive points as well as any negative points. Although there is no requirement in the regulations for minutes to be signed, as a matter of good practice it is clearly appropriate that they should be signed. They should be signed by the Independent Reviewing Officer and by the allocated social worker, if present at the meeting, and if not present then by the most senior social worker present at the meeting. Their signatures provide the assurance that the minutes give an accurate and balanced account of the matters discussed at the meeting.

 

Assessment of paternal grandmother next

    1. That leads me back, finally, to what the local authority describes as a viability assessment of PGM. For the reasons set out earlier in this judgment I regard that assessment as inadequate. The notion that a Punjabi speaking grandmother living in India, expressing a clear interest in being assessed as a long-term carer for her granddaughter, not having been provided with any of the background papers translated into Punjabi, can be ruled out on the basis of two telephone conversations one of which was conducted by a Hindi speaking English social worker, is in my judgment wholly unsupportable.

 

    1. Re M-H (Assessment: Father of Half-Brother) [2007] 2 FLR 1715 concerned an application for a viability assessment. The judge at first instance had described the local authority’s viability assessment of the father of the subject child’s half-brother as “wholly inadequate” and “flawed”. The judge nonetheless declined to order a full independent assessment. In the Court of Appeal, giving the leading judgment, Wall LJ (as he then was) said that,

 

‘the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject….Accordingly, in my judgment, to do proper justice to [the child's] interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which [the appellant] had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it.’

  1. Z’s care needs require support from a multi-disciplinary team of health care professionals. Is there any possibility that a similar package of support could be available in India? If the answer to that question is ‘no’ then it seems to me that notwithstanding PGM’s offer to care for Z and the duty on the local authority pursuant to s.17 Children Act 1989 to promote the upbringing of Z by her family, it would be difficult to argue that a move to India would be in Z’s best welfare interests. However, making that point simply serves to highlight the fact that the court does not, at present, have sufficient evidence to enable it to make that judgment. There needs to be a proper assessment of PGM. Any such assessment also needs to identify and consider the services that would be available to meet Z’s care needs in India. These are now issues for further case management.

 

And the Judge wasn’t finished – given that the Local Authority care plan was for the current foster carers to adopt, he felt that their Re B-S analysis was badly flawed – it had not properly taken into account that such a placement could be under a Care Order (fostering) or a Special Guardianship Order and why those options should be discounted in favour of adoption. He made it plain that even if the independent assessments of father and grandmother weren’t positive, this case was a considerable distance from being “then adoption is the right plan”

136 My decision to allow the father’s application for leave to instruct an Independent Social Worker means that it is unnecessary and inappropriate, at this stage, to go on to consider the local authority’s final care plan. However, it is appropriate that I should make the point that it should not be assumed that if the assessment of the father is negative then that, without more, will lead to endorsement of the present final care plan. Even leaving to one side the local authority’s flawed assessment of the father, it is plain that the current final care plan is deficient. For example, it does not consider and analyse realistic alternatives to adoption (long term foster care, special guardianship); it does not consider whether it is appropriate for Z to remain in a placement in which there is a changing population of children in short term foster care; it assumes that post-adoption letter-box contact is appropriate without making any attempt to consider whether ongoing direct contact would better meet Z’s needs; it proposes by way of contingency plan that if the placement with FC breaks down it will search for an alternative adoptive placement even though it acknowledges that it is highly unlikely that an alternative adoptive placement could be found. These are all issues which must be addressed. The local authority has more work to do before this case can fairly be concluded.

 

I can’t quite find from the judgment what the timescales for the further assessment are, and obviously those assessments will need to be considered, final evidence filed from all parties and a final hearing take place. It probably amounts to a final hearing taking place at around week 90, or week 100.

 

But that is palpably and manifestly the right thing to do, to get the RIGHT answer.

I do worry that now that the Children and Families Act 2014 will lock Judges into 26 weeks, or an extension of 8 weeks, whether cases like this will get their proper determination.

Legal Aid Agency wasteful and inefficient (also important news about the Pope’s religion of choice)

Re R (Children : Temporary Leave to Remain) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

This was a private law case that really hinged on the fact that parents who were involved in difficult litigation could not agree about the mother taking the children to India on a holiday. The father was concerned that there was a risk that mother would not return from India with the children, and that India not being a Hague Convention country, that would mean a very costly and time consuming process to start litigation in India.

The Court, whilst feeling that mother’s RISK of doing that was relatively low, considered that nontheless there was a risk and the consequences could be very devastating. Within the proceedings therefore, an expert report was ordered by the High Court, determining that it was necessary to resolve the dispute justly and inform the Court. Part of that report was to examine the Indian law to see whether anything could be put in place.  The costs were to be divided equally between the mother and the Guardian’s public funding certificate.

The LAA refused to pay for this, and six months of bureacratic conversation and form-filling took place.

In an attempt to cut through all of this, King J set out in detail in an order why the report was necessary and why the costs were split in that way (rather than 3 ways – mum, dad, Guardian)

    1. I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:

 

‘And Upon the Court observing that:

a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;

b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality.

c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;

d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’

    1. Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.

 

  1. The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

 

That didn’t do the trick – as indicated, the Court actually had to determine the case without the expert report that they had already ruled was “necessary” to properly resolve the case.

This is an issue that the Court of Appeal had looked at in another case called Re R

    1. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

 

’23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

 

That’s pretty compelling authority for the use of experts in that scenario – one can’t expect a UK lawyer, or a UK Judge to understand the intricacies of family law in each and every non-Hague Convention country, and it is vital to know what those safeguards might be.

The final paragraph of the Court of Appeal decision in Re R anticipates the problems of funding such expert evidence

’28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President’s responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ’s exhortation for these cases ordinarily to be dealt with by the judges of the Division.’

 

As can be seen from this case, the Court of Appeal were prescient.

