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Category Archives: experts

Tape recording of an expert (a SHOCKING case)

Truly, absolutely shocking.

This was a set of care proceedings, transferred up to the High Court before Mr Justice Hayden. A  consultant clinical psychologist, Dr Ben Harper, was instructed by the Court to assess the mother. The mother unknown to him, tape recorded their sessions. After the report of Dr Harper arrived, containing words set out in quotation marks attributed to the mother that she says she did not say, those tape recordings were transcribed and showed that she was correct.


Re F (A Minor) 2016


Here are the findings that mother’s team invited the Court to make – you’ll see that they are very powerful  (perhaps even career-damaging stuff)


  1. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
    1. 1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.

  1. As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.



Holy wow.


Dr Harper was invited to intervene in the proceedings, and was represented by Fenella Morris QC.


The Judge did not approach the matter on the basis of the schedule of findings drawn up  (that’s rather annoying for me, as it would have helped to look at such particularised findings, but that was a judicial decision)


  1. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother’s team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?


  1. Dr Harper’s report is dated 11th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:
  2. i) ‘I have exercised reasonable care and skill in order to be accurate and complete in preparing this report’;

ii) ‘I understand that this report will form the evidence to be given under oath or affirmation’;

iii) ‘I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above’;

iv) ‘I confirm that I have acted in accordance with the Codes of Practice for Experts’.

  1. Finally, the ‘STATEMENT OF TRUTH’ appears at the very end of the report. Familiar though it is, it requires to be repeated here:
    1. “I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true”


Responding directly to the schedule of findings sought by mother’s team, Dr Harper said this


  1. Responding directly to the schedule Dr Harper makes this concession:
    1. 12. There are a number of occasions where I have referred to Mrs Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”


Yes, if I read a report from an expert that said


Mother said she was sorry for all the trouble she had caused

I would think that there was an apology along those lines but not that this represented a verbatim account but


Mother said “I’m sorry for all the trouble I’ve caused”


I would read as being, the expert is reporting the words that she used and is stating with confidence that she used those words.

So having remarks in quotation marks that mother did not actually say is a significant deficiency.

What did the Judge say about that?

  1. I have read this paragraph a number of times. It seems to me to do Dr Harper no credit at all. It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
  2. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children’s Guardian by Mr Cohen QC and Mr Edwards:
    1. “It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process.”



I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses, if an expert attributes quotations to a parent and a child that they did not say, that were ‘impressions’ and that the note keeping was minimal.


As these ‘quotations’ were not present in the tape-recorded formal sessions, there was some consideration of whether they were instead conversations or discussions that took place at one meeting on 6th April, which appears to have been a contact session and two discussions on the way in and way out of the session


  1. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper’s integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:
    1. “For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper’s account of the ‘discussions’ that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon.”
  2. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
  3. The 6th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child’s challenging behaviour. On Dr Harper’s account he had decided to change the agenda and look at what he has referred to as ‘the inconsistencies of the Mother’s various narrative accounts’. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, ‘polar opposites’ and ‘at a 180 degrees to each other’. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
  4. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper’s account of her as agitated is an honest expression of his perception.
  5. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party’s view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother’s recollection and Dr Harper’s. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.



[That does not sound terribly plausible]


  1. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper ‘has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing’. This leads Mr Cohen further to submit:
    1. “We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so.
  2. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper’s admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
  3. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.



The Judge’s overall impression and his decision about whether Dr Harper’s report could be relied upon in the care proceedings :-


  1. The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
  2. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper’s central thesis is probably correct. He summarises it succinctly thus:
    1. “Dr Harper’s concern about the mother’s inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk.”
  3. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper’s opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
  4. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper’s evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother’s own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother’s evidence is ‘reliability’ not ‘credibility’. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
  5. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper’s professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
  6. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 23iv:
    1. “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice”
  7. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.



[I’m not sure why the Courts have felt that amour-propre is an expression in common use, but basically ‘reputation’ would do the trick just as well – the self-esteem that comes from the opinion of others]


It is a bitterly ironic twist that part of the disputed attributed quotations were Dr Harper stating that the mother had been critical of other (past) experts, calling them liars.


This concept of an expert taking an impression but then attributing quotations to the mother that she did not say and that the notes could have given no indication of her having said is a truly shocking one.  As the Judge says, doing this gives the conclusions and recommendations of the report far more weight as it seems to come directly from mother, she condemning herself out of her own mouth, rather than the expert stating that he had the impression  (which of course can be cross-examined as to the forensic basis of this)

Let us be honest – if the mother simply asserted that she had not said this, and had not tape-recorded the sessions, who would have been believed? We have to be able to trust experts – they may genuinely form the wrong opinion, and may be shifted in cross-examination, but there has to be trust that if a report says  Mother said “X Y Z” that she actually said those things.  Future of children is at stake here.  We must demand higher standards from experts than we would of political journalists, surely.


(I’m reminded a little of the Overegging the Pudding case    though of course this goes still further, from cherry-picking only the negatives to flat out creation of quotations that the mother did not in fact say)


It is also an interesting comparison, given that both were Hayden J to the criticism he made of the ISW in the radicalisation case (which were about competence rather than integrity) and the fairer process here where the expert had the opportunity to be represented and respond to the criticisms – in both cases they could have a serious impact on livelihood of the experts, for whom reputation is a vital component in them obtaining future instructions.

Low level falls and head injuries


This is a case decided by Recorder Howe QC, and it is not binding precedent, and also of course it turns on the individual facts of the case, but it does seem to me to have wider interest and implications on what the medical professionals said about whether a fall from a low level height could cause the sort of bleeding on the brain (subdural haematomas) which are often linked with non-accidental shaking injury.  There was also a skull fracture about a month later.

In this case, the parents account was that the only incident of note was the child, 11 months old, had been standing, holding onto the back of a chair for support and had fallen backwards and banged his head on a laminate floor. The skull fracture they say was caused when the child fell and hit his head on a kerb.

