That’s an intriguing hook for a judgment. It comes from a decision of His Honour Judge Jones, sitting in Prestatyn. (For the benefit of David B – not precedent, not binding )
There are two judgments. The first
Re E (A child) 2017
discusses a scenario in which a Local Authority sought, and obtained, an Emergency Protection Order on the basis of a medical report that said that a baby had a rib fracture (and a bruise to the face – it being accepted by father that he caused the bruise). The child was removed into care (luckily placed with grandparents) and 13 weeks later a second opinion concluded that the rib fracture was the result of a birth trauma. The child was returned to the parents and the proceedings withdrawn. The judgment explores what went wrong and why the first medical report had not said that birth trauma was a possibility.
The second (annoyingly named) case
Is Re E (A child) 2017
in which, because of the complaints made against third parties in the first judgment, those third parties were represented to make their own representations as to whether those complaints were fair.
So,let’s go to the first judgment and look at the full quotation from the headline
53. All is not well with child protection in North Wales. I believe there have been significant deficiencies in the joint agency working this case. Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency. A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.
54. Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.
I would like to pause now, and just consider for a moment what you take “all is not well with child protection in North Wales” to mean. I know that I had a fairly immediate reaction to the sense of the scale of the problem that the Judge saying that was seeking to convey.
We’ll skip now to the second judgment, where this particular phrase was pecked at by lawyers and the Judge clarified it. The “Third Intervenor” is the hospital where the original doctors were based.
59. Accordingly, the first sentence of paragraph 53 is not an exclusive reference to the Third Intervenor. ‘All is not well with child protection in North Wales’ means no more than that. E’s case demonstrated that things could be better. Were it otherwise, no improvements would be required at all. ‘All is not well’ does not mean that ‘everything is bad’. It is not intended to lead to an unnecessary lack of public confidence, and I do not believe that any careful and intelligent member of the public would ascribe to this sentence such a meaning. I have no idea whether anyone will pay any attention whatsoever to the judgments delivered, despite my request in paragraph 53. However, I do not propose to withdraw that first sentence which, at the time it was delivered, was no more than an accurate and measured indication of my honest conclusion at the time.
My reading of the clarification is something more akin to “There has been a significant problem in this case which needs careful attention to be sure as to whether there is a systemic problem” whereas my original reading of “all is not well with child protection in North Wales” is much more serious.
If I was attributing a scale whereby 0 was perfection and 10 was utterly meltdown disaster, I would say that the “all is not well with child protection in North Wales” would be a 7 or 8, and the clarification would suggest it was more a 4 or 5. So I would, have ascribed to the original remark that the Judge had a lack of confidence in the system’s ability to act properly – I like to think of myself as a careful and intelligent member of the public.
Would be interested to see where readers would place the ‘all is not well with child protection in North Wales” on that 0-10 crisis scale – and where they place the facts of the case too.
On my crisis scale, for example, 3 is “I’m at Jurassic Park and the air conditioning doesn’t seem to be functioning as it should” and 9 is “I’m at Jurassic Park and a beast that is intended to be able to eat a T-Rex has got loose and wants to eat me, also that volcano that I assumed was just a photogenic backdrop is exploding”. If you don’t know this about me, I would TOTALLY go to a real Jurassic Park, even if there was a sign above the entrance that said “Four hours since last fatal incident to a guest”. If you’ve got to go, I want it to be via being impaled on the horns of a Triceratops. So, is this a glitch in the air con, a gap in a fence, a velociraptor’s claw jiggling the doorhandle from the other side of the door, or the volcano getting jiggy with it?
Back to the facts.
Dr B,a consultant paediatrician
13. Dr B, in the Child Protection Report dated 21st September 2016, identified the bruising evident upon examination, and he noted also the history. Under the heading “opinion” he indicated:
“… it is possible that the bruise was caused by the father’s over-enthusiastic manipulation of the baby’s cheeks”
as explained by the father, and as noted from an early stage by Dr B in his report.