Bellamy J concludes his judgment with a coruscating evaluation of the Legal Aid Agency’s failings in this case, which meant that they in effect defied the orders of High Court Judges. There’s loads of it, and if you’ve ever had to wrestle with the LAA, it warms the cockles of your heart to see them take a kicking.

The Judge opens with this

I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

and then goes on to consider the labyrinthine process

    1. As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.

 

    1. On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are, (i) the estimate of the expert’s fees is excessive, (ii) no alternative quotes have been obtained, (iii) there is insufficient breakdown of the costs to be incurred, (iv) the expert’s costs should be borne by or shared with the other party, (v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.

 

    1. On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.

 

    1. I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.

 

  1. As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.

 

(I particularly like that last line)

and finally wraps up with this  (having recounted some spectacular missing the point emails from various workers at the LAA

    1. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.

 

    1. There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.

 

  1. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

 

 

I expressed some doubt via Twitter that the response in writing would (a) ever be received and (b) ever be published, but I am reassured on both points. Once it is published in anonymised form, I will gladly report on it.

There are some “costs against third party” decisions from Courts, and it is clear that expenditure did get incurred both for the parties and the Court – it seems to me that it is legally possible to make an order for costs against the LAA.  It does raise the obvious issue with the parties that if they are being paid by legal aid, then the LAA are ALREADY paying their costs, so a costs order there does nothing at all. But it might be possible to calculate the time wasted by the High Court judges (who are not a free, or inexpensive resource) and decide that the LAA should recompense HMCS for that waste of time. If the father was paying privately for the litigation (and I simply don’t know the answer to that) then I would imagine that the wasted costs bill for that would make the £2,100 the LAA were quibbling about pale in comparison.

 

uncharted waters

The limits of current medical knowledge on fractures and rickets, discussed in the case of A Local Authority v M and Others 2013

 

http://www.familylawweek.co.uk/site.aspx?i=ed127031

 

This was a case where His Honour Judge Hayward-Smith had considered a fact-finding hearing about a child who had suffered multiple fractures, including a skull fracture. At that hearing, the medical evidence had been unanimous that the child had been suffering from rickets but that the injuries had been caused by the parents, and hence the findings were made.

 

Subsequent to that, the judgment in Al Alas Wray was published, and that obviously highlighted the possible connection between Vitamin D deficiency, rickets and fractures in children.

 

The case came back before the Judge, who authorised some fresh experts, to look specifically at whether the presence of rickets in the children might mean that the fractures were not caused deliberately by the parents.

 

The medical evidence here was not simple, and not agreed, and the Court had to not only address the conflict between the medical evidence, but also to address the fact that the issues in question were butting up against the edge of what was known medical science and attempting to extrapolate from that what might be learned in the future.

 In particular, it became clear that what was not known at this stage, and did not exist in the research was

 

(a)   Whether having rickets meant that a child could suffer fractures more easily or with less force than a child without rickets would require to cause the same injury; and

 

(b)   If so, how much more easily, how much less force?

 

(c) The extent to which rickets affected the healing speed of fractures, and thus the reliability of usual dating techniques to decide WHEN the injury happened where rickets is a feature.

 

On the first issue, the experts were agreed that the existing research on animals did strongly suggest that for animals there was a sufficient link between the presence of rickets and fractures occurring more easily or with less force to be confident that a causal relationship existed, and that this PROBABLY mean that the same was true of humans, and human children too.

 

On the second and third issues, there was no certainty at all and no research evidence yet to point clearly in either direction.  (Again, with animals, the research showed that rickets did impact on the healing rate of fractures)

 

One of the evidential issues that arose was whether, within the body of children who have rickets (and are known to have rickets) fractures and multiple fractures as in this case was a common feature, a fairly rare feature or an almost unheard of feature.

 

 The problem here was that although the Court had the benefit of two experts with a lot of experience on the issue, their experience differed, and neither had the raw data or research, just their own observations. One thought it was almost unheard of (and thus that with multiple fractures NAI was a more likely explanation for the injuries), the other felt that it was fairly rare but within his own experience.

 

Is the multiplicity of fractures significant?

33. As the evidence developed this issue appeared to me to lie at the heart of this case.  Professor Gardner went so far as to say that Professor Bishop’s experience in this area led him to conclude that this is a case of non-accidental injury.  There is no doubt that Professor Bishop is a very distinguished expert in this field.  He was described by one of the experts as knowing more about this field than anyone else in Europe.  Professor Bishop said during the course of his evidence:

“In Sheffield we see approximately 500 children in any one year.  The majority will have conditions leading to bone fragility, the majority being osteogenesis imperfecta [which is not rickets].  I have been involved in this area since 1987 with babies, including premature babies, and older children since mid-1990s.  I have seen cases of rickets and the number reaches three figures.  [He did not go further as to what he meant by three figures, but it is clearly a large number of children]. 

“Of the children that I have seen with rickets, as far infants are concerned and indeed older children, I have only had three or four with fractures and only one had multiple fractures.  The children, in my experience, with multiple fractures are mobile and not as young as M who would have been immobile, but in one case a child was so ill that the bones could hardly be seen on x-ray and there were multiple fractures; and in that child, indeed, the rib cage had fallen in, it was very severe de-mineralisation of the bones.” 

That evidence reflected what he had said at the experts’ meeting.  The transcript of what he then said reads as follows:

“My concern remains that I have seen a number of cases of rickets which are more severe than this where there has only been one fracture.  I have not seen any other child in my own clinical experience with this number of fractures with rickets or, alternatively, in the literature with a description of this number of fractures in the presence of clinically apparent rickets.  So to me, this is a disproportionate number of fractures and it was actually the reason that I agreed to take this case on in the first place because it was unusual and because I was expecting, when I reviewed the child clinically, to find evidence of some other underlying bone disease that would provide an explanation for the fractures not the rickets.” 

