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“The purifying ordeal of skilled argument on the specific facts of a contested case”

 

 A discussion of the Court of Appeal decision in Re TG (A Child) 2013, and using that recherche  Victorian novelist style of chapter heading   “In which the Court of Appeal discuss physics, experts, fairness, and bouncy chairs, the art of advocacy is considered, our attention is drawn to the spectre of separate representation without conflict, and in which we say goodbye to a magnificent Judge”

 

The case can be found here:-   

 

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/5.html

 

 

[Note to self :- I have realised that I use that formulation far too much, so next time I will just say “Lo” and give the link]

 

 

This is a great case, and a judgment packed full of goodness and crunch for the family law geek – it is resonant of the old 1970s advertising jingle for “Topic”  – it has a hazelnut in every bite, so to speak.

 

 

Firstly, the issues are about a finding of fact, and interesting medical issues. Secondly, it involves a sexy science of biomechanical engineering, and all sorts of interesting theoretical experiments and whether they should be carried out in practice. Then we have the fact that the cost of proposed expert assessment is pretty eye-watering, then a dissection of where the judicial discretion is on allowing or refusing experts, and then a discussion of whether our system is inquisitorial or adversarial (and regular readers will know that I have certain views on that).  The Court of Appeal finish up with some words about parties with common interests being separately represented which have the chime of a broader warning than just in Appeal cases, and then say goodbye to Lord Justice Hedley who retired after delivering this judgment.

 

So much stuff, I am going to break up the chunks, with the proclamation:-

 

“Topic!”

 

 

  1. TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.
  1. Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.
  1. At this point I should interpose the father’s account of an incident which the parents believe may have caused some at least of TG’s injuries. I understand the local authority to point to what are said to be various discrepancies in the parents’ accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father’s account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:

“I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.

I can only assume that TG’s chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG’s head and chest area.”

  1. We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby’s comparatively low centre of gravity and the fact that the baby’s bottom is not very high off the floor the chair is stable when placed on the floor.
  1. At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.

 

 

The Appeal then hinged on the case management decisions of H H Judge Bellamy not to allow the father to instruct an expert biomechanical engineer, Dr Van Ee, who gave some evidence in the Al Alas Wray case.   [I find myself fascinated by how to pronounce the last element of Dr Van Ee’s name, but that’s by the by]

 

Father’s counsel was eventually able to persuade the trial judge to permit an interim report from Dr Van Ee, effectively setting out what a biomechanical engineer could bring to this particular table

 

 

  1. “Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage.”

 

  1. In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as “the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response”; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, ‘Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture’, and Van Ee, Raymond, Thibault, Hardy and Plunkett, ‘Child ATD Reconstruction of a Fatal Pediatric Fall,’ which he says “further refine head injury tolerance for skull fracture and intracranial trauma.” He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother’s suspicion that “MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG’s head … when MG tried to get off, the chair flipped forward 180 degrees”. He set out a ‘Suggested Plan for Further Analysis’ which I reproduce as an Appendix.
  1. As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:

“Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage.”

Dr Van Ee also contemplated experiments using a number of children of MG’s age “sitting down rambunctiously” to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.

 

Man, those sound like a great set of experiments  – getting a group of toddlers to sit down rambunctiously to see if they can tip a crash test dummy baby out of a bouncy chair…  

 

The next line may well suggest why the trial judge baulked at commissioning an expert based in America to do this experiment

 

Dr Van Ee ended his interim report with an estimate of the cost – between $18,500 and $22,000

 

 

[Even if the video footage of rambunctious toddlers attacking bouncy chairs could be sold to “You’ve been framed” that’s still a high cost left on the taxpayer]

 

 

 

Before the Court of Appeal started their systematic root and branch overview of the role of biomechanics in reported cases (which is in itself great, and hopefully I will get to later), they make this observation

 

The father’s application was supported by the mother. It was opposed by the local authority. The most important point made by Mr William Tyler for the local authority was that the tests which Dr Van Ee proposed to undertake amount to a reconstruction in a case where it is impossible to arrange for a meaningful reconstruction given that no-one – not even the father – witnessed the incident he described. The ‘reconstruction’ would therefore be based upon speculation as to what actually happened. At best, he submitted, biomechanical engineering evidence in this case would be of no more than tangential relevance, so to allow it would offend against the principle of proportionality

 

 

 

And this was pretty pivotal – as whilst a detailed explanation of an observed injury could be unpicked by a biomechanical engineer to see if the forces involved were sufficient and the mechanism itself physically possible, with no observation of the incident itself, all that could be done was a wide range of the possibilities.