14. I am puzzled, however, by some aspects of this report. Under its heading it is stated:
“This report does not constitute a witness statement”
and it is described as being:
“Private and confidential – not to be disclosed without the permission of the author”.
It is perfectly true that this report does not comply with the requirements of the Family Procedure Rules for the preparation of witness statements. No permission under Part 25 of the Family Procedure Rules could be given at this early stage of the child protection investigation, because proceedings had not been commenced.
15. However, local authorities inevitably use (and are usually obliged to use) the reports of investigating clinicians, when children are routinely presented at the casualty department of a local general hospital. These reports are often used as the basis of applications for protective Orders at the initial stages of proceedings, under the Children Act 1989.
16. Such a report is not in these circumstances “private nor confidential”. While it may not be a witness statement, it is certainly relied upon by the Court as evidence which may be supportive of the Local Authority’s initial application, which may include an application for a removal of a child from parental care.
17. It may be necessary to clarify this position with the Third Intervenor and its clinicians as a matter of urgency. Child protection is a difficult task but it is a critically necessary task. Medical clinicians are required to provide the relevant medical evidence so that a child may be protected and avoid harm. This may involve the use of reports provided by examining clinicians in Court proceedings. Privacy and confidentiality simply cannot be guaranteed in these circumstances. If clinicians refuse to provide medical reports in these circumstances, then it is up to the Third Intervenor to make the necessary contractual modifications to ensure that this critical medical service is afforded to vulnerable children in North Wales.
There was then an internal second opinion, by Dr A, a paediatric radiologist (from a different hospital). Note the passage of time between the two reports – around 3 weeks. It SEEMS that this was intended to be an internal memo from Dr A to another doctor, Dr F, but it was the document produced to the Court at the EPO hearing.
18. Dr A’s second opinion, dated 13th October 2016, confirmed:
(i) a radiologically normal bone density;
(ii) a fracture between two to four weeks of age at the time of the skeletal survey;
(iii) that rib fractures resulted from abnormal, excessive squeezing/compressive forces applied to the chest;
(iv) “… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.
19. Dr A was subsequently asked to clarify this last opinion. She was “unsure as to what has caused confusion” on 26th October 2016 (see E9). She continued:
“If a satisfactory account of the mechanism of injury has not been offered and there is no evidence of an underlying medical cause for the fracture (as determined by the clinicians) this fracture may have been caused by inflicted or non-accidental injury (interchangeable terms) and this must be excluded by other investigations – not just imaging”.
20. By this stage, the possibility of a birth trauma was evident and had been raised. E was four weeks and four days old at the time of the skeletal survey. Whereas E’s age must have been known to Dr A as part of the background information supplied by Dr F for the review, (it is noted specifically at the head of her report under E’s name) there was no mention of this birth related causation in the initial report dated 13th October 2016. It was this report which led to the granting of the Emergency Protection Order on 19th October 2016.
So those were the reports from effectively the treating medics. The Court directed for court-appointed experts to consider the case and give a second opinion. Dr M, a paediatrician and Dr C a radiologist
21. Dr C in the report dated 12th December 2016, has confirmed:
(i) E was a heavy baby;
(ii) shoulder dystocia (obstruction by the shoulders) occurred during E’s delivery;
(iii) compression and distortion of the infant chest by the McRoberts manoeuvre ensued.
At paragraph 15:
“Thus the radiological evidence is consistent with a fracture three to five weeks old on a date when E was nearly five weeks old. From a radiological perspective alone it is not possible to exclude an injury sustained at birth”.
22. Dr M, from paragraph 49 of his report of 19th December 2016, stated:
“… there would be little doubt that there is potential for birth to have caused E’s fracture”.
In relation to the facial bruising at paragraph 76 Dr M indicated:
“… it would have been possible for (the father) to have caused bruising to E’s face but I would not imagine that this could have been done without E experiencing pain and becoming distressed if forces sufficient to cause bruising had been involved”.
23. The father has always admitted this injury, which would of itself probably not have merited the removal of E from parental care.
Having received those reports, the Local Authority accepted the medical consensus which emerged which was that the rib fracture was caused during birth, and thus was not the fault of either parent, and withdrew their application.