Professor Barnes then asked the question whether that reflected Professor Bishop’s experience in relation to children under the age of six and Professor Bishop said:

“Yes, certainly, it does reflect my experience that it is unusual to see this number of fractures in an infant with vitamin D deficiency, rickets, at this age and that is an experience that goes back over quite a large number of years.  Before I did bone disease I did a lot of neonatology for ten years and we did see from time to time infants in the premature baby unit who had fractures as well, although the aetiology there is quite different.  But this is a stand out from my perspective over that long period of time.”

Professor Barnes then asked him whether his experience had reached the literature and Professor Bishop answered: 

“No, it has not reached the literature because, as I say, it is a scattered experience over a long period of time and I have not kept the case notes of each individual child seen over that period so it is a cumulative experience.  I have talked as well with a number of colleagues about what their experience has been and the general agreement, I have to say, is that one fracture is not unusual in rickets, occasionally two, but, you know, more than that, four, no, we don’t see that.” 

He then said in further evidence:

“Even with that child that I referred to with very severe rickets, there were only three or four fractures.  The majority of rickets cases don’t have a single fracture.  Given the likelihood of multiple fractures in the context of rickets, it is more likely in this case that there has been a use of excessive extraneous force.”

He went on to say:

“There is no objective measure of force required to produce fractures.  In normal children, multiple fractures would indicate abuse.  Multiple fractures in rickets is not borne out on the evidence of my experience, but there is very little published evidence in relation to children under six months.  We x-ray babies all the time.  If rickets was responsible for a lot of fractures we would be seeing multiple fractures in children with rickets and we just don’t see them.  In some parts of the world many children have rickets and there are no reports of multiple fractures.  A fracture, and certainly multiple fractures, is uncommon in rickets.”

That is strong evidence from a distinguished source and I take it very seriously, as indeed I did at the last hearing.

34. There is no objective research and no literature to assist much in this field.  Professor Nussey told me that animal research indicates that rickets in animals greatly reduces the force required to break bones and all the doctors agree that that is likely to be so in humans.  Reference was made at this hearing, as at the last hearing, to the Chapman study, but it is of limited value because of the limited number of children involved.  Professor Nussey’s written report includes the following passages:

“The question as to whether the presence of several fractures rather than one is an indicator of abuse rather than general bone fragility is impossible to answer in the absence of any objective measure of the change in the tensile strength of bone in rickets.  Skull fractures are said to be unusual in rickets, but they have been reported.”

Professor Nussey said that he deferred to Professor Bishop’s experience in this area, but I did not take him to be wholly jettisoning his own evidence. 

35. Professor Barnes had much greater direct experience in this area than Professor Nussey.  In his hospital he treats approximately twelve children a year who have rickets, but in addition cases are referred to him and his unit from across the United States and he has seen a total of about thirty-six cases a year since 2008.  He is compiling a database of such cases.  Most of the children referred to him have fractures; that is usually why they are referred to him, as he put it, to sort out which are the cases of non-accidental injury and which are not.  He has a particular interest in children under the age of six months.  Most of them referred to him that he sees have multiple fractures, but by no means were all of them caused non-accidentally. 

36. Professor Barnes’ experience of children with rickets having multiple fractures differs from that of Professor Bishop. The reason for the difference in their experience is unclear, but it has been suggested that more x-rays are taken in the United States and so more fractures come to light.  In the United States most cases of rickets are referred to major centres, whereas in the United Kingdom they tend to be dealt with locally. 

 

 

 

In the concluding passage of the analysis of the medical evidence, the Judge said this:-

 

All experts agree that there has been little research into the nature of the issues in this case.  Rickets has been curable since the 1920s and there has, therefore, been no pressing need for such research.  All experts agree that the issues in this case should be approached with caution and that there were many unknown factors including the amount of force required to cause a fracture.  Professor Bishop said that he could not be sure to the criminal standard of proof that this was a case of non-accidental injury.  He put the balance of probability at about 75%.  Both Professor Nussey and Professor Barnes say that there is insufficient evidence to say whether or not non-accidental injury has occurred in this case and that the evidence is consistent with innocent parents. 

43. At the last hearing the medical evidence pointed inexorably to the findings I made.  This hearing has been very different.  I am now doubtful whether the parents would necessarily have noticed any of the fractures, apart from the humerus and the skull to both of which they reacted appropriately.  I have conflicting evidence as to the relevance of multiplicity of fractures.  I bear in mind that the parents have given no explanation for the injuries apart from a tight garment pulled over the head and a possible knock on the head in the car, but – given the nature of the rickets, the uncertainty of how bad it was prior to 2nd January and the lack of knowledge of how much force would be required to break a bone – it would, in my view, be wrong to draw the inference that a lack of explanation from the parents indicates non-accidental injury.  For all those reasons, I am not persuaded on the balance of probability that the parents did cause these injuries to M.  I do not find, therefore, that the section 31 significant harm threshold has been crossed. 

44. I add one final word about the medical evidence.  I have great respect for all the experts in this case. They are all very impressive.  I would not wish to be taken as criticising any of them or rejecting the expertise of any of them.  This case involves areas of scientific uncertainty where there has been a paucity of research for reasons I understand.  Medical experience differs and caution is required, as indeed all the doctors involved accept. 

 

 

The Judge could have done nothing other than this, I think. We have reached a point in determining non-accidental injuries where rickets is demonstrated to exist where we simply do not know, and are not likely to find out any time soon, whether it makes such a difference that injuries that appear deliberate are in fact caused by relatively minor trauma; and where such doubt exists, the benefit of it has to be given to a parent.

 

It is an invidious position for all involved to be placed in – for the parent who can’t find the definitive answer and might end up being separated from a child temporarily or permanently, for a social worker who is trying to make a decision about whether the risks mean that such a separation should be sought, for the doctors on the ground trying to reach a conclusion, and for Judges who are having to make a decision as to whether what on the face of it are awful and serious injuries may have their causes in biochemistry outside the parents control or responsibility.