Could that have caused the serious injuries that he sustained?


Re N (A child: Low level falls) 2016

Regulars may have picked up that there is a lot of controversy about subdural haematomas and how they might be caused and whether there can, in some cases, be a more benign explanation. The subject even made the national news when Dr Waney Squier was struck off by the GMC for having a view that they considered to be out of step with mainstream thinking.

Here is what the experts said on this case, and I think it is very candid about the limitations of medical science and that the field develops and moves on.  As indicated earlier, much of what is said relates to the very particular set of circumstances of this particular case, but some passages have potential wider interest. I’ve tried to underline these.


The Evidence Presented at the Hearing

The Expert Evidence

  1. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  2. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  3. The 3 experts participated in an experts’ meeting on 11 th February 2016 and the transcript of that meeting is found at E152 of the court bundle. The transcript records a very large measure of agreement between the experts that can be summarized in relatively short form. All 3 experts accepted that the fall described by the parents on 9 th August 2015 could cause the intracranial injuries discovered [the August injury], although such significant injury from a fall from standing would be very unusual. Mr Richards was of the opinion that the significant interference with the functioning of the brain was also very unusual from such a low fall. Despite the unusual features, the experts would accept the account given for the August injury to be a credible explanation.
  4. Concerning the September injury, the experts agreed that no convincing explanation had been given as to how N had suffered this fracture. They were all of the opinion that the explanations offered by the parents were very unlikely to cause a skull fracture and, in the absence of a credible explanation, this was likely to be an inflicted injury. They were all of the view that, as the September injury was more likely to have been non-accidental, when taken together with the unusual features of the August injury, this increased the likelihood of the August injury also being caused by an inflicted event.
  5. When giving their oral evidence, what had appeared to be a large measure of agreement between the experts did, due to the well targeted and effective questions put to them by all 4 advocates, fall away with respect to a number of important matters. This was not, in my judgment, wholly unsurprising given that each expert answered the questions from the perspective of their own particular specialisms and their own clinical and medico-legal experience. However, the divergence of views produced an additional element of complexity to the determination of the local authority’s allegations against the parents in this already complex case.


Head Injuries Caused by Low Level Fall

  1. For the local authority to succeed on the primary threshold findings it seeks, it has to prove on the balance of probabilities that the explanations provided by the parents are not how these injuries were caused. It is not for the parents to prove that the injuries were caused by the low level falls that they have described.
  2. When he gave his oral evidence, Mr Richards said the following [my note]: “This is a debate [whether low level falls can cause intracranial injury] that is lively at the moment. I was recently in a telephone conference involving a number of experts. Dr Cartlidge was involved and making a point about these cases and there were some rather heated exchanges about the possibility of low level falls causing serious injury. The vast majority of low level falls are not imaged. Of those that are, neuro-radiologists will say that low level falls, of the type N had, cannot cause multi-compartment bleeding and, therefore, the story given by the parents must be untrue. I, like Dr Cartlidge, say ‘can you say that on the data we have’? I say we don’t know.

A decade ago, apart from the babies that died, it was said that birth did not cause subdural haemorrhages. 3 research projects have now demonstrated that it does and it is now universally accepted that birth causes subdural haemorrhages in about 50% of babies. The medical profession were wrong before. Low-level falls may be similar. We can’t do routine MRI scans of children of this age as they have to be given anaesthetic to keep them still. The reason that these children are not imaged is because the majority just get up from a fall and have no injury. Very few have any disturbance for 1 or 2 days and even fewer for a longer period”.

  1. At paragraph 23 of his report dated 16 th December 2015, Mr Richards said “patients with such low level falls are rarely imaged on the grounds that there is no neurological disturbance from such falls, so we do not really know the number of low level falls which do cause fresh subdural bleeding. In those that are imaged it is extremely rare to identify fresh subdural bleeding.”
  2. In his report to the court, Dr Cartlidge said, at page 19, ” It is probably very unusual for such a short-distance fall to cause subdural bleeding, although I agree with Mr Richards that it could be more common than currently appreciated since neuro-imaging might not be undertaken in such cases. I have professional experience of a similar low-distance fall causing subdural bleeding in two infants (findings of Family Courts). Initial symptoms in my experience are often akin to those seen in reflex­ anoxic episodes.
  3. When he gave his oral evidence, Dr Cartlidge said that children would usually stand with soft knees and if he did have that typical stance, and he had some saving reflexes, he would not perform what Dr Cartlidge described as a ‘matchstick fall’ (a straight fall backwards with a stiff body). Dr Cartlidge was of the opinion that by far the most likely response from a child of this age would be a bending of the knees and a fall onto his bottom. However, Dr Cartlidge went onto describe the circumstances of 3 cases he has encountered in his medico-legal work where the family court accepted that an injury had been caused by an accident or had not found the allegation of non-accidental injury to be proved. The detail given by Dr Cartlidge in his oral evidence was supplemented by a later e-mail that all advocates agreed I should consider. The details of the low-level fall cases referred to by Dr Cartlidge included the following:

1 case involved a 42-week old who fell about 65 cm from a bed. There was a brief acute encephalopathy (interference with the functioning of the brain), subdural bleeding over a cerebral hemisphere and in the posterior fossa (the part of the brain at the top of the brain stem underneath the cerebral hemispheres) and acute traumatic effusion (an acute effusion appears similar to chronic subdural haemorrhage on the initial CT scan (as black fluid) but is due to an acute tear/rent in the arachnoid membrane allowing normal cerebrospinal fluid (seen as black on CT scans) from the subarachnoid space to cross into the potential subdural space. This causes a black fluid collection of cerebrospinal fluid (CSF) in the subdural space due to recent trauma that mimics the appearance of an old subdural haemorrhage from a prior injury). There was subdural blood in the thoracic, lumbar and sacral spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

A second case involved a 35-week old who fell from standing (about 70 cm). There was acute encephalopathy after initial crying for some 2 minutes and a large subdural haematoma (space-occupying). There were also retinal haemorrhages. The Family Court found the injuries to be accidental.

