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Tag Archives: non-accidental injury

Reversing the burden of proof – injury to a child

 

There have been a few reported cases where the higher Courts have said or hinted that a fairly traditional medical formulation “that in the absence of the parent providing a benign explanation, this injury was caused deliberately” is a reversal of the burden of proof and not acceptable in law.

 

The decision of the Court of Appeal in Re M (a Child) 2012 comes out very badly and explicitly says it, and the decision is exactly on this point, and for that reason I think it is the best authority for the principle.

 

[In fact, looking at this again, I think this is the exact very same case that established the point that I had come across in summaries, and we have waited 2 years for the actual transcript of judgment. That’s pretty shocking, given the importance of it as a principle for other cases. I had momentarily forgotten that we were STILL waiting for this judgment, because the original summaries came out 2 years ago.   This might be a big deal, because if it had been reported earlier other families might have made use of the principle]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1580.html

 

The appeal begins with Ward LJ identifying that as ever, there was not an order produced following the finding of fact which was strictly capable of being appealed

 

 

As is so typical with fact-finding matters coming from the Family Division, no order has been drawn which is strictly capable of being appealed, because nobody bothers to formulate preliminary issues which the judge can then decide and encapsulate in an order which is the proper subject of the appeal. Instead, what frequently happens, and has happened, the order simply recites:

 

 

“And upon HHJ Hammerton handing down a written judgment following a fact finding hearing, in which the court found that the child had suffered non-accidental injuries and that the parents are both possible perpetrators of those injuries

The Court Orders…”

 

And then there were a series of directions being made. But I have said that before; nobody takes any notice. The rantings of an old man are simply passing into the ether

 

 

People do always seem to forget this, and Ward LJ is right to remind practitioners. What is appealed is the ORDER, not the judgment. The thrust and focus of the appeal might well be on why the analysis of the judgment shows that the Judge was wrong to make that order (or in these post Re B-S days does not show sufficiently clearly why the Judge was RIGHT to make the order, which itself is sufficient to make the order wrong)

 

There ought to be a draft order produced to the Judge (ideally one prepared by the LA at the outset of the hearing, but probably adjusted post judgment to reflect the findings that were made) setting out each of the discrete issues on which the Court was asked to make a determination and the determination that was reached. The findings need to be on the face of an order   (or more accurately in our new standard template order regime somewhere on page 6 of the order) not just tucked away in a judgment.

 

 

Anyway, on to the real matter. This was a case involving a total of nine bruises to a child, the child being around eight weeks old at the time.

 

Ward LJ summarises the basic legal principles in the crispest way I have ever seen it done. He should patent this.

 

I have no intention of elaborating on the law, because the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed. Whilst it is necessary to establish that the injuries are, as has been described in this case, non-accidental, it is not necessary to identify the perpetrator, and it is permissible for the court to say that those who are within the pool of possible perpetrators remain possible perpetrators, and the local authority must then manage the case as best it can in the light of those findings.

 

 

The Court of Appeal summarise the medical evidence given by two experts in the case

 

 

  1. The injuries to the left forearm were really divided into three. There was, firstly, the circumferential mark around nearly all of the forearm, with two small, almost parallel marks perpendicular to it. Dr Essex said of that mark in his written report that it was:

 

 

“…consistent with some restriction or pressure effect from something causing pressure on the skin of the forearm. I cannot explain the two additional marks perpendicular to the circumferential mark. The linear and angular nature of the marks on the forearm looks like the effect of something ‘mechanical’. In other words, an object having pressed on the skin.” (His emphasis)

 

In an addendum to the report, he spoke of the child coming into contact with a firm/hard inanimate object. I interpose by stating the obvious: these are not marks consistent with finger pressure or the use of the hand, save perhaps for holding the object pressed against the child’s left arm.

 

 

  1. The second category of injury to the left forearm was the red, circular bruise below the elbow. Dr Essex did not know how that was caused. The third injury was the bruise to the left wrist, which again Dr Essex could not explain, save that he observed it was a very unusual place for a baby of that age to get a bruise. The judge recorded in paragraph 34 that Dr Rouse agreed with Dr Essex about the mark on the left forearm. He, too, was unable to explain the marks. He agreed they seemed to have some mechanical cause. Dr Rouse stressed these were an imprint type of injury. He agreed it was impossible to say how the bruise below the elbow had been caused. He agreed the bruise on the inside of the left wrist was a very unusual place for a bruise given that it is a naturally protected area, and that the underlying tissues are tightly bound down with little space for a bruise to develop. The judge noted that there was agreement in respect of the linear bruises to the right arm, and Dr Rouse emphasised that, where the general impact is with a body, a round or oval-shaped bruise will develop; where there is a pronounced V-shape, it implies something with an angled edge which must be mechanical, in other words man-made. In respect of the bruise on the inside of the left thigh, both experts agreed this was an unusual case for a bruise. Dr Rouse regarded it as a different type of bruise to the ones on the arm; he described it as being a more diffuse injury. He described it as having a pronounced rhomboidal outline; the straight line suggested more of an impact which is associated with a traditional bruise.

 

 10. Various explanations were proffered for those bruises, and the judge went through each and every one of them. First, it was suggested that M’s arms may have been trapped under the straps of the baby seat; for reasons given, that was rejected. It was suggested that swaddling may have been responsible; that, too, did not find favour. Although Dr Rouse felt that possibly the bars of the cot may have been responsible, Dr Essex did not. Both dismissed the baby bath as the object which could have caused the injury; it had been suggested that the baby had been thrashing around in the bath, which was highly unlikely. There was a suggestion that perhaps the family dog had jumped on poor little M, but nothing in the injuries was compatible with that. The judge’s conclusion was that, insofar as Dr Essex and Dr Rouse held different views, she preferred the evidence of Dr Essex. The possibility of some cotton thread explaining the injury around the child’s arm was raised; Dr Essex thought it unlikely and he did not agree about the cot being a possible instrument for harm.