 

 

  1. On the central issue Mr Tyler has three submissions. The first is that there is no witnessed incident to reconstruct. Even on the father’s account he did not witness it. Moreover, says Mr Tyler, the father’s account has varied over time. So the crucial question is: what is a biomechanical engineer here to recreate? What, he asks, is being tested? Whether a toddler could overturn the bouncy chair and in doing so create the requisite forces? If so, how: forwards, backwards, sideways? In one movement, or a number? And so on. Thus, even were biomechanics an established and tested scientific discipline with a track record of assisting the family courts, this is not, he says, a case in which any assistance could be gleaned. He also asks rhetorically, what is the purpose of biomechanical testing in relation to the rib fractures, as proposed by Dr Van Ee, when the radiological evidence dates them as having occurred earlier than the incident recounted by the father?
  1. Mr Tyler’s second submission is that in any event biomechanics is not yet established as being of any use in a case such as this. Properly read, he says, the authorities relied upon by Mr Vine do not establish what he seeks to derive from them. He concludes a careful analysis of the cases with the submission that, whilst it is certainly true that various courts have allowed the instruction of experts in the field of biomechanics (including, as we have seen, Dr Van Ee), it is rather less clear that any court has derived any significant assistance from such evidence. Mr Tyler accepts that in a case where there is a single, witnessed and reconstructable incident said to have caused the totality of the suspect injuries there may be a place for such expertise – a proposition which, he suggests, will probably require some degree of ‘case by case’ evaluation in the Family Division over time. But this, he says, is simply not such a case.
  1. Mr Tyler’s third submission is that the court, informed as it will be by the other five experts, has no need of such evidence or assistance as could be obtained by biomechanical reconstruction. This is not, he says, a particularly unusual case, whether as suggested by Mr Vine or otherwise. Given that there are already five other experts, the assertion that the refusal to allow the father to adduce evidence from Dr Van Ee would involve a breach of Article 6 is, he says, simply wrong. He points to the fact that, in contrast to Dr Anslow, Drs Shaw and Cartlidge and Professor Taylor have each, with varying degrees of emphasis, expressed scepticism as to the utility of biomechanical evidence. He ends with a floodgates argument: if biomechanical evidence is permitted in this case, where an unwitnessed incident is said to account for injuries some of which in any event pre-date the incident, then, he says, it is hard to see how such evidence could be disallowed in many, many routine care cases up and down the country.

 

 

 

But on the other side of the coin

 

Mr Vine asserts that the appeal raises a point of law of general importance, namely the admissibility of biomechanical evidence in suspected non-accidental head injury cases. He says that the question of the forces generated by the bouncy chair overturning will be a central issue; it is a question of physics and biomechanical engineering; and one outside the direct experience and expertise of the various medical experts already instructed. He points to the authorities I have referred to as showing, as he would have it, that the criminal division of the Court of Appeal has recognised the importance of biomechanical engineering in this context and that biomechanical evidence has been permitted in both the criminal and the family jurisdictions. He took us to R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [148], where Gage LJ referred to “the growing science of biomechanics” as having “had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries.”

 

 

And

  1. The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: see W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. But although the case management judge must be alert to the risks, the potential for such tragedies does not entitle a parent in care proceedings to an expert for the asking: see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, paras [15]-[18]. Nor does it relieve the case management judge of the duty to exercise his or her discretion in accordance with the various provisions of the Family Procedure Rules to which I have drawn attention.
  1. In every care case, as indeed in every case, the case management judge will need to assess and evaluate the degree of likelihood that a particular expert’s evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed. It is vital that the case management judge keeps an open mind when deciding whether or not to permit expert evidence. The judge will need to be alert to the risks posed by what may turn out to be ‘bad science’. On the other hand, the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case: consider, for example, what happened in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378.
  1. In this connection the case management judge will also need to bear in mind what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10]:

“there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.”