In the 3 rd case a 52-week old fell from standing (about 70-75 cm). There was mild or possibly absent acute encephalopathy. Subdural bleeding was present over a cerebral hemisphere and in the posterior fossa. Acute traumatic effusion was present. There was subdural blood in the lumbar spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

  1. I must decide the facts in this case on the evidence that I have heard about this child and not be swayed by comparisons to other cases involving different children and different facts. However, Dr Cartlidge’s purpose in highlighting these other cases was to provide clear examples to support his opinion that children can suffer what he described as ‘nasty intracranial injuries’ when falling from standing.
  2. At page 21 of his report, Dr Sprigg says “Subdural haemorrhages may occur following a known traumatic event involving a significant impact, e.g. being dropped forcibly onto the baby’s head from a significant height or hitting a hard object at speed. In older children they can occur during accidents -eg getting knocked over by a car. They are exceptionally rare from low-level domestic falls in infants. The site of bleed in accidental injury is usually physically related to the site of impact over the cerebral hemisphere. Subdural bleeds in non-accidental injury are more often over both hemispheres and may also be seen in the posterior fossa near the cerebellum near to the craniocervical junction. This is a rare site for accidental trauma”.
  3. At page 13 of his report, Dr Sprigg sets out “the finding of posterior fossa bleeding is more commonly seen in non-accidental head injury (NAHI) but it is recognised in significant accidental impact to the back of the head”.
  4. In his oral evidence, Dr Sprigg told me that the bleeding seen on the scans was consistent with a shake or an acceleration/deceleration event. He said that there was bleeding over both sides of brain and at the base of the brain. His evidence was that this is a pattern that is commonly seen in shaking cases but it can also occur if there is a significant bang to the back of the head.
  5. It was Dr Sprigg’s opinion that the bleeds found on 11 th August 2016 [the August injury] could have happened by a short fall but it would be uncommon. When cross-examined by Ms McFadyen, Dr Sprigg told me [my note]

“A fall to the floor as described is acknowledged as a mechanism that can cause this intracranial injury. Most children would not suffer any injury from such a fall. Some may suffer a skull fracture. It is uncommon to find bleeding over both hemispheres and at the cerebellum but it is possible. If the history had been that he fell on his forehead, I wouldn’t agree that the explanation was consistent but as he fell onto the back of his head, where all the veins gather and is an area vulnerable to injury, it is a credible account. Had this occurred at our hospital, it would have been said that this was feasible”.

  1. Having heard all 3 experts give their oral evidence, I formed the clear impression that they were each open to the real possibility of such low level falls, of the kind described by M and F as occurring on 9 th August 2015, causing the intracranial injuries seen on the 11 th August scans. Indeed, Mr Richards and Dr Cartlidge were more open to this kind of mechanism being an accurate account for the causation of such significant bleeding than they would have been in years past. There was no hint of dogmatism from any of the 3 experts; they were open to considering both the rare and the unusual.
  2. Mr Richards, Dr Cartlidge and Dr Sprigg carried this openness to considering the unusual and rare through to their consideration of the potential causes of the skull fracture discovered on 14 th September.
  3. In his report dated 24 th November 2015, Dr Sprigg provides a detailed account of the possible causes of skull fractures. He describes:

“A skull fracture is commonly due to a forceful impact. This may be due to the head hitting something hard, or a hard object hitting the head with significant force. An infant may have an accidental skull fracture but this depends on its level of mobility. For example, a two month old baby is not sufficiently mobile to self inflict a skull fracture, but a ten-month old that is crawling and falls downstairs might self inflict a skull fracture. An infant’s skull is flexible and tends to bend rather than fracture. It takes significant force to fracture an infant’s skull. As a generalisation under 1-2% of infants will sustain a skull fracture if they are dropped from below adult waist height. However, if the fall is from a greater height this is more likely to produce a fracture than a low level fall. When the fall is onto a hard surface (eg concrete or laminate flooring) versus a more compliant surface (eg carpet with under-felt over floorboards) then the harder surface increases the chance of fracture. A free fall (drop) involves less force of impact than if a baby is thrown down. Occasionally skull fractures occur related to birth. They are uncommon, but have a higher incidence in a difficult forceps delivery than ventouse or than in normal vaginal delivery of a normal sized baby”.