The Court identified several matters arising
(a) Photographic evidence
28. I shall provide a summary of Dr W’s reply, on behalf of the Third Intervenor, and then I shall provide my response thereto:
(i) The reply
29. Cameras are available for doctors to take photographs of injuries as “good practice”.
30. I do not know whether these cameras are available at all Third Intervenor hospitals when child protection medicals take place. I have received no confirmation of this by the Third Intervenor.
(ii) The reply
31. Photographs taken by medical practitioners should not be relied upon for evidential purposes.
32. Why not? In children’s cases this evidence would be potentially admissible and it would be relevant. It might be technically preferable for the Police forensic photographer to take good quality photographs, but where this has not occurred I do not understand the basis of Dr W’s assertion, at least in children’s proceedings before the Family Court.
(iii) The reply
33. Doctors need the consent of parents/from the holder of parental responsibility to take photographs. Where this is not forthcoming the Police should have insisted and the photographs should then be taken by the Scenes of Crime Police Officer.
34. There is no indication in the Police chronology that in this instance (since there was a question mark over parental consent) that the Police were alerted, nor did they take photographs as part of their Police investigation. This should, in my judgment, be a matter of routine. Photographs of suspected inflicted child injuries should be taken at the hospital, either by the hospital itself, or alternatively with the assistance of X Police Authority, and if consent is not forthcoming Police involvement is required as a routine procedure. Evidentially these photographs (with any diagrammatic and written recording) is critical for both the Criminal and the Family Courts. The failure to provide this facility potentially compromises the safety of children.
(iv) The reply
35. Body/facial diagrams of relevant injuries must also be included as standard, and routine for the Court and for expert usage.
36. I have no response to make with regard to that reply.
(b) The initial medical evidence
37. I shall summarise the reply given by the Medical Director of Y Hospital [hospital identified] and my response thereto:
38. The reply
(i) The second opinion/review provided by Dr A was a letter between clinicians and not an expert report for the Court;
(ii) The letter of request for this review did not include any clinical information;
(iii) The second opinion reporting service is offered in order to ensure that injuries are not missed by less experienced radiologists. The information provided is included in the patient’s notes, and is available to the parties in the proceedings;
(iv) Dr A was not asked about the possibility of birth trauma in the letter by social workers;
(v) It was acknowledged that while it might be helpful for Dr A to have mentioned the possibility of birth trauma, by giving a dating range for the fracture that included birth, it was expected that the clinicians (presumably locally and not at Y Hospital [hospital identified]) would consider birth trauma as a possible mechanism for injury.
39. If Dr A’s report/review dated 13th October 2016, was intended to be used solely as an intra-medical document confirming the presence/absence of bony injury, then that should have been clarified at the outset. The document went further than merely confirming the existence or absence of a fracture, because it provided an opinion about causation.
40. Reviews sought in the context of an ongoing child protection investigation should be clearly identified as such, so that there is absolute clarity about:
(i) the purpose for which the review document is sought;
(ii) the potential usage (including Court usage) of the document seeking the review and the review document itself provided by the clinician concerned;
(iii) the background information which is provided for the review, and who is responsible for providing the same;
(iv) the precise information sought from the reviewing doctor, and who ultimately is responsible for “joining the dots” and reaching a conclusion about any possible different methods of causation; and
(v) why (since Dr A had been provided with E’s date of birth and it is included in her report) did she not herself consider birth trauma as a possibility, and mention that expressly to Dr F in her reply? Nothing surely could have been more straightforward.
(c) The wording of Dr A’s initial review
(i) The reply
41. Again it is asserted that the 13th October 2016, document was intended solely for a fellow clinician.
42. Greater clarity about this aspect must be secured by the Third Intervenor, the Local Authorities of X region [geographical region identified] and Y Hospital [hospital identified].
43. In child protection terms these documents are of limited benefit if they are not intended for potential Court use, so that protective Orders can be sought in those cases where such Orders are required. A letter restricted to the use of a fellow medical clinician is of little forensic use to the Court in considering the statutory threshold. This issue needs to be resolved as speedily as possible by the relevant agencies. The Court needs to be able to rely upon the relevant medical expertise in order to safeguard vulnerable children.