My Lord elaborated the point in an important passage (para [19]) which merits quotation in full:

“I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children) [2012] EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.

  1. As against all this, we must never forgot the point made by Dame Elizabeth Butler-Sloss P in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]:

“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 will throw light into corners that are at present dark.”

 

 

 

 

[I suspect that these passages might well be snipped into submissions and skeletons on applications for assessments of a medical nature over the next few months – they are pretty impressive arguments]

 

So, a lot potentially at stake – on the one hand, risks of injustice which could be cleared up by a biomechanical engineer, on the other, the risk of floodgates being opened  (if you need a biomechanical engineer in this case, why not in every case of unexplained physical injury?)

 

“Topic!”

 

The Court of Appeal remind themselves also that the bar for expert assessments is about to be raised, though they were deciding on the previous test. [And they confirm that judicially speaking, the bar has been significantly raised – my underlining]

 

  1. (3) Third, the court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Rule 25.1 provides that:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.”

  1. Thus the Family Procedure Rules as they are today and as they were when Judge Bellamy had to decide what was to happen in the present case. But they are very shortly to be modified. With effect from 31 January 2013 the amendments made by The Family Procedure (Amendment) (No 5) Rules 2012 come into force. Rule 1.4(2) is re-cast to provide (paragraph (e)) that active case management includes “controlling the use of expert evidence.” Rule 25.4(1) is also re-cast, to provide that:

“In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.”

Rule 25.1 is significantly amended, to provide that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

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.”

 

 

“Topic!”

 

 

The consideration of how useful biomechanical engineering is as a discipline to the family Courts is a good one. It is all set out in paragraphs 39-44, and if you are seeking such an expert, or opposing it, that is a good place to start.

 

If you want something more pithy, here it is:-

 

44. During the course of argument in the present case, Hedley J asked Mr Vine whether he was aware of any case, criminal or family, in which biomechanical evidence had been found to be of any significant assistance to the court. My Lord added that he was not aware of any such case. No such case was identified at the Bar and we are not aware of one.

 

 

That was clearly a moment when poor Mr Vine for the father felt this case had probably slipped away from him.

 

 

“Topic!”

 

 

The Court stressed that they were not making any decisions as to whether the field of biomechanical engineering was admissible evidence, and it was accepted by all that it was – the issue was whether it was ‘reasonably required’ on the test as it was then, and whether article 6 could be construed as meaning that father was entitled to call the evidence that he was advised was needed to run his case.

 

 

  1. At the outset I should clear two matters out of the way. Mr Vine, as we have seen, suggests that the present appeal raises a point of law of general importance, namely, as he identifies it, the admissibility of biomechanical evidence. With all respect to Mr Vine, it raises no such question. The local authority does not challenge the admissibility of Dr Van Ee’s evidence, any more than it challenges his expert credentials. And in any event the question of admissibility is not determinative, because rule 22.1(2) empowers the court to exclude evidence that would otherwise be admissible. The issue before Judge Bellamy was rather, in accordance with rule 25.1, whether Dr Van Ee’s evidence was “reasonably required” – and it was to that question that Mr Tyler appropriately directed his submissions both here and below.
  1. Mr Vine also mounted an argument based on Article 6. Plainly, Article 6 is engaged, as are the principles set out in the two Strasbourg authorities to which he took us. But this does not, in my judgment, take him anywhere. The relevant statutory scheme, including the relevant provisions of the Family Procedure Rules, is Convention compliant. No-one has suggested the contrary. And a case management judge who properly applies the statutory scheme and the Rules will be acting in a Convention compliant way. There is nothing in the Strasbourg jurisprudence to entitle a litigant to demand that he be permitted to call whatever evidence he wishes. So far as material for present purposes what the Convention requires is a ‘full merits’ investigation by a court and a procedure which ‘taken as a whole’ is fair. The fact finding hearing will involve a ‘full merits’ investigation by the High Court. The refusal to permit the father to adduce evidence from Dr Van Ee involves no unfairness and breaches neither of the principles upon which Mr Vine relies.