  1. When he gave his oral evidence, Dr Sprigg was of the opinion that either fall described by M (from sitting or from standing) [the September injury] would be unlikely to cause this skull fracture but could not be excluded as impossible. When answering questions from Ms McFadyen, he told me “If this was an isolated event and the history was that he had fallen over to the right and had come straight into casualty, it would be accepted as an accidental event. There is a skull fracture rate of below 1 to 2 % if a fall is from below adult waist height but had he been presented quickly with a consistent history, the explanation might have been accepted”.
  2. Mr Richards’ mind was similarly open to the possibility of the fall as described by M being a possible cause of the skull fracture. He told me that a low level fall would be unusual for causing a skull fracture and a drop of about 82 cm is usually required to cause a fracture from research undertaken with deceased infants. However, he would not rule it out as impossible but it would be a very rare event.
  3. Similarly, Dr Cartlidge would not rule-out any event as being impossible but was more sceptical that the simple fall, of either type described by the mother, would cause a skull fracture. It was put to him that it may have been that N fell and hit his head on the kerb. When considering this scenario, Dr Cartlidge said [my note] “the right side of the head is the site of the fracture. The shoulder is in the way and for the shoulder not to be in the way, I struggle to see how the right side of head would bear the full brunt of the force of the fall but if you get over that and the head pivots over his neck and hits the edge of the kerb, that could cause the fracture”. That was about as close as Dr Cartlidge would be drawn toward accepting that the fall described was, of itself, a possible mechanism.
  4. Having considered the fall proposed for the September injury in isolation, each expert relied on important contextual facts as indicating that the fall described on 6 th September 2015 would not have caused the fracture to N’s skull.
  5. Establishing a timeframe for the causation of the skull fracture and identifying whether the evidence reasonably excludes the 6 th September, a date some 8 days before the fracture was discovered on the scans as a day within that timescale, is a crucial matter for the court to consider when determining whether the local authority has proved that this alleged fall was not responsible for the skull fracture.
  6. When looking at the timing of skull fractures, there was no dispute between the experts as to limits of radiological evidence. Dr Sprigg described in his oral evidence that once a skull fracture is present, it can be seen for 3 to 6 months on the x ray, as there is no healing periosteal reaction. He said that the fracture can only be said to be recent if there is swelling present over it and that swelling is present for around 7 to a maximum of 10 days. The identification of scalp swelling, what type of scalp swelling was present and how long a swelling would be present became an issue between the experts upon which they did not agree.
  7. In addition to the identification of swelling, all 3 experts agreed that the clinical presentation and the clinical history was crucial in identifying a reliable timescale for the causation of a skull fracture. The immediate pain reaction of a child was a matter upon which the experts agreed however, the duration of a visible pain reaction when touching the site of injury, and its relevance to the timeframe for the injury, was not a matter upon which Mr Richards and Dr Cartlidge agreed.


In this case, the threshold was found to be satisfied in relation to the skull fracture in September 2015 (changed from previous inaccurate year on my part), the evidence of the parents being a relevant factor and the lies that they were found to have told about various matters.


There was not a finding that they had caused an injury in August by shaking the child and the Judge was satisfied by the parents explanation for this injury.

141.                      As already described, N was admitted to hospital on 9 th August 2015. M and F gave an account of him falling and hitting his head. The treating doctors at Birmingham Children’s Hospital accepted that the fall described was an acceptable explanation for N’s presentation.

  1. I have heard evidence from Mr Richards, Dr Cartlidge and Dr Sprigg and all 3 experts would accept that the fall described could account for the subdural bleeding found.
  2. Mr Richards says at §2.4 on E66 that there was no evidence of impact either clinically or on neurological imaging and he thought that unusual given that N’s behaviour was disturbed for so many days. He also thought it very unusual that such a low fall would, of itself, cause such significant symptoms. In his oral evidence he said subdural haemorrhages can have no symptoms at all and those seen on N’s scans were very thin and not compressing the brain. He said there was no other brain injury so, would not expect the haemorrhages to cause any symptoms at all, the symptoms have come from the way the brain was functioning and it was not functioning right with for 5 or 6 days. It was Mr Richard’s opinion that such a level of disturbance would require a harder bang on the head. He said that he would only expect to see disturbance of brain function of 24 to 48 hours so disturbance for longer would be consistent with a harder level of force. He said it was very very unusual if this was caused by this the low level fall.
  3. Dr Cartlidge and Dr Sprigg in the expert’s meeting on 11 th February and in their oral evidence acknowledged the unusual features of the case as outlined by Mr Richards but all 3 experts accepted the fall described as a possible mechanism for N’s presentation.



       I understand the approach taken by the experts that the unsatisfactory nature of the explanation given by the parents for September injury increases the likelihood of the August injury being an inflicted event. However, I have had the advantage of seeing MK give evidence. This was a witnessed fall and not, in my judgment, an event that has been invented. I find that there is no evidence of any other intervening event that has caused this injury and the local authority is simply speculating that M must have injured N at some point overnight or during the day on 10 th August. N’s presentation was consistent with a pattern recognised by Dr Cartlidge and although the experts could not exclude a 2 nd event, they were of opinion that one event was the most likely explanation. I accept their expert opinion and find that the one event that was witnessed by MK caused this August injury.


Guardian neutrality at fact finding hearing – is it right, wrong, or are you neutral about that?

A twitter follower, @dilettantevoice put this one in front of me.

Cumbria County Council v KW 2016

It is a case of a suspected head injury, with the usual classic triumvirate signs.  The case is interesting, from a legal perspective, because of paragraph 58

Having considered the legal framework and surveyed the broad landscape of the evidence I turn now to my findings. I record that the Guardian has thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child’s lawyer and his Guardian, has been emphasised regularly see: GW and PW v Oldham MBC [2005] EWCA Civ 1247; Re U (A Child) [2005] 2 FLR 444; Islington LBC v Al-Alas and Rway [2012] 2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact finding process. A position of neutrality motivated solely by desire to appear independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view


That isn’t part of the ratio, so isn’t a binding proposition, and you can see that Hayden J even says at the end that he knows that others take a different view.  It is a tricky issue. I’m firmly of the view that the Guardian has an important part to play in a fact-finding hearing, and it isn’t (as some think) a “Deckchair brief” – the Guardian and their representatives have to make sure that they do whatever they can to assist the Court in establishing the truth of what happened to the child – to make sure that the right documents are obtained, that the right experts are asked the right questions, and that all of the proper issues are investigated by the Court. It can, therefore, be a very tough brief, since rather than having a set of questions prepared in advance, the lawyer has to be flexible and fluid and extremely on top of all the detail and attentive to how the evidence develops.

It is vitally important for the child, and their siblings, that the Court comes to the right conclusion – either because the child has been harmed and needs to be kept safe OR because the allegations are not correct and the parents don’t pose a risk and there’s a danger of the child being wrongly separated from a parent. In representing the child, you obviously want that decision to be right and for all the important evidence to be drawn out.

Whether at the conclusion of all of the evidence and in making submissions,  as the Guardian here felt the Guardian should stay neutral, or whether as Hayden J thought the Guardian should pin their colours to the mast, is very difficult.