 

One thing is for certain, in any case of suspected fractures to children, getting an answer as to whether rickets or vitamin d deficiency are a clinical feature and getting that answer early will be vital.

Death by a thousand cuts – expert fees take another hit

 

You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011   (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)

 

As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below

 

http://www.justice.gov.uk/downloads/legal-aid/funding-code/remuneration-of-expert-witnesses-guidance.PDF

 

These rates now come in to all cases with a start date after December 2013   (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)

 

 

Picking out the ones most common in care proceedings  (these are non-London rates, some of the London ones are slightly different)

 

[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]

 

Child psychiatrist now £108 per hour  [the rate in 2011 was £135]

 

Child psychologist £100.80 per hour [the rate in 2011 was £126]

 

DNA testing  £252 for the sample and testing, £72 for the report  [2011 was £315 and £90]

 

Interpreter £28 per hour   [2011 was £32]

 

Neurologist £122.40 per hour [2011 was £153]

 

Paediatrician £108 per hour            [2011 was £135]

 

Psychiatrist £108 per hour               [2011 was £135]

 

Psychologist £93.60 per hour          [2011 was £117]

 

Risk assessment expert £50.40 per hour [2011 was £63]

 

 

 

If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.

 

The new guidance is silent on social work costs, which have historically been at £30 per hour.  Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.

Seven!

 

Sorry, am thinking of the Experts on Strictly…    The Government have determined the standards for expert reports in care proceedings. From the press releases, you would think that these standards would transform the expert reports that the independent study showed were pretty ghastly and not fit for purpose in a significant number of cases, particularly given the cost to the taxpayer and the delay for children that obtaining them often caused.  

As usual with modern government, you can find press releases and news reports of the launch – plenty of stuff saying how marvellous the new arrangements are or will be, but finding the actual substance underneath all of the fluff is always difficult. That’s what I’m here for

 

The link is here: – https://consult.justice.gov.uk/digital-communications/expert-witnesses

 

But as the standards are so skimpy   (sorry, thorough, but condensed into short, practical guidance) I have just set them out in full here. 

 

[I wrote on this before at the time of the consultation, and am disappointed to see that the formulation of 'has been active' rather than 'is active' survived to the final draft. I wrote then, and I re-emphasise now, that I am aware of experts who have done nothing but Court work in the last two decades if not longer, and they still meet this test because 'has been active' doesn't even have a 'recently' caveat.   One might also think, given how fast the law on adoption has been developing that the expert might be obliged to keep up to date with the legal requirements before recommending options]

 

The Final Recommended Standards

‘Standards for Expert Witnesses in Children’s Proceedings in the family court’

Subject to any order made by the court, expert witnesses involved in family proceedings (involving children) in England and Wales, whatever their field of practice or country of origin, must comply with the standards (1-11)

1. The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.

2. The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.

3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.

4. The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

5. If the expert’s current professional practice is regulated by a UK statutory body (See Appendix 1) they are in possession of a current licence to practise or equivalent.

6. If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert

should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis. Registering bodies usually provide a code of conduct and professional standards and should

be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

7. The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.

 

 

 

8. If the expert’s current professional practice is outside the UK they can demonstrate that they are compliant with the FJC ‘Guidelines for the instruction of medical experts from overseas in family cases’

 

9. The expert has undertaken appropriate training, updating or quality assurance activity –

including actively seeking feedback from cases in which they have provided evidence21

- relevant to the role of expert in the family courts in England and Wales within the last year.

10. The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

 

 

Expectations in relation to experts’ fees

11. The expert should state their hourly rate in advance of agreeing to accept instruction, and give an estimate of the number of hours the report is likely to take. This will assist the legal representative to apply expeditiously to the Legal Aid Agency if prior authority is to be sought in a publicly funded case.

 

 

[I'm afraid, channelling Mr Revell-Horwood, this is at best a Four. A-bys-mal]

Human error in the lab

X X Local Authority v Trimega 2013  (this one may make you shudder, as you think of all the cases where scientific results have played a part in the decision)

 http://www.bailii.org/ew/cases/EWCC/Fam/2013/6.html

 It is a County Court case and I am very grateful to have had the imminent publication of this brought to my attention.

I am going to be VERY VERY careful about what I write in this analysis, because there are large financial sums at stake hence significant commercial interests and I am aware that the institutions involved are prepared to litigate to protect those interests. For the same reason, I might have to edit comments on this one, so be a bit careful please.  The judgment makes it plain that the company concerned have identified the problem and put in place safeguards to prevent it occurring again.  (I think that’s enough back-covering and insurance against me being sued, I will now report the facts of the case)

 There was a final hearing in care proceedings in July 2013 – the LA had been seeking a plan of adoption. The mother persuaded the Court and the parties that her problems with alcohol were behind her, and had some test result evidence to support this. The final hearing was adjourned for a few weeks, with a view to seeing whether a plan of rehabilitation could instead be achieved.

 

Shortly afterwards, a blood alcohol test was conducted by Trimega, this arriving on what would have been the first day of the adjourned final hearing.

 

Between 22 and 25 July 2013 a further blood alcohol test report on the mother was received from Trimega. It was dated 17 July 2013 and the result for the mother’s CDT level was 1.6% — just on the cut-off point between negative and positive results and an obvious increase on previous results. It was of great concern in that it indicated that the mother appeared to have been drinking when she was adamant that she had been abstinent from alcohol for many months. Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care. The local authority therefore no longer supported such a plan

 

One can see that having been persuaded that alcohol was no longer an issue, getting that sort of result would give a local authority pause for thought, and that the test result was a single tipping point factor in the decision the Court would make.

 

The Judge did not however, rush into things, and directed for further evidence to be obtained.