 

 

“Topic!”

 

 

So, on the issue of whether biomechanical engineering had something to offer in this case, the Court of Appeal concluded that it did not. 

 

What I love here is that we start with science and quite carefully argued science

 

  1. In the present case the hypothesis is that the bouncy chair tipped over forwards, rotating, with TG strapped in, about the fulcrum represented by the two points of the V at floor level. Although no doubt the actual analysis and calculations are more complex, the basic principles of the mathematics and physics which are here engaged will be familiar to many. Simple geometry demonstrates that on this hypothesis TG’s head will have travelled through the arc of a circle, the radius of which is the distance between his head and the points of the V. The first part of the arc is that part of the trajectory as the chair is tipping forwards until the head is vertically above the fulcrum; the second part of the arc is that part of the trajectory where the head rotates forwards through 90º from the vertical until it hits the floor.
  1. It will be appreciated that in a case such as this there are two questions of particular importance. (1) What is the amount of force required to pull (or push) the bouncy chair forwards until it reaches the tipping point at which, if unsupported, it falls forward under the force of gravity until the baby’s head hits the floor? Alternatively, on the mother’s hypothesis, what is the amount of force required to pull the chair backwards as far as it will go before it is released, springs forwards and (assuming this is even possible) reaches the tipping point? (2) What are the forces exerted on the baby’s head and upper body as it hits the floor? In principle, one would expect well known principles of Newtonian physics to be capable of providing at least approximately accurate answers to both these questions once one has fed into the relevant calculations factors such as the radius of the notional circle, the baby’s weight and the location of the baby’s centre of gravity.
  1. But the answer to the second question will depend upon a number of other factors: What is the rotational speed of the baby’s head as it passes the tipping point? This will in turn depend upon the mechanism by which the baby’s head reached that point. On the mother’s hypothesis, the bouncy chair will have acted as a spring, projecting TG forward, potentially at some speed, as MG released his weight from behind. If, on the other hand, the bouncy chair was pulled forwards from the front, then the rotational speed at the tipping point may have been less, possibly much less or even zero. What, if any, forces, other than gravity, were operating once the baby’s head had passed the tipping point? This again will depend upon the mechanism. On the mother’s hypothesis the only forces would seem to be (i) the forces reflecting the rotational speed as TG’s head passed the tipping point and (ii) gravity. If, on the other hand, the bouncy chair was pulled forwards from the front, then there may have been additional forces, either pulling the baby forwards and downwards or, possibly, working in the other direction to restrain its free fall.

 

 

And then the President returns to the non-maths planet most people live on

 

Now one does not, I think, need the expertise of a biomechanical engineer to demonstrate what every parent will know, that an eleven-day old baby strapped into a bouncy chair is simply incapable of generating the forces required to tip the chair over

 

 

And that if what one is instead doing is trying to establish whether the rambunctious toddler, MG, could have tipped the chair over whilst poor TG was in it…

 