 

 

11 So the judge came to the conclusion, which she expressed in paragraph 51 in these terms:

 

 

“Apart from the two issues identified above [that is the cotton thread and the cot], there was a consensus between the experts. In their view the injuries were unexplained. Dr Rouse described the injuries as being unusual for non-accidental injury [but] he confirmed to counsel for the guardian that they were unusual for accidental injuries.”

 

The judge recited Dr Essex’s view when asked for his overall conclusion. She said at paragraph 56:

 

 

“He said he reached this having looked at ‘all reasonable and unreasonable possibilities and explanations. It was against the overall picture, the age of the child, the number of injuries and the site of the injuries. Putting all these together he could not find a benign explanation.’ I found that his opinion was a considered opinion. I reject the submission that his conclusion was predicated on the fact that if there was no explanation, the injury must be non accidental.

 

57. The suggestion that Dr Essex has overstepped the line which demarcates the field of responsibility of the expert from that of the court is not in my judgment made out. Dr Essex was asked in specific terms whether the marks shown in the photographs are likely to be accidental or non accidental. He provided an answer that in his professional opinion they were non accidental.

58. I did not form the impression that there was a great difference between the evidence of the experts, it seems to me there was broad consensus. I am not persuaded that the evidence of Dr Essex was in any way unreliable, to the contrary I found his evidence compelling.”

 

 

 

[The underlining here is mine for emphasis – you will note that the trial Judge specifically considered whether Dr Essex had reversed the burden of proof in his evidence and concluded that he had not. This had obviously been an argument run by parents counsel at the time, and the trap had been set ]

 

 

Having then heard the parents evidence, the Judge reached the following conclusions about the injuries (again, underlining is mine for emphasis)

 

“86. Weighing all the evidence in the balance I return to the fact that the medical evidence is clear, the distribution and number of bruises could not have been caused by the baby himself and there was no medical explanation. It was submitted that unless the doctors can provide an explanation of the precise mechanism of injury, it is impermissible to infer that the injury must have been non accidental. I find that statement to be too sweeping. The doctors are agreed that pressure has been applied to the skin which has been sufficient to cause bruising. Whilst these are described by Dr Rouse as being towards the lower end of the scale for the amount of force used, the marks are to be distinguished from the superficial marks caused by, for example, the elasticated edge of a sock. The marks were described as vivid red; they remained clearly visible for 3-4 days. Further and importantly, the marks were unusual in their number, in their distribution and position.

 

87. In the face of medical evidence where there is no substantive disagreement between the experts, this is a case where I am satisfied that the injuries sustained by M were non accidental. I am not persuaded by the evidence of the parents. The impression I gained was that I was not being told the entire truth as to the events of Friday evening and Saturday morning.

 88. In terms of identifying the perpetrator I am unable to do so. There is evidence that the mother was the principal carer for M. She did the lion’s share of the tasks of feeding and changing and clearly took the lead in decision making. The father did some of the tasks, he would make up bottles and comfort M while bottles were being made up. He was responsible for swaddling. It was clearly the mother’s decision to delay taking M to the doctor until the Monday, having said that it was she who was proactive in asking questions and significantly providing photographs which showed the bruises as being more serious than their presentation on Monday. During the material time frame when the injury must have been sustained, both parents were present in the home. Save for the period during Saturday morning when M was downstairs in his baby chair, he was in the bedroom with his parents. The father emphasised there were no carpets upstairs and accordingly it was possible to hear what was happening downstairs. This is a case where if one parent injured M the other parent would be aware. Both deny there was any incident. In the circumstances both must remain in the pool of potential perpetrators.”

 

 

This is what the Court of Appeal had to say about the Judge’s reasoning (Ms Scriven QC was representing the Local Authority)

 

 

14…The harm must be attributable to the care given to the child not being what it would be reasonable to expect a parent to him. That is the language of section 31 of the Children Act. So Ms Scriven mounts a very persuasive argument that the constellation of injury, and site of the injury, the mechanism for the injury, and the narrow timeframe of perhaps up to 18 hours or less during which these injuries were inflicted, all lead ineluctably to the conclusion that this was non-accidental injury.

 

 

15. The elements I have outlined do give establish a case to answer that the care given to this baby was not reasonable care, but outside the ordinary course of events, and that justified the inference that the threshold had been crossed unless the parents could discharge the evidential burden which would have shifted to them. It was a persuasive argument, but the difficulty I find in accepting it is that that was not the case the court was required to consider. The judge was not considering, as might have been the case, whether there was some general failure to provide proper care. She was being invited to find, and she did find, that these injuries were deliberately inflicted by one or other, or both, of the parents.

 

 

16. On the medical evidence, at least some of those marks were imprint or pressure marks made by some inanimate object coming into contact with the child’s arm. But what object, or even what sort of object, remains unexplained. Also unexplained is how that pressure was exerted. Was it a hard jab, causing the momentary infliction of pain, which might have caused the baby to cry, or was it more sustained and consistent pressure, which may not have been as painful to M? The truth, as acknowledged by the experts, is that we simply do not know. This is not a case like a child with a broken leg, or a shaken baby, or a cigarette burn, or finger pressure marks. We simply do not know what happened to M and we do not know how it happened. The conclusion that it must have been non-accidental injury was formulated by Dr Essex, and it was that which was accepted by the judge and formed the basis of her judgment. Dr Essex put his case, it seems to me, at its best under cross-examination of Miss Topping for the guardian, and this exchange seems to me to encapsulate what this case is about, at page 25 of the transcript of his evidence:

 

 

“Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] ‘As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental’, at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation.”