 

  1. On 25 July 2013 I gave directions, having found it was necessary to have further expert evidence in accordance with Part 25 Family Procedure Rules 2010, for further blood alcohol testing by a different expert and for Trimega to report in respect of the interpretation of mother’s alcohol testing results and for a new final hearing date. An updated opinion had been sought urgently from Dr Hallstrom who said he no longer felt able to support the rehabilitation plan. On 25 July 2013 by email he said that “the fact that [the CDT] result was low a few weeks ago and now raised, raises the strong suggestion that there has been heavy drinking in the last week or two….” It is right to say that if it had not been for this new test result of 1.6% a final order would have been made on 25 July 2013 and the child returned to her mother’s care.
  1. In Trimega’s report on the father of 7 December 2012 the interpretation section says that “CDT values below 1.6% cannot be used to distinguish between social drinking and abstinence but when the value is elevated above 1.6% this marker does reliably identify someone with excessive alcohol consumption”.
  1. In Trimega’s reports on the mother dated 18 June 2013 and 17 July 2013 it said that:

“The CDT screening test has been found to be one of the most accurate blood biomarkers for alcohol abuse because individuals with a daily intake of more than 60 grams of alcohol over more than two weeks have elevated levels of CDT. In regular drinkers their level of CDT continues to be elevated for between two to four weeks after abstaining, depending on the original increase in the level that existed for that individual. That means that for most people who are dependent their elevated CDT level will be detected even if they find themselves able to abstain for a short period before a test is performed.”

 

Get ready to shudder

 

  1. Trimega, in considering the significance of the raised CDT level as instructed after 25 July 2013, found that it had made a mistake and the CDT figure should have been 0.2% and not 1.6%. Trimega admitted the error and apologised then to the mother’s solicitors by email dated 9 August 2013. An interim hearing was listed and on 21 August 2013 the child was returned to her mother’s care under an interim supervision order in accordance with a new rehabilitation plan. The following orders were made, among others:
  • The solicitor for the mother shall serve this order upon Trimega Labs inviting it to attend at 2pm on 3 September 2013 to explain the error made in the blood test result dated 17 July 2013 and to address the issue of wasted costs should any party make an application for a wasted costs order.
  • Any application for wasted costs shall be filed and served on the parties and Trimega Labs by 4pm 28 August 2013.

 

 

The result of the blood alcohol test which made people think that the mother had been abusing alcohol had been wrong, and what appeared to be a failing or borderline test was actually a clear indication that she had not been drinking alcohol. A number which ought to have been written down as 0.2 had instead been written down as 1.6.  It was a ‘clerical error’

 

I make it plain that the Judge, whilst making a costs order and deciding that there was a wider public interest in publishing this order, was not seeking to coruscate Trimega (though note my underlining)

 

  1. I do not say that the error made by Trimega amounted to a “flagrant reckless disregard” of its duties to the court and I accept it was a human error. I am reassured that the discovery of this error has lead Trimega to add a new procedure whereby a further specific check is made back to source material before a report is finalised and its staff understands the importance of the new measure. Trimega accepts that the mistake should not have occurred and is keen to make sure it does not happen again and it accepts that it was in breach of its duty to the court. Trimega accepts that the direct consequences were considerable upset and distress for the parents in this case, additional costs and not least a delay of four weeks for the child in being placed in her mother’s care. Trimega has made its apology.
  1. I have decided to publish this judgment because I consider that it is in the public interest to do so. The family courts should be as open and transparent as possible to improve public confidence and understanding. In this case expert evidence was relied upon and if the mistake had remained undiscovered it is probable, given the history in this case, that it would have led to the adoption of the child instead of rehabilitation to care of her parent. Close scrutiny of expert evidence is needed and all the surrounding circumstances have to be considered in a situation such as this where the interpretation of test results was so important and influential.

 

 

I should also again point out, for the purpose of fairness, that what had happened here was not an unreliability of the testing process or the interpretation or reliability of that interpretation, but a human error in transposing two numbers when the results were recorded.  

 

It was, as can be seen from my underlining, a human error that could have had catastrophic consequences for this child and the family, and perhaps for future children as well.

 

Perhaps worth remembering that any process involving human beings involves the possibility that human beings, flawed and frail and wonderful as they are, do sometimes make mistakes.  And that even an honest mistake can have huge consequences if not detected.

 

The mother was fortunate in this case to have tenacious representation and a Judge who was more concerned with getting the right decision than being rigid about delay and further expert evidence.

[If my past experience is anything to go by, expect to receive an email from this firm's competitors soon, drawing this case to your attention. There's not much love lost between the major players]

“Eggs, eggs, damn all eggs!”

Judicial wrath about the pervasiveness of the word “concerns”  in a care case, and the word being used to mask the lack of substantiated evidence or allegations.

Re Avon, North Somerset and Gloucestershire Public Law Case 2013

 http://www.familylawweek.co.uk/site.aspx?i=ed117568

(The title is taken from the Master, P G Wodehouse, who described Bertie Wooster’s uncle, Lord Worplesden, as having one day come down to breakfast, lifted the silver platter and shouted “Eggs, eggs, damn all eggs!” before fleeing home and never being seen again.   I just like it as a pithy way to convey the feelings of sheer hopeless exasperation)

The Judge in this case made a number of complaints about issues that had arisen in the case – he anonymised the LA involved, by naming all three who regularly appear before him  (nice for the one in trouble, who got to hide in the shadows, but rather rough on the two completely innocent ones who get tarred with the brush of suspicion when they had nothing to do with it)

 

Many of the complaints, though made about the LA, also relate to judicial decision-making (the listing of a finding of fact hearing, the absence of a proper schedule of allegations, the delay, the proliferation of expert evidence – none of which can be done by an LA in isolation, the Court has to shoulder some of the responsibility for this)

 

But then it gets into interesting territory, where the Judge talks about the reasons given by professionals for not wanting to place the children with grandparents