  1. entirely accept that a biomechanical engineer will, in principle, be able to obtain values, whether by theoretical calculations and/or by experimental measurements, and in relation to a variety of postulated factual scenarios, for (a) the forces required to tip the bouncy chair over with TG in it (what I will call the ‘tipping forces’) and (b) the forces applied to TG as his body and head hit the floor (what I will call the ‘impact forces’). But that information of itself is of very limited value in the present case. There are three problems.
  1. First, we simply do not know, even on the father’s case, what actually happened. Was the bouncy chair pulled from in front or pushed from behind? Or was it, as the mother hypothesises, pulled back and released like a spring? Was MG’s weight part of the load on the bouncy chair as TG hit the ground, and if so where about on the bouncy chair was his weight operating? Did MG land on top of TG? These different scenarios (and they are not necessarily an exhaustive list) are likely to provide a range of very different values for both the tipping forces and the impact forces. Second, and in the nature of things, we do not know whether MG was capable of exerting the required tipping forces. Dr Van Ee proposes practical experiments using toddlers of the same age, but such experiments, even if feasible, are unlikely to provide compelling answers, given the number of different scenarios that would have to be tested and, not least, the near impossibility of comparing the actual physical strength and other characteristics of the experimental 13-month old subjects with the characteristics at that age of the now 20-month old MG. Third, and even assuming all these difficulties have been overcome, there remains the fundamental problem that, in the nature of things, we have only a very imperfect understanding of how a baby’s body works and, in particular, of how much force is required to produce a particular form of injury in a baby. Let us assume that Dr Van Ee is able to produce values for the impact forces on different scenarios of, let us say, x, y and z. How do we know whether x, y, or z is sufficient to cause any of TG’s injuries? Mr Vine suggested that the answer is to be found in the ‘risk probability curve’ referred to by Dr Van Ee, but he did not explain why, nor does Dr Van Ee in his interim report. Indeed, we were not even shown the curve or the paper in which it was published.
  1. In these circumstances it seems to me that the prospect of Dr Van Ee’s work producing any useful evidence in this particular case is sufficiently slight as to fall well short of the “reasonably required” test. The fundamental problem, as Mr Tyler correctly identifies it, is that there is no witnessed incident to reconstruct. So, as he puts it, what is Dr Van Ee to recreate? The reality is that we are, factually, too far into the realm of speculation in this case for biomechanical engineering to be capable of providing the court with any significant assistance

 

 

So, in this case, biomechanical engineering had nothing of value to add, and the trial judge had been within his judicial discretion to refuse to commission the report.

 

What about cases generally? Does biomechanical engineering have something to offer generally?  Here the President, in stylish language to be sure, gives an answer which is pretty similar to that of a parent when asked by a six year old “Mum, can we have a rabbit?”

 

 

That leaves the more general question of whether, in other cases, biomechanical evidence might in future satisfy the “necessary” test. I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts. As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance. But I emphasise the qualifying words I have just used. We can only operate on the best and most up-to-date science available to us today. But we must always bear in mind that tomorrow may bring about a transformation of scientific knowledge so that, to use Dame Elizabeth Butler-Sloss P’s words, new scientific research will throw light into corners that are at present dark. Whether and if so when this will come about in relation to this particular scientific discipline we cannot say. That is why, as I have already emphasised, case management judges must always keep an open mind when deciding whether or not to permit expert evidence particularly where, as here, the science is both complex and developing.

 

 

Translation   “We’ll see”

 

 

“Topic!”

 

 

The Court then go on to talk about adversarial v inquisitorial, and produce the lovely line which titled this piece.

 

  1. It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish ‘threshold’ they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probability that those events did indeed happen. And if it cannot do so, then its case will fail and must be dismissed.
  1. The process of determining whether the local authority has or has not proved its case on threshold takes place under the vigilant eye of the judge. But in our adversarial system the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them. It is over 600 years since Hankford J is reported as having said in 1409 (YB 11 Hen 4, Mich fo 37) that:

“Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known].”

In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.

  1. In an arresting phrase, Megarry J (to whom I am indebted for the reference to Hankford J), once referred to the aid afforded to the judge by “the purifying ordeal of skilled argument on the specific facts of a contested case”: Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16. The context there was very different, but the same goes for cases in the family courts. Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. As Wall LJ said in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

 

 

Translation :- “hooray, lawyers are great!”

 

 

But we move on

 

  1. Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered. Every £100 of public money spent paying for the separate representation of litigants in family cases who do not require to be separately represented is £100 unavailable to pay for representation which is required. If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration. That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.
  1. Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy’s order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father’s appeal and the children’s guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense. Included amongst the directions I gave on 14 December 2012 was this:

“The court will be much assisted by submissions from the children’s guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice.”

Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party’s stance. Was this not such a case?

  1. This is not a matter which we raise for the first time. Almost twenty years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords made some very pointed comments which seem to have had little effect. More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

“We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.”

He went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

  1. That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.
  1. In fairness to those who appeared before us I should make clear that we did not explore this issue at the hearing. Accordingly, it would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position.

 

 

Translation :- “What are you doing here? Aren’t you saying the same as that bloke next to you?”