 

That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury.

 

 

Poor Miss Topping, who was present at the Court of Appeal hearing must have been mortified that what seemed at the time to be solid sound questions ended up destroying the case that she had been building up. I feel for her, there can be no worse moment for an advocate than that.

 

 

With that paragraph ringing in people’s ears, Ward LJ went on to put the nail into the coffin

17. I fear therefore that in this case, despite her careful analysis of the evidence, the judge did fall into that error. The judgment on the lack of protection by the parties is so short of reasoning and in fact, with respect to her, here so difficult to understand that the local authority do not seek to uphold it. We do not know whether the child cried, whether loudly and at length, or whether this was a sustained injury which caused discomfort not noticeable to anybody else. So that part of the finding is, as Ms Morgan submitted, flawed, but in finding as she did that this was a non-accidental injury, I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby

 

 

This is not, bear in mind, a case being resubmitted for a re-hearing, but the findings just being overturned. That would effectively be the end of the case.

 

It is for the Local Authority to prove, on the balance of probabilities, that it is more likely than not that the parent injured the child and how; and that evidential burden is not satisfied by the absence of evidence of a benign explanation.

 

 

 

What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   http://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   http://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   http://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

“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

 

What does Donald Rumsfeld have to do with paediatric head injuries?

Well, you’d surely say, if asked to find the link between Donald Rumsfeld and paediatric head injuries, that it would be “was he dropped on his head as a child?”  

 

 But no, it would be the Court of Appeal decision in Re M (children) 2012

 donald-rumsfeld

It has been a year of the Court of Appeal moving away from the concept of medicine being infallible and towards what is described in this case as the “Donald Rumsfeld question”   – i.e that  “there are known knowns; there are things we know that we know. There are known unknowns; that is to say there are things that, we now know we don’t know.
But there are also unknown unknowns – there are things we do not know we don’t know”

 

 

I remember that being scoffed at, when Rumsfeld said it, but it begins to make sense when you look at it carefully.

 

This is the case of  Re M (Children) 2012 , yet another Court of Appeal case in 2012 on complex medical injuries where the initial finding of non-accidental injury was overturned on appeal (though in this one, the case was submitted for re-hearing, rather than the Court of Appeal finding that the injuries were accidental)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1710.html

 

 

It is a good start for a law geek when the Court of Appeal judgment has almost immediately a sub-heading labelled “the conundrum”  – which produced an almost Pavlovian reaction in Suesspicious Minds, who lives for this sort of thing.

 

It was not and is not disputed that when M was admitted to hospital on 3 August 2011, when she was just five months old, she had three (possibly four) fractured ribs, those fractures having occurred on at least two occasions, and fractures to her skull. What lifts this case out of the ordinary – indeed makes it unprecedented and thus unique in the experience of the very distinguished experts who gave evidence – is that although M had indubitably suffered complex bilateral skull fractures, described by one of the experts as “spectacular”, she had not suffered the very serious brain injuries which would be expected to accompany fractures of such severity.

 

At the very beginning of her judgment the judge described the case as “most unusual and difficult.” She explained why (paragraph 2):

“I should record at the outset that the skull fractures are spectacular, so complex and extensive that they have been described by the experts as beyond anything they have seen before in a child of M’s age in their considerable collective experience. Her clinical presentation, in that she appeared to be reasonably well and suffering no apparent pain or neurological effects, was not just unusual in the circumstances, but inexplicable. This conundrum has perplexed the experts involved and goes to the heart of this case.”

 

The court at first instance had brought on board some of the heaviest hitters in forensic medicine *, and had exhaustively explored the possibility that the child had some form of rare genetic disorder, but there was no such disorder found.

 

*Dr Stephen Chapman, Consultant Paediatric Radiologist at Birmingham Children’s Hospital (report dated 5 November 2011, letter dated 4 December 2011 and addendum report dated 28 January 2012), Mr Peter Richards, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford (report dated 31 March 2012), Dr Katharine Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham (report dated 12 April 2012) and Professor Nicholas Bishop, Professor of Paediatric Bone Disease at the University of Sheffield and Honorary Consultant Paediatrician at the Sheffield Children’s NHS Trust (report dated 8 May 2012 and addendum report dated 11 May 2012).   As I said, heavy hitters.

 

But it is telling when these eminent doctors talk about there being nothing in their experience, or in the medical histories of skull fractures as spectacular as these – the one comparable episode of injury that can be found was of a person who inadvertently walked into moving helicopter rotor blades.

 

So, there was no good explanation for the skull fractures – and I don’t mean in the ‘there’s no good accidental explanation so trauma” sense, but in the “I can’t work out how these injuries could possibly have been inflicted” sense; which is much more problematic in a finding of fact hearing.

 

 

Understandably, once the report from Professor Bishop had established that there was no inherent problem with the child’s bones that would account for organic causes of the spectacular fractures, an experts meeting was assembled.