44. I have referred already to Dr A’s statement in the second paragraph at page two of her report of 13th October 2016. I believe “excluded” to be a typographical error for “included”. The sentence makes no sense otherwise and is, I believe, the only reasonable interpretation of it.
45. In the reply by the Medical Director (on behalf of Dr A) an attempt is made to distinguish between the understanding of clinicians and “non-medics”. In this context I am afraid I do not understand the distinction. Clinicians and non-medics use the English language. The words used have an ordinary meaning, intelligible to both medics and non-medics alike. If Dr A wished to restrict the disclosure of her letter to clinicians only, then it might have been better not to have sought an opinion from her in a child protection investigation, which involved the possibility of proceedings in the Court arena, where inevitably her letter would be considered by “non-medics”.
46. If alternatively, Dr A understood the purpose of the enquiry and the potential use to which her reply might be put (namely as the basis of a Court Order which ultimately led to the removal of a child from parental care for thirteen weeks) then it was incumbent upon her to communicate her opinion in a manner which was capable of being understood clearly by those having recourse to her letter in those proceedings. If, as asserted, she had ten years’ experience as a Consultant Radiologist, and “expert witness” then I would not have expected this to have caused her any difficulty whatsoever.
The other matters raised and replied to by the appropriate agencies
(a) The delay in obtaining the review from 22nd September 2016 (the date of the skeletal survey) and 12th to 13th October 2016
47. “It is unclear why there was a delay of two weeks between the first and second internal review of the skeletal survey. It is also unclear why the skeletal survey was not routinely reported on (sic) by Y Hospital [hospital identified]”.
48. This situation merits urgent improvement.
(b) The lack of skeletal survey
49. The Guidance for Radiological Investigation of Suspected Non-accidental Injury, published in 2008, suggests a full skeletal survey should be repeated, save for skull fractures. The risk of radiation to the child must also be considered. The above standards are being reviewed by the Third Intervenor in considering its own standard operating procedures. The Consultant involved in this case believed that a repeat skeletal survey should have been obtained.
50. This situation again merits further urgent review and improvement.
I found the second judgment a bit hard-going, not least because the identities of the various Intervenors are not terribly clear – but I’ve linked to it if people want to read that. Nothing within it really alters the first judgment although the thrust of it seems to be that the radiologist, Dr B, had not written the report to be used in court proceedings and the intended recipient was another doctor, Dr F, not lawyers and social workers and Judges.
Under the heading ‘The Second Intervenor’s Involvement’, Mr Sheldon says that the Second Intervenor’ involvement in E’s case was limited to the sending of one letter and one email, in the context of a second opinion service. I have referred to these documents already. This refers to the document of 13th October and 26th October 2016, and the former was relevant to the hearing conducted by me for an application for an emergency protection order. The second was not relevant to a hearing conducted by me.
45. It is asserted: ‘There was no indication that the Second Intervenor’s second opinion would be put to any use, other than assisting Dr F in his assessment of the case’. This is referable of course to the 13th October report. Then, at paragraph 17 of the skeleton, the following appears:
‘On a date unknown to the Second Intervenor, her letter to Dr F was passed to the representatives of the Local Authority, who determined that it should be used as part of the material in support of an application for an emergency protection order. The Second Intervenor was not informed that this was to be done. She was not given an opportunity to consider the terms of her letter, for the purposes of determining whether she would wish to clarify or amplify its terms in light of the use to which it was now to be put, and she was not contacted by the Local Authority to obtain her assistance as to the correct interpretation of her letter, before the application was made. The Second Intervenor was not called as a witness at the application for the emergency protection order, and she has no idea what was said to the court on that occasion about her letter’.
Dr B says that she has learned from this of the need to be clearer in her use of language.