 

The passage I have underlined is something which has potential consequences for all cases, not just appeal hearings.

 

I do recall, quite vividly, when the Protocol came out, a fleeting moment of crackdown, where tribunals were quizzing advocates on why the mother and father were separately represented when they sought to care for the child together, and the view being that this would be the exception rather than the norm.

 

But this was pretty quickly resolved, advocates worked out that there was a formula of words, along the lines of “potential for conflict to arise at a later stage, and the need for parents to have continuity and for them to have independent advice”  was enough to defuse that, and keep two of them in each case.   

 

[There are, I know, very very many cases where there is genuine potential for conflict, and it is perfectly right and proper for mother and father to be separately represented, but I do also go to many final hearings where you could not put a cigarette paper between the case of the mother and the father, yet they have separate counsel making the same points for each of them, and handing up two forms, resulting in due course in two bills being paid from the public purse. . The Court of Appeal are dropping a pretty heavy hint here that in a time of austerity, that might have to be addressed, and probably that if it is not self-policed, the consequences will be financial squeezes in other areas affecting the professionals]

 

 

All in all a fascinating judgment, and as it is effectively the President’s first, and Lord Justice Hedley’s last, the two of them being very stylish constructors of judgments, I think it is well worth a read.

 

 

[And if you’re my age, you have been wanting throughout this piece to hear the Topic jingle, so I will put you out of your misery.  Next week,  Ordinary Residence and “Nuts, Wh-oh-oh-le  Hazelnuts, Cadbury’s take them and they cover them with chocolate!”   ]

 

 

 

http://www.youtube.com/watch?v=ksxdrMPUAwk

 

Is more Hedley than the Mail *

My ongoing and ever growing brain-crush on the Honourable Mr Justice Hedley continues apace, in K (Children) 2012   – which can be found here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97030

*(apologies for the title, the story has nothing whatsoever to do with the Daily Mail)

This case is not particularly remarkable for its grappling with complex legal issues or because it resolves a matter of grave national import. The facts of the case are incredibly sad and the matters of huge importance to the family and those working with them, but the case is of interest and significance for the way that the Judge approached matters.  I hope that in years from now, we will see this case as one of those times when fish climbed out of the sea with stubby fins onto the land and gulped pure clean air.  (Probably not, but I am, despite eighteen years in child protection law, an incurable optimist and a hopeless romantic)

I would urge you to read these short extracts, but effectively, this is exactly what I had in mind when I wrote about an inquisitorial approach (actually well beyond, in the right direction).

The Judge was dealing with a case with three children with profound special needs as a result of their disabilities, and the dispute that the family were having with the Local Authority about services for the children; culminating in the issue of care proceedings and there being considerable conflict in the papers as to where the children should live and whether the threshold was met. It could very easily have been approached as a classic adversarial case and the parties spending two weeks in the High Court tearing one another to pieces and seeing who was limping least at the conclusion of the case.

Instead, a very different approach was adopted.

16. Because all this seemed to me both unusual and difficult, I have gone about its resolution in an unusual manner, albeit with the consent throughout of the parties.  The fundamental purpose has been to see if a way forward can be found in partnership, which, as I have said, must happen indefinitely into the future, without the need for a damaging trial over the question of whether the threshold criteria have been satisfied.  I regarded this approach as all the more urgent in this case because of the deeply conflictual tone of almost all the statements, not just of the parties towards each other, but of the Local Authority towards some experts and, of course, a letter from Simon suggesting, unsurprisingly no doubt, that he has been drawn up to his ears into this dispute.  It is the fact that some two years have passed since a Local Authority social worker was admitted to the house and it is the fact that, until this hearing began, the parents had not spoken to the current social work team.   It was a matter of relief that on one matter all parties were agreed.  This could not go on and change had to occur.  It is also worthy of note that, as a matter of fact, the combined work of the parents and the professionals to date has in fact succeeded in promoting and safeguarding the welfare of the children in very substantial part.  Despite the ongoing conflict with the family, the Local Authority social workers have managed to negotiate substantial investment in the family, including procuring the two places at H, and there is no reason to doubt that the parents have secured the children’s emotional welfare throughout.