 

 

10.  Time and again I was told that the Local Authority had ‘concerns’ about issues (the word ‘concern was used by the Local Authority advocate more than twenty times in one day). Those ‘concerns’ were not substantiated by direct evidence and should have been. I give this very clear example. The head teacher of a school was called to give evidence about events relating to the other children in the grandmother’s household. Her statement was about events in July 2013 and suggested difficulties within the grandmother’s home then. I asked [sic] whether the events of which she was speaking were representative of the school’s perception of the grandmother’s overall care of those children. I was told from the witness box that there were many other things that the school could say and would want to say. They were not contained in any statement but, I was told by counsel for one of the Respondent parties, reference to them could be found ‘dotted around’ the four lever arch files. Evidence was also available from the health visitor (but did not feature in any statement). If a Local Authority seeks to substantiate an important contention it must do so on direct evidence where that evidence is available. Hearsay evidence is admissible but that does not mean that a Local Authority can dot its contentions around a bundle and then expect a court to reach satisfactory conclusions on issues of such fundamental importance to children and families.

 

 

That does, to me, raise two very important issues.

 

Firstly that the word concern can be waved around in Court and be emphasised and repeated so much that ‘concerns’  (which end up being rather less than ‘allegations’ and far far less than “proven or determined facts”) begin to morph from an insubstantial wisp to solid reasons for not doing something.  I think the Court is right to drag everyone back to the foundation that we work on evidence and proven or provable FACTS, not flights of fancy.  Even where a risk is put as being one that “Cannot sensibly be ignored”   that determination has to be made on the Court establishing that facts that lead up to that risk are made out on the balance of probabilities.

 

Secondly, we are back on the issue that “Judges are not forensic ferrets”  – if the nub of the case is not gathered together in one place (with cross-referencing) but is dotted around the papers hither and thither, to be found by only assiduous reading, that simply won’t do.

 

 

This led on to the Judge’s proper criticism that what seemed to happen with the assessment of the grandparents is that professionals devoted all of their attention to negative criticisms and gave no thought or weight to the potential advantage of a child being cared for within the family or the potential disadvantages to the child of being cared for by strangers (the very heart of Re BS)

 

11. the unprincipled approach to welfare issues. Entirely omitted from the special guardianship report and much of the other welfare analysis were two matters which were of utterly elementary and fundamental importance:

i) The effect now of removing the boy from the grandmother. In welfare checklist language, what would be the effect on the boy of the proposed change in his circumstances that would arise if removed from his current home and what are his emotional needs to remain a part of his current household?

ii) The significance of the boy maintaining his place as a child cared for within his natural family. The boy has an established family life with his grandmother (Article 8 of the Convention was therefore engaged). He had spent the majority of his life in a household with other children there (aged 10, 12 and 15). His step grandfather had played a very full role in his upbringing. By remaining in his family he would continue to see his mother in structured contact.

12. I found it deeply demoralising that these simplistic issues could pass without even being mentioned. What happened in the hearing is that all possible negative points about the grandmother were explored in evidence. At least some of them had no foundation at all. Some of these negative ‘concerns’ were expressed in superlative, wholly unjustifiable and internally contradictory terms, especially within the special guardianship report. For instance I heard in oral evidence that the grandmother was not child focussed and did not co operate with professionals; that was not borne out by the report of the person who said it (or by the evidence of others) and was manifestly unbalanced. It is to the credit of the grandmother that she maintained her decorum whilst this whirl of ill considered evidence was being given about her.

 

Following Re BS, the obvious remaining piece of the jigsaw is going to be how the Court approach the assessment of family members and having a much more robust approach to testing the Local Authority’s assessments where these are ‘negative’   – and indeed whether there ought to be some ‘test’ that ought to be applied by the Court to determining whether a child could be placed with a relative notwithstanding that this is not the Local Authority’s plan.

 

I believe that the Court of Appeal might be mulling this issue at present…

Doc, Doc,Doc Doc Doctor Beat

 

When Judges disagree with doctors  – I’ve been interested in this for a little while now, and another case of this type has just flitted across my screen, so,

 

a quick run down of the recent reported cases where the Courts have, in considering an NAI case, gone against the medical evidence (or at least some of the medical evidence)  to find that the parent had not caused the injury.

 

This is very unscientific, I have just gone to a well known caselaw database and looked for family cases under the topic “medical”, so some cases will not have come up. I’ve just looked over the last 3 years.

 

[I am not, in case you doubt, arguing that the Court was wrong to do so in any individual case.  There’s a wealth of strong law about it being a matter for the Judge, not the doctor and the other factors to be taken into account, but I had in mind that it seems to be an increasing trend for Courts to go beyond the medical evidence and to decline to make findings based on the wider evidence, including often entertaining the hypothesis that today’s medical certainty may be tomorrow’s grey area and I wanted to look at that. Again, whether that is a good or bad thing depends on the individual facts of the case and your viewpoint. It is overall, of course, the job of Courts in finding of fact cases to get as close to possible as they can to the truth after a forensic exercise marshalling as much information as possible.

 

All of these cases may be worth a look if you are representing a parent in an NAI case where the medical evidence is not promising]

 

 

This is the most recent one

 

 Re A (A child) 2013   - child of a year old, two rib fractures. Mother said caused by a fall on him by an older sibling, all medical evidence was that this was highly unlikely. Evidence in the case of mother having a loving relationship with the child, Judge found that the injuries had not been deliberately caused, Court of Appeal upheld this.

 

Re R 2013  - 14 month old boy suffered burns from scalding water in a bath. Mother said he had been left alone for a brief period with no water in the bath and had turned the taps on himself.  Judge found that mother’s explanation was not right and that the boy had not turned the taps on, but the water had been there due to mum’s actions, though could not explain why she would have done this.  An interesting one, as Court of Appeal were split. One of the Court of Appeal judges felt that the trial Judge was right to have made the findings (Thorpe, the family judge), the other two felt he was plainly wrong, and the decision overturned.