Looking at things logically, if the Guardian hasn’t played a part in the direct collection of evidence (i.e is not a witness of fact, but of opinion), then is his or her view actually significant? On causation, I mean. Clearly on what risks flow if the allegation is proven, and what should happen next, the Guardian’s opinion is vital. But if all the Guardian is doing is saying, having heard all of the evidence, I believe that mother didn’t do it, or that mother did it, how does that really help the Judge?  So, I’d tend to agree with the Guardian here. I’m sure if the Guardian had very strong views either way and wanted to put them in submissions, that would be okay too, but just of limited evidential value.  Is it wrong to remain neutral though, if that’s the Guardian’s preference?   At a fact finding stage, I’d say that it isn’t wrong.  You can follow the professional obligation to be the voice of the child without making your own quasi-judicial view of the evidence.


[If the Guardian is a witness of fact – i.e he or she has some factual information to provide about parental presentation or the relationship observed between parent and child or inconsistencies in accounts they gave to the Guardian, then I think it is more incumbent to come off the fence]


In broader terms, this is a case where the medical opinion was that the medical evidence alone would not determine the case. The medical evidence alone could not rule out non-accidental injury, nor could it rule out a benign explanation.  (As the Judge later explained, that did not mean that each of those possibilities was equally possible just that neither was impossible)


“All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.

In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury).”

There have been quite a few reported cases where the medical evidence points to non-accidental injury but the Court is satisfied from the parents explanation that the parents did not injure the child and makes no finding of abuse. This one is the other way, where the parental evidence  particularly the mother’s evidence and the text messages that she was sending, led the Judge to conclude that the child had been injured by the mother.

An unusual element is the raising of the Japanese Aoki research on head injuries. This is research suggesting that the classic triumvirate can present in an accidental fall from a fairly small height and is thus generally accidental.  This research is not accepted by experts outside of Japan (even the many doctors who suggest that shaking injuries are caused by less trauma than commonly supposed don’t subscribe to it.)

  • as the medical profession has also impressed upon me in the past, if low level falls in infants were associated with SDH, retinal haemorrhages and/or transient cerebral irritation or encephalothopy then such might be seen clinically, they are not. This is the primary basis, as I understand it, upon which the medical profession considers it unlikely that low level falls cause fresh subdural and retinal haemorrhaging. Moreover, as Mr Richards identifies, the scanning of children following relatively minor trauma supports the opposite view, i.e. that such is unlikely to cause retinal or subdural bleeding. Mr Richards develops his analysis thus:

“On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.

2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan.”

  • It is my understanding that the Aoki (1984) research is regarded by mainstream medical practitioners as deficient in its technique, methodology and professional objectivity. I can think of no case in the last 20 years (in the UK) where this research has been relied on. Mr Richards articulates the central criticism made of the research as a cultural resistance, in Japan, to the very concept of non accidental injury. He does not, however, directly associate himself with those criticisms. Indeed he asserts that the Japanese authors maintain their position. I am surprised that this paragraph has been included within the report neither can I understand what it is intended to establish by scientific reasoning.


I haven’t seen the Aoki research cited in any shaking injury or head injury case either, so it was new to me.  It didn’t go down very well.


Whilst there is undoubtedly a place to stimulate dialectical argument on these challenging issues, it is not in an expert report, in proceedings where the welfare of children is the paramount consideration. Whilst the Court must review the differential diagnostic process in order to reach its own conclusion i.e. ‘diagnosis by exclusion’ based on ‘the complete clinical scenario and all the evidence’ (see Dr. Newman, para 14 above) and though it is important to recognise the inevitable ‘unknowns’ in professional understanding, these important points are weakened, not reinforced, by elliptical references to controversial research. In addition, there is a danger that social work professionals and others might misinterpret the information in such a way as to grant it greater significance than it can support. Ms. Heaton QC, on behalf of the mother, distances herself from this paragraph entirely and places no reliance on it. She is right to do so.



Though the Judge made the findings of fact against mother, he declined to make final orders in this case, allowing instead a window of opportunity for work to be done with the parents and specifically for mother to have the chance to reflect and potentially make admissions that would reduce the risks to a manageable level. I think that’s the right approach – I worry about the rigidity of 26 week limits being applied in these cases, just as I worry about Judges rigidly following Ryder LJ’s Court of Appeal line about not having fact finding hearings separately to final decision in all but the most serious of injuries. A reflective space can make a significant difference for families in such cases.

Obtaining an expert report without court permission


A quirky case from the pen of Her Honour Judge Lazarus.  [We have previously seen Her Honour Judge Lazarus in the decision in the case about the foster carer who was abusive towards the mother who tape-recorded her, and in the s20 case where compensation of £40,000 was ordered, in both cases the Judge being very critical of the Local Authority.]


As a general principle, if you want an expert in family Court proceedings, you need to get the permission of the Court first. Showing an expert any documents before the Court has given you that permission is a contempt of Court and if you go by the back door and pay for a report without the Court’s permission, you may not be able to rely on it. So it would be  a waste of your money.

This particular case involved an expert called Dr Lowenstein, whose name rang a bell with me.


He was involved in the massive case where the Mail on Sunday tried to claim that they had an article 8 right to be friends with a 94 year old woman who had previously been the journalist’s source, where the Court of Protection had put a restriction in place on the Press talking to her until a determination of (a) her capacity and (b) whether that was in her best interests.


These are the passages about Dr Lowenstein in that case, Re G (an adult) 2014

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.




  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.




  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.




  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.




  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.



Well, you know, that could just be bad luck. Even Babe Ruth struck out once in a while, and if you were assessing whether he was a good baseball player when you only saw one of his off days…


But it isn’t inspirational stuff.  He hadn’t read the documents, didn’t understand the tests and principles to be applied, wasn’t an expert in the field of law he was ostensibly reporting in and didn’t take proper notes. And he hadn’t been instructed through the Court process, but through the back door.