 

  1. I appreciate that “what is said at an experts’ meeting is not strictly evidence in the case” (per McFarlane J in Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam), [2008] 2 FLR 1708, para 109), though it can of course be put in cross-examination or re-examination. But it is convenient, setting the scene for the evidence that was given by the experts at the trial, to see how this aspect of the matter developed at the experts’ meeting on 15 May 2012.
  1. The issue was first discussed before Dr Halliday joined the meeting. Mr Richards said:

“I can only speak about the head injuries, but there was a lump on the head, very extensive – I would call spectacular – skull fracturing, but no evidence of any injuries to the brain substance or bleeding inside the head.”

Asked whether they all agreed that there were “extensive skull fractures, with minimal brain injury seen on the films?”, both Mr Richards said Dr Chapman said “Yes”. Professor Bishop said:

“I’d agree the extensive skull fractures. I defer to Dr Chapman and Mr Richards about the degree of brain injury. It’s not my area of expertise.”

A little later Mr Richards said this:

“Well, there must have been an impact against a hard surface or crushing of the head. What is unusual – the question of force is difficult, and what is unusual is to have such a degree of skull fracturing without any brain injury. But the fact there are fractures – they don’t occur spontaneously; there must have been some form of impact or crushing of the head … If the head is crushed so much that you get such significant skull fracturing, you’d get some damage to the underlying brain as well. Provided that we’re dealing with normal skull bone, and this is more Professor Bishop’s field.”

The following interchange then followed:

“NB I think from my perspective, there is no doubt in my mind that this child’s skeleton is entirely normal. I’ve never seen fracturing like this even in a child with abnormal bones. And we see children who’ve got very abnormal bones indeed – we simply don’t see this degree of skull fracturing. With normal —

PR So, Professor Bishop, would you agree that this in my mind is spectacular fracturing?

NB I would say it’s the most extensive skull fracture I have ever seen, irrespective of whether there’s an underlying brain injury or not. So —

PR Which is one of the difficulties for me, because yes, I’ve seen extensive fracturing like this before. The last time I remember seeing it was when someone walked into a rotating helicopter tail blade, and got that extensive fracturing, but did not survive very long … And that is unusual, the fact that there is very extensive fracturing, and yet no significant injury of radiology and no apparent clinical injury at all, no clinical disturbance whatsoever.

NB As I say, it’s not accompanied by changes in other parts of the skeleton that would lead my to believe that there’s any underlying bone disease. And having reviewed the child recently, only literally last week, the skeleton looks entirely normal to me, both clinically and radiologically.”

Dr Chapman agreed:

“I think the mechanism’s either going to be crushing or multiple impacts, and I don’t really know what is the actual mechanism … it could be either [one massive impact to the top of the head, but possibly two impacts each side of the head] … We’ve all said this is an absolutely spectacular fracture, and to say that it could have occurred from one impact alone is again I think speculation, because I don’t think any of us have that experience.”

Professor Bishop said “I’d agree with that.” Asked, “So it would be very difficult to speculate as to what it was that caused the injury?”, Mr Richards said:

“Yes. And of course nobody has done research on living infants to fracture their skulls, to see what happens. The only research really that’s been done on fractured skulls and what causes them is that rather unpleasant research of dropping dead babies before you do a post mortem on them, and seeing whether you fracture their skulls.”

  1. The discussion returned to this topic after Dr Halliday came on line. Mr Richards said “The degree of fracturing we all consider is spectacular, outside of our usual expertise”, to which Dr Halliday said “Yes.” Mr Richards continued, “it’s odd that there’s such extensive fracturing, not much scalp swelling, and a seemingly happy baby” to which Dr Halliday responded:

“And no brain injury, yes. Yes, it is odd.”

  1. The significance of this discussion for present purposes is perhaps two-fold. First, all the experts had addressed this issue during the experts’ meeting, so it was not coming to them ‘out of the blue’ at the trial. Second, the experts had been left baffled at the end of the meeting, so it is reasonable to imagine that they were thinking about it in the three weeks that elapsed between the experts’ meeting and the trial.

 

 

So far as the rib fractures were concerned, the expert opinion was fairly straightforward – there was no accidental explanation for them, and there was nothing about their presentation that suggested in any way that they were caused in any way other than by non-accidental trauma.

 

The problem the Judge found herself in was with experts who were clearly baffled by the skull fractures, and whether it was possible to draw a line under that, and make findings about the rib fractures. Or, whether as the parents argued, there was such huge doubt about the skull fracture and how it could be caused at all  (much wider than the accident/non-accident issue, but how they could have come to be at all, particularly when combined with the lack of injury to the brain), that this child must be a medical first with something unknown to current science and therefore something in the way the bones in her fractured was beyond medical science, so not safe to assume anything about how her ribs were fractured.

 

The Judge was further troubled by the evidence given by the parents and clearly found it to be flawed in a number of regards. 

 

Let’s get to Donald Rumsfeld.  (Not a sentence I ever imagined I would type)

 

  1. Mr Richards was cross-examined by Mr Anthony Kirk QC on behalf of the mother:

“Mr Kirk … There is something rather unusual and something rather puzzling about this child’s presentation and the fractures that she has sustained.

Mr Richards Yes. Taking all the aspects – if we look at the three aspects of the fractures, so the fractures themselves, her response to the fractures and the scalp swelling associated with these fractures, either her bones fracture from very minor trauma and that is why there is severe fracturing but very little scalp swelling, or her response to it in terms of pain and suffering is highly abnormal. The whole picture is, with that degree of scalp swelling I would have expected significant brain injury and if there was not significant brain injury and she was conscious I would have expected to be in great pain and disturbance and, given the degree of fracturing, with normal force required to cause that fracturing, I would have expected a lot of scalp swelling.

Mr Kirk Yes. Could these complex fractures have been caused, in M’s case, by a relatively minor trauma?

