What the Court want from experts, and other adventures in judicial ass-whupping

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

107. Dr Rylance’s report

108. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.

109. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.

110. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4^th and 5^th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.

111. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.

112. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.

113. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.

114. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.

115. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

55. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.

56. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.

57. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”

58. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.

59. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.

60. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.

61. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.

62. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.

63. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.

64. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

71. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.

72. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”

73. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.

74. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”

75. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”

76. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.

77. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.

78. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.

79. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

8. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.

9. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.

10. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

1. 94.   Case handling by the local authority

95. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.

96. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.

97. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.

98. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).

99. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.

100. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.

101. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”

102. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”

103. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.

104. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.

105. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.