The new case is MB (Expert’s Court Report) 2015


The mother in this case made an application to discharge Care Orders relating to a child who is now 8. She came to Court, bolstered by the expert report prepared on her behalf by Dr Lowenstein.


I’m just going to confine myself to exactly what the Judge had to say about Dr Lowenstein.



  • Within the recent history the mother and her partner Mr P have undergone a parenting assessment conducted by Mr Ian Scrivens and dated the 20th March 2015, initiated by the Local Authority, Mr Scrivens being an experienced social worker. And he undertook that assessment over a number of sessions with Ms MB and Mr P, and indeed met with H at his foster placement, and used the Department of Health guide for social workers undertaking a comprehensive assessment.
  • That assessment does not recommend that H is returned to his mother’s care and that, while there are some positives, there are ongoing concerns and, indeed, H’s enhanced needs would suggest that the couple would find it difficult to meet those needs in the light of their own difficulties.
  • Ms MB has told me today that, following receipt of that report, she and Mr P attempted to challenge this by seeking to dispute it with the Local Authority and to bring their concerns to the attention of the independent reviewing officer, presumably at looked after children review meetings for H.
  • She also tells me that she visited her former solicitor and was told that she could perhaps seek a further report from another expert, and she also tells me that she then approached Dr Lowenstein in an attempt to understand some of the issues and discussed the parenting assessment with him. She further tells me that Dr Lowenstein himself then suggested and, as she put it, offered to do a court report for them. And she confirmed, upon my careful enquiry, that it was he who had suggested this. I note of course that this report was obtained prior to the start of any of the proceedings that I have now before me, it being dated May 2015.
  • I note that Dr Lowenstein practices from Southern England Psychological Services based at Allington Manor, Eastleigh, Hampshire, and puts himself forward as, and I am reading from the third page of his report: a chartered psychologist and associate fellow of the British Psychological Society, as a qualified clinical and educational psychologist, and that he also works in the area of forensic psychology and he is registered with the health professional council, HCPC, practising in the areas of clinical, educational and forensic psychology, and having published widely in both clinical and educational psychology as well as forensic psychology. He sets out details in an extended profile in appendix 1 to his report.
  • He sets out his background training from an Australian university and a PhD from London University, that he has clinical training and a diploma in clinical and educational psychology from the Institute of Psychiatry at the Maudsley Hospital, which qualifications were obtained in the 1960s, and that he held a former post as the Principal of Allington Manor, a specialist unit for disturbed young people. He has formerly been Chief Educational Psychologist for Hampshire and has advised and lectured in various parts of the world on the subject of setting up such centres.
  • He has twice been elected to serve as Director of the International Council of Psychologists and was their President from July 2011 to 2013, and claims to be currently practising as an independent expert witness for the courts and to write reports in the areas of educational and forensic psychology as well as in personal injury and criminal cases. He claims to work and advise in the area of family problems such as parental alienation, and he also claims to have a private practice where he treats people for a variety of psychological problems.
  • There are a number of concerns that occurred immediately to the Local Authority, to the Children’s Guardian and indeed to the Court, evident from what he calls his ‘psychodiagnostic report’ on Ms MB.
  • The first such concern is that he claims, under the very first heading, that this report is for the court and is carried out by an independent expert witness of many years experience. However, there were no ongoing court proceedings at the time. I am very concerned that he suggested that a ‘court report’ should be obtained, and suggested it to the mother of a child in foster care, and a mother who evidently has ambitions for her child either to be returned to her care or to have contact with that child and, as such, is vulnerable to any suggestion that she might be assisted by these means, notwithstanding that there were no court proceedings on foot at the time.
  • A second concern is that he purported to carry out a ‘court report’ without being granted permission to see nor having sight of any of the previous court papers, without the required process of permission from a court within proceedings being sought, and without there being an agreed letter of instruction approved by the court setting out the factors upon which he ought to comment. This is in obvious contravention of the relevant provisions found in the Family Proceedings Rules 2010 r.25, Practice Direction 25A-F and the Children And Families Act 2014 s13, and falls foul of the very clear guidance provided in Re A (Family Proceedings: Expert Witness) [2001] 1 FLR 723. Experts should not accept instructions unless explicitly informed that the court has given them its permission and of the terms set out in the court order permitting their instruction.
  • And further that he did this when he either ought to have known or knows very well, given the claims he makes in relation to his expertise, his experience, his qualifications and his apparent provision of court reports, that there was a very grave risk that such a report, prepared in this way, would be wholly inappropriate for the purposes of court proceedings and would therefore risk not being admissible within those proceedings and/or of having very little weight that could be sensibly attached to it.
  • I further note that his report mentions, at paragraph 1.7, that the mother has been improved to a considerable degree as a result of the psychotherapeutic sessions she has had with her psychotherapist, and he goes on in his conclusions, at page 10, paragraph 3, and page 11, paragraph 9, to confirm his opinion that she has undoubtedly been helped considerably by her psychotherapy and has learned a great deal as a result of her psychotherapeutic sessions. However, he also states that unfortunately there is no report from the psychotherapist as to her view of how her client benefited or not from those psychotherapeutic sessions.
  • It is therefore evident on the face of this report that Dr Lowenstein is not only, in the same report, acknowledging the lack of information from the psychotherapist but also purporting to be able to come to conclusions in relation to its impact, notwithstanding the lack of that information, and also notwithstanding that he had no information as to how the mother presented prior to such sessions. It is, therefore, a report that within its own content betrays inconsistencies and internal contradiction, and an obvious lack of rigorous analysis.
  • Additionally, Dr Lowenstein appears to be primarily an educational and general psychologist as revealed by a close reading of his qualifications, posts and experience. As such his instruction would not have been supported by the Local Authority or the Children’s Guardian in any event for that reason, and the Court would be most unlikely to accept that he would be the appropriate expert to consider mother’s complex personality issues.
  • I find this report, and the mode by which it has been suggested to the mother and has come about, to be highly unsatisfactory, likely to be in breach of professional codes of conduct, certainly lacking in any observation of the rules that apply to obtaining court reports within family proceedings, and that it is not a ‘court report’ as Dr Lowenstein claims and would not be admissible. In the circumstances, I gain the very strong impression that the vulnerability of this mother may have been exploited by Dr Lowenstein, who charged her £550 for this report in the circumstances which I have just outlined.
  • I am also aware that Dr Lowenstein has been criticised in another Court by another judge in very similar circumstances.
  • It is for these reasons that I intend to obtain the transcript of this judgment, and I have asked the Children’s Guardian to ensure that the transcript is sent to Dr Lowenstein so that his attention is drawn to the significant concerns expressed by this Court about his failure to observe the rules and requirements of reporting for the court and the inappropriateness of the steps that he has taken in this case and, indeed, the inadequacies of his report’s content, even on a superficial reading, that are evident to all concerned.
  • I am also going to invite the Children’s Guardian to consider reporting this matter to the professional bodies that Dr Lowenstein claims to belong to, and I also intend, in an anonymised version of this judgment, to publish this judgment, albeit that the names of professionals involved, and Dr Lowenstein in particular, will not be anonymised in accordance with guidance and case law. And, as I say, I consider Dr Lowenstein’s approach to this Mother’s situation to have failed in any purported attempt to assist her but to have been inappropriate and potentially exploitative, and certainly of no help to her within her applications