Mr Richards I would not have expected it to have occurred from a minor trauma if her skull was completely normal but that is a question in my mind. Is her skull in some way abnormal so that she gets these fractures with trauma that would not normally cause these fractures?

Mr Kirk Was that addressed in your experts’ meeting?

Mr Richards It was discussed. Professor Bishop who has looked at the metabolic aspects of bone(?) disease has not been able to identify anything. We have all commented that we have not seen fracturing like this except in very extreme circumstances. I did raise one circumstance where I have seen similar severe fracturing, forgetting the job that her father was doing, but it was an adult injured by a helicopter walking into a rotor blade, a rear rotor blade who had very extensive fracturing and died several hours afterwards which is the kind of injury that I have encountered if you see this kind of fracturing. So if this kind of fracturing with minimal response were to occur there must be something odd about the bones and Professor Bishop cannot find anything but he did say he has not seen fracturing like this either so why he cannot find any metabolic abnormality to explain it, I still wonder in my mind if there is some explanation we are not capable of finding as doctors.

Mr Kirk Thank you. And we cannot rule that out either, Mr Richards, can we?

Mr Richards Oh, absolutely. This is (inaudible) unprecedented in the experience of someone like myself who has been in neurosurgery for nearly thirty years, Steven Chapman who has been a radiologist for many, many years, Professor Bishop who has specialised in bone abnormalities and between us we have got a lot of years where we have seen lots of things but we have not seen this with such a minimum disturbance to a child.”

  1. Mr Richards was then cross-examined by Mr Frank Feehan QC on behalf of the father. I need not set it all out, for necessarily it traversed ground already covered by Mr Kirk:

“Mr Feehan … the problem is, as you see it, that there is no such brain injury. You have looked at the scans and you, and in fact nobody, sees anything with regard to brain injury in this case?

Mr Richards That is correct. And it is not just on the inside of the brain; the outside, her scalp, does not seem to have reacted in a way you would normally expect, this sort of high force injury that you would expect to cause that fracturing.

Mr Feehan In your experience, where someone has suffered an insult to the head of this sort on a normal skull and therefore has suffered brain injury in almost every case, how long do the symptoms of that brain injury last, if they survive?

Mr Richards Well, if they survive … Not many with this degree of injury, fracturing and damage do survive. I had a recent one which was a very great surprise because the initial scan gave us the impression she was not going to survive. She was run over by a Ford Fiesta in a supermarket car park. She got under the car, it drove over her head, the people screamed at the guy to stop so he reversed and did it again and she spent three or four days on a ventilator in intensive care. We at one stage thought she would not survive. She did survive and recovered. She was in hospital for about a month to six weeks before she could go home.

Mr Feehan Essentially, it all comes down to this, does it not, that given the clinical picture and the timing of this the notion of inflicted injury without other injuries such as massive amounts of other broken bones or brain injury just does not fit?

Mr Richards That is correct. It does not add up. To me as a simple(?) surgeon, it suggests there is something wrong with this young lady’s skull. It is unduly fragile which is why I suggested that we needed a metabolic expert to look into this and he has not been able to identify it but it still does not mean to me that this is a normal skull and as we do in medicine, we sometimes show things to colleagues, not with the full story, not with any names. I showed the CT scans to one of my senior colleagues. There are four of us in the department and the one who is just below me in terms of age and I said to him “Look at this scan. This is a child with no brain injury and very little scalp swelling” and he immediately said “There is something wrong with the bones, isn’t there?” … This brings to mind for me that a man of Professor Bishop’s extreme skill has not been able to find anything …”

  1. Mr Feehan returned to the point towards the end of his cross-examination:

“Mr Feehan … we are simply left with this then, that had this been a deliberately inflicted injury causing these fractures in a normal skull, five days before presentation to hospital, first of all your view is she may well not have survived and even if she had survived she would simply not have presented in the way that she did.

Mr Richards Yes, I think she would have … again, it is odd that she does not have so much scalp swelling with these degree of fractures. Even if she had got away with the brain, there is still the soft tissue injury you would expect to be associated with it and you can have fractures all over the head, while you have just one small area of slight swelling, as that is all you see radiologically, why not over the whole of the head, unless the trauma that caused these fractures was less than you would normally expect in these fractures and that is why the response to it in the brain, the patient and the scalp is much less.”

  1. Dr Halliday was cross-examined by Mr Kirk. She agreed with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk (see paragraph 16 above). She went on:

“l think there are several things about this fracture which are extremely unusual. One is its severity. The other is the fact that it is not associated with any brain injury and the third thing which is unusual is that it has … the amount of soft tissue swelling on the CT scan is not very much for such a severe fracture and I think all of us are in agreement that we think these things are very unusual. And can’t really explain them.”

Asked by Mr Kirk whether this was “without parallel in terms of medical reporting and medical annals” she replied:

“Yes, yes, yes they are very unusual. Very unusual.”

  1. Dr Halliday was cross-examined by Mr Feehan. Referring to Mr Richards she said:

“l wouldn’t say M’s skull can’t be normal as you know we doctors don’t like saying things like that, we just say it is very, very unusual so I agree entirely with him that it is very, very unusual. Does it mean that M’s skull cannot be normal? No I don’t think it means that, I just think she has had a very unusual injury. There is some … either … I mean it could be that her skull is abnormal or it could be that she has … there is some sort of quirk of mechanics about the way she has fallen or that she has had several blows or … I think there are a number of explanations but they are extremely unusual.”