17. I have pursued this aim by making my provisional views about the case and my suggested possible route to solution much more readily available than would necessarily be right were I hearing an arm’s length trial.  I have allowed considerable amounts of court time over the last seven days to be used outside the court room.  From those discussions have emerged four agreements: one between the Local Authority and the parents, one between H and the parents, and a tri-partite agreement between them all, and a further agreement between the Local Authority, the parents and the proposed coordinator or case manager in this case.  There are two issues of disagreement remaining and all agree that they can be considered in this judgment and then acted on by the parties.

18. Moreover, on the second day of the hearing we adjourned to H, who kindly made their boardroom available to us.  During the course of discussions, the parents met constructively with the social work team under the aegis of the guardian, though of course this must only be the start of what needs to be a regular pattern of meetings.  I had a chance to see the premises and speak informally with the general manager and the chief executive.  I also had the chance to see the family together, of which more in a moment.  At the request of the parties, I also went to the special school (F) attended by Alec, Alice and now Zac, and spoke informally with the headteacher and a member of the medical staff.  I wish to record my gratitude both to H and F for their tolerant hospitality, and I have written personally to the general manager and the headteacher to express that.  In a case in which, as I have said, context is everything, I found this second day particularly valuable.  In short, this case, being unique, has received unique treatment.

And here :-

43. I greatly appreciate the effort of all – family, professionals, Local Authority, H, guardian, as well as the legal teams who have given clear advice and have been willing to adopt both an unconventional and a non-confrontational approach, all of which have served to secure this end.  I want only finally to say this.  Whatever the disputes of the past, this remains an intact family in which the best interests of the children are paramount.  I hope this case has given the parents the confidence to continue the task that compels the admiration of all.  I hope, too, that in that renewed confidence they will feel less anxious, will feel that they do not always need to be right on everything or in control of every issue, but will learn to trust others and to respect and consider contrary views; in short, that all will come to recognise that that which will unite this family, and H and the Local Authority in the future, is not the written agreements, important though they are, but their shared commitment to promoting the welfare of these children, especially Alec, Alice and Zac, who of course have nowhere else to turn.

Now, all of this may have come in the context of a unique family  (I nearly said very unique, but of course that concept is a nonsense), and I note that the school provision for the children is costing £246,000 in 2012 and will increase year by year; and that in those circumstances one can understand that there is more willingness to be flexible and supple and try a different approach, but I really would like to see much more of this.

At the risk of getting into private law, which is no longer my cup of tea, I have thought for some years that an approach in private law where the Judge indicates really early on what a desirable final outcome for the children would be  [that they see both parents, spend lots of time with both, know that each parent loves them very much and that whilst they don’t love each other any more, that doesn’t stop mum being mum, and dad being dad, that new relationships for mum or dad don’t change that at all]  would be, and directs the parties as to how to get from this awful starting point to that desirable finishing point, is worth considering…. sorry to keep people waiting for that unexciting ending…

Nobody expects the English (and Welsh) Inquisition

 

 

(their chief weapons are delay, their devasting deployment of working parties and committees, and more delay)

 

 

This post arises from Mr Justice Ryder’s fourth tranche of Modernisation updates.

 

You can see an excellent analysis of this update over at Family Lore here:-

 

http://www.familylore.co.uk/2012/04/family-justice-modernisation-programme.html

 

 

and the actual source document is here :-

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/family_newsletter4.pdf

 

 

The bit that has really struck a chord with me is the recognition that what we have at present is not the “inquisitorial” system that it is often labelled, but at best “quasi-inquisitorial” and in reality “adversarial”

 

This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the

court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly.

 

Recently, every time anyone has said to me that we have an inquisitorial system and not an adversarial one, my response has been “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”

 

Short of ducking-stools for witnesses, I’m struggling with a suggestion to make our process more adversarial.

 

[Not that this is necessarily de facto wrong – you might well argue that when the State and Courts are deciding what should happen inside a family, that this is just as worthy of an adversarial system as crime, or personal injury; but rather that the illusion of it being an inquisitorial system is a nonsense. If it is a good thing to have an adversarial system in family law, then let’s say so and be transparent about it, but if we think an inquisitorial system is the right way to do it, then let’s genuinely have one]

 

 

So, how could we make the system an inquisitorial one?