 

Re ED and JD sub nom Devon County Council  - there was a comprehensive family medical history, including mother being a sufferer from Ehler-Danhloss syndrome   (I have heard it floated in almost every NAI case I’ve ever been in, but this is the first time I have read of anyone actually having it). There were nine rib fractures and subdural haemorrhages. The Court found that it would be surprising, given the evidence about the parents loving relationship with the children, if they had caused the injuries although it was possible, and concluded that  the LA had not proven the allegations of Non Accidental Injury

 

Re M (children) 2012     - I have blogged about this one before, it is the case where the child suffered what were described as ‘spectacular’ head injuries, to the point where the eminent experts involved could only pull up one point of comparison, being a man who had walked into moving helicopter rotor blades. The Court found that the head injuries, being inexplicable could not be said to have been caused by the parents, and thus that the rib fractures (where there was no medical doubt about them being NAI in causation) could not be safely said to have been caused by the parents.

 

 

Re M (A child) 2012  - 8 separate bruises on the arm of a child who was just weeks old. The medical opinion was NAI, the Court considered that the parents had also been dishonest in their evidence and made the findings. The Court of Appeal overturned this, considering that although the parents had not provided an explanation which the medical experts considered could be consistent with an accidental explanation, it would be a reversal of the burden of proof to then move to a conclusion that this meant the injury was non-accidental.

 

London Borough of Sutton v G 2012    - seven week old child collapsed, and had previously suffered burns. The Court had mixed medical evidence and accepted the conclusion of the experts who said that the collapse and injuries were due to an obstruction of airways rather than any non-accidental explanation and the parents were exonerated.

 

 

And on the flip-side, and this is the first one I have hit upon on this unscientific trawl of reported cases  - I know that there have been others, the other Ricket cases amongst them, so my trawl has been unscientific     

 

Re C (a Child) 2012 – where a Judge made findings, amidst competing medical evidence, that a mother had picked up her baby and shaken the baby in hospital following an admission for an earlier trauma. The Court of Appeal considered that the finding was ‘surprising’ but not plainly wrong.

 

 

Re A A 2012  - the Local Authority had not proved that a mother had killed two previous children, although did satisfy the Court that the threshold was met on chronic neglect. There was some medical evidence about a particular gene that the mother had which might have accounted for the death of the children.

 

Islington v Al Alas Wray 2012  - which you all know very well by now, the Court determining that the injuries were as a result of rickets brought about by Vitamin D deficiency.

 

 

Another one which made the findings despite contested medical evidence

 

Re L (Children) 2011   - the Judge made findings that the deaths of two children were due to deliberate actions by the mother, not to cardiac arrest, and although the medical evidence was mixed, the Court of Appeal upheld the decision. Where there was any uncertainty in the medical or scientific field a judge’s appraisal and confidence in the parent’s credibility was crucial to the outcome.

 

A County Council v Mother and Father 2011   (The Mostyn J case previously blogged about)   - the injuries were severe and peculiar, resulting in death to one child. The Judge was unhappy with both the medical explanations for the injuries and the parents account, and effectively found that neither were accurate but that the LA had thus not satisfied the burden of proof.   [Still not sure why that one didn’t get appealed]

 

Re LR (A Child) 2011  - cuts and burns to an 8 year old, the Court found that they were self-inflicted, despite medical evidence being doubtful that this was the case and that there had been no documented case of such injuries being self-inflicted by a child of this age, Court of Appeal upholding the decision of the initial judge.

 

Re R (A child) 2011  - Hedley J. [The ‘we are fearfully and wonderfully made’ case]

 

 Leg fracture to a seven month old child, following an admission aged 3 months to hospital for subdural haematomas. Judge heard the medical evidence that both were NAI, and determined that there might be an organic cause for the head injury that were not yet known to medical science. Hedley J then went on to say that notwithstanding the inherent unlikeliness of the leg fracture having been incurred accidentally, that is what he found to have happened.  [This is an interesting case to read, to see precisely how a Judge finds that something he considers inherently unlikely was on the balance of probabilities more likely than not to have happened…]

 

 

 

 

 

 

You be frank, I’ll be earnest

 

Another judgment from Mr Justice Baker, who I’m becoming increasingly fond of (although I think his decision about termination of parental responsibility probably will get overturned by the Court of Appeal).

This is Re L and M (Children) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1569.html

 

It is, sadly, not a terribly unusual case – unusual in society in general but not in the field I practice in. There were multiple and serious injuries to the child, and the medical opinion as to how these had been caused was at variance with how the parents said the injuries had been caused. The Judge carefully considered all of the evidence, and the judgment is a perfect analysis of the caselaw and the competing factors that the Judge has to consider, not least of course the well-known quotation from Dame Butler-Sloss   “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” 

 

The findings against the parents, including that they had not been honest in their account, were made by the Judge. So far, so commonplace, but there are two features in the case which lift it, and make it worthy of discussion.

 

Firstly, the judicial approach towards the instruction of experts in the case.  (It will not surprise you to learn that I completely agree with the Judge here, and commend him for saying these things. I have grave doubts that a case like Al Alas Wray would reach the same outcome, were we to try it again next year, because getting to the truth required the Court to be amenable to the instruction of multiple experts and no doubt delays were incurred in getting to the truth, which was that the parents were not responsible for the dreadful injuries and that there was a medical cause, allowing them to be reunited with a child rather than that child being adopted. It is simply, but ghastly, to imagine, how that case would have developed if the Court had simply heard evidence from the (very eminent) treating medical professionals.