  1. Dr Chapman was cross-examined on the point by Mr Feehan:

“Mr Feehan Dr Richards said that his experience of a child suffering sufficient trauma to cause these skull fractures would mean that that child, again, if that child survived, that child would be in intensive care for upwards of two weeks and in hospital, in his experience, for at least a month, if not longer, and yet here we know there was a child who presented to hospital as happy, playful and alert. How does that fit with the kind of forces you describe as being necessary to cause these skull fractures?

Dr Chapman Well, if Mr Richards is right in that the child would be ill for many, many days, and clearly wasn’t upset and ill at the time she was presented for medical attention on the 3rd, then that would imply that the injury occurred nearer to 26th July than it did to 3rd August, and (inaudible) …

Mr Feehan I’ll ask you to pause there because it was clear from Mr Richards’ evidence that the timeframe was simply insufficient to allow recovery. Even the wider timeframe was insufficient to allow recovery of a child to the state seen by 3rd August in this child. Now, let me say this, again, you are a radiologist and he is a clinician in that sense. He sees the children himself and has experience of how children respond to these sorts of injuries. Given that’s his evidence, how does it fit with the level of trauma that you say is required?

Dr Chapman I’m not sure how to answer that.”

Towards the end of cross-examination, Dr Chapman said this:

“Well, I mean, you could argue that (inaudible) that there are an awful lot of inexplicable things in this child.”

And then at the very end:

“Mr Feehan And you, however, Dr Chapman, will be aware from your experience, and no doubt from other cases, that, in giving evidence, you have to at least acknowledge the real possibility that something has happened which simply you can’t explain.

Dr Chapman Of course.”

  1. Cross-examined by Mr Kirk, Dr Chapman associated himself with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk.
  1. Professor Bishop was cross-examined by Mr Kirk:

“Mr Kirk These fractures are, the skull fractures I’m talking about, are indeed highly unusual, if not, dare I go as far as to say, in the annals of medical science, unique in one so young?

Professor Bishop (inaudible) I certainly have not seen anything similar in my clinical practice, focusing on children with bone disease, in the last 16/17 years. That is not to say that it can’t occur and hasn’t occurred in other places and I have simply not been aware of publications that might record such fracturing. But talking with Dr Chapman and Mr Richards, who have also had a lot of experience with looking at x-rays and with traumatic injuries to the skull, they were very much of the same view, that these were exceptionally extensive fractures. And my understanding is that it was for that reason that people were concerned there might be an underlying metabolic bone disease that could give rise to such appearances and that was why I was asked to see M and examine her.”

A little later there was this interchange:

“Mr Kirk … How can one say that this little girl, M, is not, in fact, exhibiting the signs of some new or perhaps hitherto unknown medical disorder in the light of the fractures and her presentation?

Professor Bishop Thank you. Yes. That, I suppose, is a Donald Rumsfeld question. We don’t know what we don’t know. She certainly … there is a possibility that she could have a hitherto unknown and undiagnosed metabolic bone disorder. However, in my experience, children who have such a disorder usually continue to manifest problems associated with such a disorder throughout their life, albeit more frequently at some times in their lives than at other times. And my expectation, based on my clinical practice over the 15 years, would be that we would still be able to discern, at the age of a year, some evidence of underlying bone fragility problem at the age of a year in a child who suffered fractures earlier during infancy. And that’s, as I say, based on our clinical experience on my understanding of the literature and many discussions over the years with friends and colleagues who are also involved in the field. Of course, it is still possible that at the end of all of that this is something new that nobody has ever come across before, but I would still expect, as I say, to see some other evidence of a persisting problem with the bones had the skeleton been so fragile that it had given rise both to the rib fractures and the skull fracturing that were observed originally.

Mr Kirk Thank you for that, Professor Bishop, but just by way of, as it were, come-back or a question, further question on that, if this is, and I use the words ‘completely new and unchartered territory’, one surely can’t be so, as it were, positive in terms of your predictions and predictors, what would you say in answer to that?

Professor Bishop I think it’s absolutely true that every year that goes by we find some new disorder or other that can give rise to a problem with your bones, but it’s a question of balance of probabilities here and the number of children that we have seen over the years who present in the way that M presented and who’ve had bone fragility problems that give rise to such fractures and who then never exhibit any further features of bone fragility subsequently, that, in my experience, would be unique.

Mr Kirk And just, I think, finally this, if I may, you talk about M’s presentation. Professor Bishop, I don’t want to take you back through all of that because her Honour, the court and others have heard from other experts, I described her presentation earlier perhaps as being unique, but certainly the fact that this child remained alive with no massive swelling to the scalp, no significant brain injury and handled perfectly very well in hospital could themselves indeed be described as unique features; would you agree with me on that?

Professor Bishop I would agree in terms of it’s surprising that M suffered no brain injury given the extent of her skull fracture. But, as I said before, that degree of skull fracturing in itself is very unusual, in fact, unique in my experience, and if … I don’t know what else to say, really, other than yes, it’s a very unusual presentation. But, going back to what I said previously, if there was any specific problems with the bones that was likely to give rise to that degree of fracturing I would expect to see some evidence of consistence of that fracturing and further fracturing beyond the time when she first presented to hospital. That would be more in keeping with my clinical experience of how such disease tend to manifest themselves not just at the time of presentation but subsequently as well.”

  1. Cross-examined by Mr Feehan, Professsor Bishop said this:

“in my previous experience of similar matters it is surprising that M did not suffer any brain tissue injury commensurate with the degree of fracturing that she has.”