It appears that everyone at the initial hearing had taken the radiologist’s meaning to be that there was a diagnosis that the injury had occurred non-accidentally (or deliberately to use Ryder LJ’s preferred terminology) whereas the radiologist was intending to convey that there was investigation to be carried out to see if a deliberate / non-accidental cause could be EXCLUDED.
(just to refresh our memories, this is the line from the original report – the word ‘excluded’ was used and I believe people read it to be a typo to mean ‘not excluded’ or ‘included’ (hence the (sic).) It was not in fact a typo, and it was meaning excluded in more of a verb sense – ‘to carry out further investigations with a view to whether deliberate injury could be excluded’ – you can see why that was confusing. I lose my grip of understanding this every couple of seconds, it slips out like a bar of soap through wet hands. Sidebar to this sidebar – that image reminded me of the Lewis Carroll lines
He thought he saw a Argument; That proved he was the Pope: He looked again, and found it was; A Bar of Mottled Soap. ‘A fact so dread,’ he faintly said,; ‘Extinguishes all hope!’ )
“… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.
Judgment 2 explanation
In paragraph 18(iv) of my March judgment, I quoted from a section of the Second Intervenor’s 13th October report. I am informed, and I accept, that she intended the word ‘excluded’ and that there was no error by her. What was intended to be conveyed was this: ‘If there is no satisfactory account of the mechanism of the injury, and if there is no underlying medical cause, the exclusion of these explanations then dictates the next stage, namely to exclude a non-accidental injury’. I am told, and I accept, that medical clinicians would perfectly well understand this comment by her. However, I repeat that the report of 13th October, whether rightly or wrongly, was being relied upon by the Local Authority as part of its application for removal, and legal requirements were under consideration as well as medical.
53. The Second Intervenor indicated in her 24th January reply “…this statement was included in a letter intended for a fellow clinician”. She is referring there, of course, to Dr F. Later, and I quote her: “However, I have reflected on this case, and I am sorry that my use of language has caused difficulties. In future, I intend to avoid the phrase “must be excluded”, and replace it with “must be considered”’.
54. I understood that Ms Cavanagh on behalf of the First Intervenor accepted, at paragraph 33(h) of her skeleton argument, “that the wording served to create ambiguity in the mind of the non‑clinical reader, and as such, given the use put to such documentation in early stages of court proceedings, clearer words will be used hereafter”.
55. Mr Sheldon, at paragraph 45 of his skeleton argument, indicated that the Second Intervenor ‘now ensures that she does not use the terminology of exclusion when drafting documents which may come to form part of court proceedings. She has also advised her colleagues to do the same’. With that assurance, I am content.
The Judge is clear that his judgments were not about apportioning individual blame or responsibility, but to explore the systemic problems.
Firstly, I have invited, and I have received, the further submissions after my 6th March judgment. Secondly, this judgment does provide clarification and amplification for that March judgment, which can be supplemented with the publication of any additional appendices. Thirdly, I would be exceeding my remit if I sought to give general guidance with regard to the provision of second opinion evidence in child protection cases. That is a matter either for the High Court or for the Court of Appeal, and for the president of the Family Division. I am only a foot soldier, the designated Family Judge for North Wales, without any further and wider responsibility than that. Cumulatively, these two judgments are designed to alert local agencies to what happened in E’s case, so as to improve practice, and to provide some explanation to E’s parents as well. Silence would not be an option in these unhappy circumstances, as I have said already.
- Fourthly, neither judgment is intended to attribute individual blame or responsibility. I make it clear I am not dealing with a case of professional negligence or misconduct. I make a plea for systemic improvements (as indicated in paragraph 50 of my original judgment). No more, and no less, than that. If the improvements have all taken place, so much the better. Time, of course, will tell. Fifthly, I will reserve the issue of extended anonymity until I have heard further argument in the light of the President’s Guidance. A combination of different things led to E’s removal from parental care. It was not exclusively referable to the Second Intervenor, as asserted in paragraph 26 of Mr Sheldon’s skeleton argument. Indeed, as I made the emergency protection order, I am ultimately responsible, and I acknowledged that in my apology to the parents, which I have made already. I do not shy away from my responsibility in the least.