To see if Dr Lowenstein has been involved in any reported family cases favourably, I did a search on Bailii.


This one, Re F (a child) 2014, he was involved tangentially, again, having reported outside of Court proceedings, but it isn’t a favourable mention.

Dr Adshead was asked about the past reports of Dr.  Lowenstein  and Dr. Holt. Dr. Adshead told me that where she disagrees with Dr  Lowenstein , is that he seems to have a rather “old-fashioned view” of personality disorder, namely that you either have it or you do not . In Dr. Adshead’s opinion, it is perfectly possible to have some degree of personality disorder and become better or worse and that there is a spectrum of symptoms.


Again in this one, Dr Lowenstein’s report came before the Court despite him not having been instructed or given permission to see the papers


Re JC (Care Order) 2014


  On the 11th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr.  Lowenstein .  The father indicated that he was referred to Dr.  Lowenstein  by his G.P.

28.              At the hearing on the 21st September 2012 father had initially requested that Dr.  Lowenstein  undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr.  Lowenstein  was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr.  Lowenstein  had been instructed was discussed at the case management conference on the 12th December 2012 and father made an application for further assessment of him by Dr.  Lowenstein  because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr.  Lowenstein  and ruled against the father’s application for a further assessment.

There is a 2006 Court of Appeal case where he was mentioned as a possible expert but the application wasn’t pursued (so in that one, he hadn’t reported outside of Court)

Re B ( a child) O (children) 2006

  • Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: –


“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr  Lowenstein , the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

And in the Court of Appeal in 2003 – again, there’s no suggestion here that Dr Lowenstein did anything wrong, but it is an unusual order for a Court to have had to make

Re G a child 2003

  • There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:


“The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig  Lowenstein  or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court.”

And another Court of Appeal case in 2000 – here, Dr Lowenstein had been properly instructed as a Court appointed expert (I note here as a ‘forensic psychologist’ ) and the Court had rejected his evidence (which doesn’t mean that there’s anything wrong with it, just that the Court disagreed with his report in that particular case)

Re L  and Others (Children) 2000

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and His Honour Judge Milligan made the order. It appears that the parties´ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr  Lowenstein  who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr  Lowenstein  has been closely associated with recognition of this syndrome. He recommended therapy, at least 6 sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr  Lowenstein . In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr  Lowenstein  is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents´ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.
The judge, in my view, was entitled to reject the report and the oral evidence of Dr  Lowenstein , even though the psychologist was jointly instructed. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 AC1 at page 80 that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said
“I cannot accept the effect of what Dr  Lowenstein  has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that ´long term psycho- analytically informed therapy in the order of years rather than months´ is the treatment of choice.”

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr  Lowenstein . The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

And then yet another Court of Appeal case in 1999  – this time, the report having been obtained outside of Court proceedings and without the permission of the Court.

Clark v Clark and Another 1999

By a summons of 1st March the wife sought to admit fresh evidence consisting of a report from Dr  Lowenstein , a clinical psychologist, a statement from Detective Constable Shirley and her own affidavit. By a later summons she sought to introduce reports from Dr Mathews and Dr Fraser Anderson. It was agreed at the outset that all this additional evidence would be received by the court de bene esse and that any ruling on its admissibility would be deferred to final judgment. I will therefore deal straightaway with this additional evidence. The affidavit from Dr  Lowenstein  hardly meets any test for the admission of fresh evidence. He is a clinical psychologist who prepared a written report on the wife having spent several hours in her company on 8th February 1999. In a neat way this manoeuvre illustrates the extent to which the wife inhabits a world bounded by her egocentric and manipulative will unconstrained by any objective reality. Dr  Lowenstein  gave the opinion that he did because Mrs Clark restricted him to her version of events omitting to inform the psychologist that that version had been comprehensively rejected in High Court proceedings. The statement from the detective constable has greater validity in that it contradicts assertions made by the husband in letters to his solicitors in April and June 1995 to the effect that the detective constable had been obstructed by the wife in investigating a report from the husband of the theft of a picture from Wellow Park. There is perhaps just sufficient justification to permit the admission of that evidence for further investigation. As to the reports from Dr Anderson and Dr Mathews, in my opinion they fail to meet any test of admissibility. Dr Mathews’ undated report, but written in this month of April, only contains what was before the judge in her manuscript medical notes. The report from Dr Fraser Anderson simply relates to the husband’s condition in May 1997. It is dated 23rd November 1998 and it is admitted that it was requested prior to judgment. There is nothing within it which would in any way have expanded the judge’s knowledge or affected his conclusions. Consequently I would admit the statement from the detective constable and reject the three medical reports. I would add that even if admitted their contents would not have assisted her case

I will give  a caveat. There may well be many cases where Dr Lowenstein has provided a report in family Court proceedings where the Court found it useful and helpful and relied upon it, even thanking him for the valuable report. There may be hundreds of such cases. There just aren’t any reported ones. Not all cases get reported.