He was asked by Mr Feehan, “how can you explain the extent of skull fractures, given the lack of brain injury?” He replied:

“Well, I defer to Mr Richards in terms of his experience of these matters, and as I say, it is not my area of expertise drawing conclusions from the extent of skull fracturing that’s unlikely to be a brain injury. One might postulate if one was speculating here that M has been very fortunate in that the force to which her head was subjected result in fracturing which dissipated the force of the impact or whatever it was that caused the fracturing sufficiently that the brain was relatively protected and she is indeed very fortunate in that regard. But that is speculation on my part. I don’t have any good answer for you as to why this degree of fracturing has not resulted in more extensive intracranial injury.”

His response to the next question was:

“I will defer to Mr Richards in terms of his much more extensive experience of these matters, and I think I’d have to refer you back to my previous answer that if you’ve got energy applied to a bone which is sufficient to fracture it, effectively what you are doing when you fracture it is to dissipate the energy but the bone, if absorbing some of that energy and then it’s breaking when the energy exceeds its capacity to absorb that … sorry, when the energy of the force exceeds the bone’s capacity to absorb it. Now, why in this particular circumstance bone has fractured in the way that it has done I can’t answer and I can’t begin to speculate on the amount of force that might have been required to cause such a fracture. What I can say is that M’s skeleton, as it appeared to me on 8th May, was normal, and there was nothing that I could find to give me a reason to suspect that her bones were other than normal.”

He was asked by Mr Feehan “what else might be an explanation for what we see?” Professor Bishop’s answer was “I think you are asking me to speculate beyond the limits of my expertise

 

 

And this, in my humble opinion, is a truly amazing illustration of how cases can be transformed by the hearing of oral evidence. This is not witnesses being tricked or bamboozled, but the skilful drawing out of the awful truth that the doctors simply could not explain what had happened here.

 

With that in mind, whilst the Court were very sympathetic towards the trial judge it is not surprising that they had major problems with findings of fact being made about the injuries being caused by the parents [I think that the one fairly inexplicable thing is why a case like this hadn’t been pushed up to the High Court, particularly after the experts meeting minutes were available, but no criticism is made of anyone for that]

 

  1.  I should at once pay tribute to the care and skill with which Judge Marshall went about the exceptionally difficult task facing her. Her judgment, if I may say so, is impressive and, in all respects save one, compelling. But for one crucial factor it would, I suspect, have been impregnable. If, in addition to the other factures, M had had only a simple skull fracture then the judge’s findings would in all probability have been unassailable.
  1. As it is, many of her findings cannot, I suspect, sensibly be challenged. Thus, even allowing for the fact that M’s presentation was medically inexplicable, I think Mr Feehan would have faced a very uphill task if he had tried to argue (though he did not need to) that the judge was not entitled to conclude, as she did (paragraph 84), that:

“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit.”

That was not a finding driven by the medical frame of reference; it was, in large part, as the judgment explains, based on difficulties in the parents’ own evidence. Similarly, it is difficult to challenge what the judge said a little later (paragraph 85):

“I conclude that the evidence is weighted in favour of a finding that it is more likely than not that the parents have not told this court the truth about what has happened to M.”

  1. But, of course, the case was not as simple as that.
  1. For present purposes one can, I think, start with two propositions which I shall assume, even if not necessarily accepting: first, that the judge, for the reasons she gave, was entitled to rely on Professor Bishop’s evidence; second, and again for the reasons she gave, that the judge was entitled to reject the parents’ evidence. But where did this leave her? Facing the central conundrum that all the experts were baffled – none could explain M’s presentation in the light of the skull fractures – and, as I have already pointed out, that her acceptance of Professor Bishop’s evidence did not resolve the case, it made it more difficult.
  1. In addressing that central conundrum Judge Marshall, in my judgment, fell into error. One can see the three facets of that error developing gradually through the key passages in her judgment. In the first place (see paragraphs 49, 61), by focusing on Mr Richards she tended to downplay the fact that, as she had previously recognised (paragraphs 2, 48), all the experts were baffled. Second (see paragraphs 49, 79), she failed to appreciate (or if she did appreciate it she failed to address) the fact that her acceptance of Professor Bishop’s evidence did not resolve the case but made it more difficult. Third, and crucially (see paragraph 86), she failed to explain how she was able to move direct from acceptance that:

“How M’s skull fractures were caused remains a mystery, but there must, of course, be an explanation, albeit at this stage unknown”,

to a finding in the very next sentence that:

“The fact that the parents have not provided a truthful account supports a finding on the evidence, including the drawing of reasonable inference, that it is more likely than not that the injuries are non-accidental.”

  1. In relation to this, I should make clear that I cannot accept Ms Judd’s reading of what the judge was saying here. After all, at the very beginning of her judgment (paragraph 2) Judge Marshall had described M’s presentation as “not just unusual … but inexplicable”, and in my judgment she was, for the reasons I have already given, entirely justified in characterising the case in this way. That was, after all, the effect of the expert evidence. She had, correctly, acknowledged (paragraph 48) that all the experts found it a “particularly perplexing and unusual case” and (paragraph 85) that there were features of the case “that are indeed perplexing.” So if, when she was describing causation as a “mystery” and the explanation as “unknown” (paragraph 86), Judge Marshall was meaning no more than that the parents had provided no adequate explanation – and that is not how I read her words given what she had said elsewhere in her judgment – her analysis would be liable to the further criticism that she was at this point simply not engaging at all with the substance of the expert evidence.
  1. There is another difficulty with Judge Marshall’s judgment which in a sense encapsulates all the others. It is to be found in a passage (paragraph 84) that I have already quoted:

“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit. I am not persuaded that this is a case where the court should find that there is something unexplained, beyond current medical knowledge. Father on his own account did not tell the truth … (emphasis added).”