We don’t hear, for my mind, enough about Al Alas Wray. We have set off upon a path, in family justice, of child rescue dominating over family preservation, no doubt in part due to the rightful sense that what happened to Baby P should never happen again. But what happened to the Al Alas Wray family ought not to happen to other families, and what could have been far worse (that their child was wrongly permanently separated from them) is equally something to be avoided if at all possible.  It worries me deeply that such cases might slip by us in the future.

    1. At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

 

    1. As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

 

    1. There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

 

    1. In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

 

“Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”

    1. This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

 

    1. Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

 

  1. This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

 

And secondly, as this was just a finding of fact hearing, there would then be a phase two, where assessments took place as to the future risk of harm that the parents might pose. The Judge reinforced this :

 

    1. I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

 

  1. All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.

Nothing terribly new or controversial there, but a warning between the lines about how such cases will be dealt with in our brave new world.

The President has indicated that cases involving non-accidental injuries will only go beyond the 26 week limit in exceptional cases, and the mere fact of a finding of fact hearing being required won’t be sufficient to warrant a delay. Well, that’s all well and good, but what it will mean in practice is that where now, these parents would have something like a 10-14 week period to reflect on the judicial findings, perhaps accept them, perhaps partially move towards them, perhaps put some practical or therapeutic arrangements in place, they will from autumn of this year, probably get a 2-3 week period to do so.  The consequence of findings in a case like this, might be that a mother and father need to separate from one another, and it seems to me inhumane to expect them to make decisions of such gravity so quickly. Additionally, that assessment of future risk would probably have been undertaken by an independent expert, whereas from autumn of this year, it almost certainly will be undertaken by the social worker, who just 2-3 weeks earlier was effectively prosecuting those findings. It isn’t much time to turn around the parents views, and still less for the parents to be able to turn around the view of the social worker.

 

We shall see. The revised PLO is nearly upon us, and it will be happening, so all that we in the system can do is to try our best to make it work fairly for all involved. I’ll try to stop carping from the sidelines and try to come up with positive solutions as to how we make this system work fairly, but my fundamental thought is that it WILL require WORK to make it fair and that approaching the new regime as “like the old one but faster” won’t be sufficient, people in the system will have to be more alive to the need for us to get decisions that are not only swift but RIGHT.

 


 

Eating cabin-boys and instructing experts

What do eating cabin-boys and instructing experts have in common? Well, it seems that the law frowns on both, and queries whether either was necessary.

The Court of Appeal have given judgment in the much trumpeted issue of what the word ‘necessary’ means in the context of the new requirement in the Family Procedure Rules that before an expert can be instructed in a family case, the Court must determine that their instruction is necessary.

 Re H-L (A Child)  2013

 http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/h-l-judgment-13062013.pdf

In the current context and climate, the Court of Appeal were clearly keen to tackle this issue and give a steer on it as soon as possible. This is how the President opened

 

 

1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250.

2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para [30]):

“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”

We now have to decide what is meant by ‘necessary.’

 

Game on, as they say. So, what does necessary mean?

The short answer is that ‘necessary’ means necessary.

 

 If you are thinking, crikey, was there something good on television or for lunch and the Court of Appeal just wanted to get this whole thing done, don’t worry, we develop the short answer a bit.  (not much, I am trying not to give this a huge build-up)

 

 

If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it “has a meaning lying 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.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

 

 

So a spectrum somewhere between indispensable and useful/desirable, but much more towards the indispensable side of the scale.

 

The Court allowed the geneticist and upheld the refusal for the other two experts (a paediatrician and a haemologist)

 

The President also used the case as a reminder that the appellant Court will strive to uphold reasonable and robust case management decisions  (no doubt being mindful that a lot of the current problems that are striving to be unpicked are due in part to the Court of Appeal knocking back any Judge who actually tried to follow the principles of the current Public Law Outline)

 

As this is so short, permit me a digression.

 

That’s rather better than I envisaged, when I mockingly suggested that we would be incorporating the Dudley and Stephens opinion of  necessity into care proceedings.  For those of you who didn’t study law, or did so a long time ago, Dudley and Stephens was the case of shipwrecked sailors who being both marooned and peckish, killed and ate their cabin boy. In mixed blessings for them, they were then rescued (hooray!) but then tried for murder.

 

http://www.justis.com/data-coverage/iclr-bqb14040.aspx

 

The sailors pleaded that they had to kill the boy and eat him or they would all have perished and therefore it was necessary to eat him. This was an attempt to introduce a doctrine of necessity into the criminal law as a defence. The jury could not decide what to do and the case was referred up to the Court of Appeal for guidance.

 

This doctrine of necessity defence was rejected by the Court, in a lovely passage by Lord Coleridge

 

From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother’s notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that “if the men had not fed upon the body of the boy they would probably not have survived,” and that “the boy being in a much weaker condition was likely to have died before them.” They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him

 

 

And then

 

It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder

 

 

This is a lovely judgment, bringing in all sorts of ideas and references, and interesting to me as a law geek particularly because the Court recognise that the case is a real-life version of a hypothetical example given in legal textbooks of the time of two sailors on a plank and would it be lawful for one to eat the other to prevent them both starving. The authors of the legal textbooks had suggested that it would be, but the Court disagreed.

 

The sailors were found guilty and hanged.   [The whole set up reminds me of those Fortunately-Unfortunately-Fortunately-Unfortunately games/stories we used to tell at school  http://en.wikipedia.org/wiki/Fortunately,_Unfortunately ]

 

[I recall, as I once had to research this, that there is no offence of cannibalism per se in English law – the crime would be either bringing about the death, or if the person had died naturally, a pretty minor Common Law offence of conspiring to prevent a decent and legal burial]

 

So the lessons for today are – if you are applying for an expert make sure you lay on with a trowel how close to indispensable this instruction is and if you are going to eat a cabin boy, wait till he dies of natural causes.      [Which further digresses me to Vic Reeves' sterling words of advice "If you DO get trapped in your flat...try NOT to get trapped in your flat"]

 

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