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I was reading a case today – notably this one 

L (Children) [2011] EWCA Civ 1705

 in which Lord Justice MacFarlane manages to squeeze more elegance into one paragraph than most mortals can dream of  – thus

“In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge’s detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?” 

The appeal is considering some very specialist medical evidence, centring around whether two children who had died did so of unnatural causes, or of some medical condition; and what impact that had on the likelihood, or otherwise of future harm to the siblings. More than that, however, the Court had to wrestle with the hypothesis that the cause of the children’s deaths might be as yet unknown to medical science, and thus unquantifiable. The experts were, no doubt through very careful, appropriate and skilful questioning, drawn towards placing some percentage chance on that possibility – two felt that the chance of the cause being non-accidental was around 90%, and one felt that it was no higher than 70%.  Both, of course, result in it being open to a Judge to make a finding that it was more likely than not that the deaths had been caused non-accidentally and go on to derive a likelihood of harm to the younger children.

But it struck me, that here were doctors, extraordinarily eminent in their field and capabilities – with demonstrable, verifiable and repeatable empirical evidence – they had been able to conduct tests and establish the presence of a particular gene variant; yet prepared to tell a Court that effectively their science only goes so far, and that there are possibilities that we do not yet know of, that in years to come might very well dramatically tip those percentages given above.

It reminded me of RE R (A CHILD) sub nom R (CARE PROCEEDINGS: CAUSATION) (2011) [2011] EWHC 1715 (Fam)       Sadly, I don’t have a link on that one – but the facts are fascinating – a serious head injury, coupled with a leg fracture. The Court grappled with the medical evidence, and one medic in particular outlined to the Court that there was a school of thought in relation to head injuries amongst medical specialists which simply accepted that at present, we just don’t know enough to be confidently certain and making bold diagnosis about causation of injuries.

Again, that’s an expert who has the basis of science and empirical evidence behind them. There are scans and tests, and results, and what one expert sees on the scans, another would see (though they might come to different conclusions about the cause, they’d agree on the nature of the injury)   And yet, within care proceedings, one never sees that with psychologists – a Socratic acceptance that we don’t yet know everything, and we are making our best informed guess at it, based on the information and techniques that usually work.  A key difference for me, is that the medical experts are looking at something which has happened, and can look carefully at the evidence that supports such a diagnosis, whereas the psychologists are taking something as generally unpredictable as human behaviour, and what someone might do in six months, a year, and making predictions about the future for that person – notwithstanding that the sort of person who often goes to see a psychologist in care proceedings is doing so because they’ve lived a life doing non-rational and unpredictable things.

I personally think that the doctors who spoke up in those hearings and said effectively “It would be lovely to be able to tell you that I’m SURE that this was an accident, or not an accident, or organic in cause, but all I can be SURE of, is that we can’t be SURE”    – my more cynical youth would have speculated that they were making a name for themselves as helpful people to call if you wanted a counter-opinion, but I think with the benefit of age and experience, that they were just calling it truthfully.

If the people who are telling you, with tests and X-rays, and chemical analysis, that they can’t be certain of what happened in the past; how can we put so much stock in the people who tell us with no hard science that they’re sure of what is going to happen for this child in the future?

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