As I have already explained I have no particular difficulty with the first sentence, nor for that matter with the third. But the second sentence, which I have emphasised, presents major difficulties. The judge’s refusal to find that there was “something unexplained, beyond current medical knowledge” was not merely inconsistent with what she had said at the outset of her judgment (paragraph 2) and, as I read it, with what she said only two paragraphs further on (paragraph 86); perhaps more to the point it was inconsistent with the expert evidence. At the very least, it was a finding which, given the expert evidence, required much more explanation, a much more convincing process of reasoning, than is to be found anywhere in the judgment.

  1. In these circumstances I conclude that, for all its many merits, this judgment cannot stand. Judge Marshall has simply not explained how, in the light of the expert evidence, she was able to arrive at her final conclusion. It may be that there was, in the light of the evidence, no way in which the judge could have arrived at her conclusion, though that is not, in my judgment, something we can safely and properly decide for ourselves. But certainly, and it is on this basis that, in my judgment, this appeal must be allowed, the judge has not explained how she arrived at her conclusion. That omission, going to the central issue in the case, is fatal and necessarily vitiates her findings.
  1. Standing back from all the detail it might be said that given this collection of injuries – rib fractures caused on two occasions and very severe skull fractures – arising in circumstances where there is no suggestion that anyone other than the parents (or one of them) could have been responsible, and where the parents’ accounts and explanations have appropriately been rejected, it was open to a judge to find as Judge Marshall did. So, I have little doubt, it would have been if the case had fallen to be determined in accordance with a conventional medical frame of reference. But it did not, for, to repeat the point, so far as the skull fractures were concerned M’s presentation was inexplicable assessed by reference to conventional medical opinion and experience. And it must follow from the inability of conventional learning to explain the skull fractures that the judge’s findings in relation to the rib fractures are also vulnerable. So there is, in my judgment, no scope for drawing a distinction and upholding the judge’s findings in relation to the one whilst upsetting her judgment on the other.

 

 

Well, on the one hand, clearly this case is unique to date in medical science, hence the case might be of limited value, but on the other, it is yet a further piece of argument as to the limitations of what medical knowledge can tell the Court and that even something which seems utterly impossible – that a child can sustain such significant skull fractures that the only comparable example is of a person who had walked into rotating helicopter blades with no organic cause and no accidental explanation but without any culpability, can be possible.

 

Until this case, the Court, and the experts, did not know that this could be a possibility, hence it was something that not only did they not know, but they didn’t know they didn’t know it.

That reminded me of R D Laing, and his Knots poem

 

There is something I don’t know

that I am supposed to know.

I don’t know what it is I don’t know

and yet am supposed to know,

and I feel I look stupid

if I seem both not to know it

and not know what it is I don’t know.

Therefore, I pretend I know it.
 
 

This is nerve-racking

since I don’t know what I must pretend to know.

Therefore I pretend to know everything.

 

subdural haematomas, fractures and rickets

This is a case which has been in the news lately. I was tempted to write a blog on it, but I have to be frank and say that the summary prepared by Leading Counsel in the case which appears here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97208

would be hard to be bettered.

I think that Islington were in an extremely difficult spot here. On the one hand, the case did not go before a Jury in the criminal trial because the trial Judge did not consider that it would be possible given the medical evidence for the criminal standard of proof to be met.  (It may have gone higher than that,  since it wasn’t even put before the jury with a direction to acquit, and it may have been that the criminal summing up went very close to saying that the defence were right)

But Islington were faced with medical professionals in their area saying that the injuries were as serious as it is possible to be, and were on the balance of probabilities caused non-accidentally, and faced with another child of the family.

They had a tough decision to make – either no intervention at all (since if the American experts were right, the parents had done nothing wrong and suffered a huge tragedy AND had that compounded by a criminal trial) or place the issue before the Court to establish whether it was more likely than not that the younger child was at risk.

It is of course, awful, that the parents had to go through not only their loss, but two sets of legal proceedings to defend themselves and reach the truth, and that this process was no doubt gruelling, distressing, arduous and all consuming.

But I think those who criticise Islington for bringing the case perhaps misunderstand the position that they were in – it wasn’t a second bite of the cherry, but an untenable position that was only capable of being resolved by either the Local Authority taking a gamble that the American experts had been right and there was no risk to this child (and who would have been defending them had they taken that gamble and been wrong) or saying to a Court – this is beyond our scope to decide which set of medics is right, and that’s what you’re there for.

The Court could have taken a very robust view of the case at a really early stage and said, having viewed the criminal papers, it is understandable that the Local Authority have brought this case but there is no need for a finding of fact hearing and the Court is satisfied that the threshold isn’t met. That would effectively have taken that burden of managing an unknown risk off the shoulders of the Local Authority. The Court did not do that. The fact that the Court decided that the issues in the case had to be resolved by a four week finding of fact hearing meant that the issues were difficult and needed careful thought and resolution.

It might be, I know not, that when the evidence was heard, it was all blindingly obvious what the correct version of events was, but it wasn’t blindingly obvious until that process began, and I think that everyone involved in this process was just in a really difficult situation.

 

[Caveat – there’s obviously a large range of nuance that can be applied by a Local Authority in this situation, from the extremes of “We don’t believe that these parents did anything wrong, and invite the Court to give a brief judgment to that effect” to “the LA firmly believe in the medical views expressed by the Great Ormond Street medics, and seek the highest findings” and where this LA positioned themselves on that wide scale is probably critical]

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