Intermediary, fair trial and Legal Aid Agency


The High Court case of West Sussex CC v H and Others 2015 throws up an interesting issue.


This was a fact finding hearing, where the central allegation was that either mother or her boyfriend W, had caused a brain injury to a child who was two years old. The injury had at the time been life-threatening.


This is one of the most serious sorts of cases that come before the family Court. A finding that mother had caused that injury or failed to protect the child would have serious consequences for this mother’s prospects of keeping the children and possibly of any future children she might have. Also, the process itself would involve a lot of documents, some complicated issues and really forensic dissection of the events that happened that night, in a lot of detail.

The mother had undergone a cognitive assessment by Dr Nigel North, and he had concluded that she would need the assistance of an intermediary when giving evidence.

Intermediaries are used in criminal proceedings, and they play a very important part in making sure that a vulnerable witness can give the best evidence that they are able to.


The Registered Intermediary, having taken the intermediary oath, assists during the giving of evidence. They sit alongside the witness in the live link room (or stand next to them if they are giving evidence in court) in order to monitor communication. They intervene during questioning when appropriate and as often as appropriate in accordance with the ground rules and the recommendations in their report.   [taken from ]


However, though that was a clear recommendation and not challenged by anyone, she had to give evidence without an intermediary as the Legal Aid Agency had refused to fund one.


  1. The case was before me for case management on the 24th April 2015 and following the orders made on that day it was listed to be heard in July 2015. In addition to the complexity of the medical evidence there were concerns about the ability of M to fully participate in, and understand the proceedings because of a report by Dr Nigel North (a psychologist) dated the 6th March 2015 which recommended the use of an intermediary. The solicitors for M had applied for public funding for an intermediary assessment which was refused by the Legal Aid Agency (LAA). There followed attempts by the solicitors to appeal against this decision which were unsuccessful. By the time the solicitors approached the court for approval for funding an intermediary without a further assessment to support M during the trial in July there were none available to come to court.
  2. Given her history, which was never in dispute, it is not clear to me why it was considered necessary to have a further assessment by qualified intermediary except that Dr North is not an intermediary himself; the stance of the LAA did not assist when coupled with the insistence by Communicourt that they carry out an assessment separately from supporting Y at court. This led to the refusal of funding for that initial assessment. There is undoubtedly a pressing need for clear guidance and rules similar to those in criminal proceedings when it comes to the treatment of vulnerable witnesses. It is to be hoped that the proposed addition to the Family Procedure rules will come in to force sooner rather than later.


There would not have been a problem obtaining an intermediary in a criminal court*, but in a family court if the Legal Aid Agency say no, that’s the end of it.  [*I’m not a criminal lawyer, so I might be utterly wrong here and if someone more knowledgeable tells me otherwise, I’ll amend.  Of course in a criminal case, the Judge could throw the trial out for abuse of process if the LAA refused to provide an intermediary where one was necessary, and that’s a bit more difficult in family proceedings. You don’t want to decide family cases and the safety and future of children on a ‘technicality’]


Those involved in the case worked with the Judge, Russell J,  to come up with the fairest solution that they could.


  1. On the first day of the fact finding trial I heard a ground rules hearing to decide how the case could progress without the assistance of an intermediary taking into account the recommendations which had been made by Dr North. It was agreed that the trial could go ahead with frequent breaks to allow M to have time to consider the evidence broken up into shorter more manageable sections. There were to be breaks every 30 minutes or more often if needed. M’s evidence was to be similarly divided; she was to be asked short questions and cross-examined by one counsel only, who would agree the area of questioning with other counsel. Counsel for the local authority undertook this task with the assistance of the guidance provide by the ATC in their toolkit for family proceedings. As there were seven files of evidence the documents that M was to be referred to during her evidence were placed in one file; in addition it was agreed that she would be supported by someone she knew from her solicitor’s firm to find pages or if she needed any other assistance.
  2. M’s own mother L is a respondent to these proceedings as she had originally been named as a possible perpetrator and is closely concerned with the local authority’s future plans for the care of Y and X. She was able to offer M additional support throughout the hearing.



[The outcome of the case was that the Judge found that mother’s boyfriend W, had caused the injury but more out of carelessness or recklessness than by any intention to hurt the child  :-   I do not consider that there is evidence to support any suggestion that the impact was deliberately inflicted and consider it more likely that it was a reckless and foolish action taken by a young man who has no experience as a parent, primary or main carer of a child who is still very young.   There was no finding that the mother had done anything wrong  M’s conduct since that night has been congruent with a parent seeking an answer to what has happened to her child and has not been self-serving or defensive. ]



Strategy meetings


If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.


In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015


they took on a particular significance.


A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.


Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.


At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.


After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.


  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.




If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.


The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.


I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.


As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.


Anyway, back to the particular case.


Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)


The argument was twofold :-


1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.


The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.


The second point was developed more fully.


  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.


More detail about the Strategy Meeting followed



  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.



That did make matters difficult.  The Judge distilled the HRA argument into a central question


To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?


The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.


  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.


The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)


I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.


For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.



Experts and fairness

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.


This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.


As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.


Some very quick practice points:-


1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.


What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.


The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)


Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).


3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

  1. A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

  2. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.



  1. The written reasons for the decision given by the magistrates are as follows:

    “We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

  2. That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.



5. Protection for litigants in person


The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.



The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.


  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.