 

The Family Drug and Alcohol Court is a reasonable model – though it takes longer and no doubt costs more, the outcomes – in terms of keeping families together and having rehabilitations that work, are far superior to other Courts.

 

My imaginary version of an inquisitorial system would work like this (and I don’t claim it is without flaws) :-

 

 

  1. The Local Authority file their threshold document, outlining what has gone wrong in the past, and also outline the areas that they would want to change in the future. Where there are practical steps that the parent could take to address the concerns, they should be set out.
  2. The parents with the assistance of their representatives produce a response to threshold, outlining what is accepted and what is not, and outlining where they accept a need to change, and whether they will take the practical steps put forward.
  3. If there is agreement, the heads of that agreement will be approved by a Judge, who will make it plain that progress in relation to the areas of concern will be necessary by the time the 26 week period is up, and that the parents will be measured against what they do  (moving away from the psychological bent of what a parent is theoretically capable of with the right support and towards what they actually do]
  4. If there is a dispute, the Court will consider matters and give a judgment that sets out clearly where the LA concerns are justified, and where they are not, and what has to be done between now and the final hearing, by all concerned.

 

[In essence, this would be similar to the written agreement that is attempted at Letter Before Action stage, but this time, it would have the force of the Court behind it.  If the Court rule that the level of drinking these parents do isn’t problematic, then we knock that issue on the head and waste no further time on it unless matters deteriorate. If the Court feels that these parents would need to stop using heroin in order to parent to a good enough standard, then the parents can hear that from the Court, rather than from the social worker they’ve no time for…]

 

  1. It would be the Judge, at that stage, who would decide what expert evidence they require to allow a fair outcome in the case and what information needs to be gathered. Of course, representations can be made, to ensure that the Judge has considered matters from a variety of perspectives, but rather than the Court being asked to approve the instruction of experts, the Court drive the process and decide what expert evidence THEY need to make the right decision. And they set the questions  (again, with some input to ensure that if there’s a critical issue that might be overlooked it is drawn to their attention, but getting away from the Letter of Instruction being a document produced by committee with the questions being pulled this way and that so that they end up being sprawling, voluminous and anodyne, and instead, focus on the questions that the Judge needs the expert to give guidance on)
  2. The Issue Resolution Hearing becomes the sort of hearing we were promised when the PLO launched, conducted by a Judge who has (a) judicial continuity (b) time to consider the papers and embrace the issues, and with advocates who are prepared to set out what issues are agreed and which are controversial, and what the proportionate way of dealing with the controversial issues are.
  3. At the final hearing, if less than fifty per cent of the questions asked of the professional witnesses don’t come from the Judge, something has gone wrong.

 

 

Now, of course, you can’t do any of that whilst Judges have the time pressures that they currently have. Anyone who comes to family courts will have noticed how the lists have swollen over the years, and tackling a directions day must now be something akin to trench warfare for a family judge – just getting through the day is a triumph, never mind the overarching strategic objectives.

 

It might well be that this sort of inquisitorial approach would free up space at the other end of the spectrum – having Judges spend far less time on cases where no stone is left unturned, no bad point left untaken, and no contact record unthumbed.  But I suspect that those savings would take time to come through, and that poor Judges would find themselves in an unenviable interlocutory position of having to be continuing trench warfare in the old style cases and having to be Field-Marshal Montgomery in the new style.

 

As a sidebar, here’s a little theory – I would wager that an astronomically greater proportion of collective brainpower and prep (in terms of Judges, solicitors, counsel and professionals) goes into each minute of a final hearing compared to a Case Management Conference, but if you put that same degree of focus and thought into a CMC, you’d reap substantial rewards at the end of the case, by getting things right at the beginning.

 

And of course, the listings stick the CMCs right in the middle of that trench warfare directions day, when a Judge is listening to the fourteenth set of people who have ‘helpfully agreed some directions for your approval’  and with a portion of their mind turning to the next nine cases that are waiting outside…

 

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