Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.

Oldham MBC v GW, PW and KPW [2007] EWHC 136 (Fam)

Digging a little further into the archive, this case illustrates the sort of difficulty one can get into when dealing with cases at the cutting-edge of medical knowledge. Though few of us will expect to encounter such extraordinary circumstances, it is well to consider this judgment in its recommendations at paragraphs 91 to 100 which have more general application to the role of experts.

This was a particularly tragic case as paragraph 76 illustrates, but the court refused to criticise any one party, preferring to suggest that there was a general, systemic failure of the system to serve justice. Though one can well understand the court’s wish not to put the physician whose diagnosis caused the wrongful removal of the child from her parents, it should in my view have answered the question posed at paragraph 79(ii) explicitly.
Essentially a baby presented with highly unusual symptoms in that there was no visible indication of what might otherwise be thought to be brain injury through abuse. Though the parents appeared to be beyond suspicion, the doctors quite properly referred the case to appropriate specialists, resulting eventually in the opinion from an eminent expert that non-accidental injury could not be ruled out. By reason of his expertise and seniority, none of the other doctors who had formerly not thought this to be an option felt able to disagree.

There were three problems though: firstly the expert himself had very little experience of what he was observing but did not say so; secondly he was simply unaware of research in the field, later confirmed by a professor whose expertise was sufficiently rare for him to have to be traced to his institute in Sweden; thirdly, he expressed himself too absolutely by saying that the presentation was pathognomic (i.e. illustrative of cause by) NAI.

What we learn from this is to be eternally sceptical of evidence. The third point was characterised by the court as the expert having taken upon himself the role of decision-maker, compounded by the court not realising that it had failed to guard that role at its own. It seems to me that there must be some criticism of the representatives in the case for allowing that to happen and rightly so: it is vanishingly rare that an expert can properly say that an injury or physical insult was caused by an event unless there is some supportive evidence (i.e. a witness saw a knife being used to stab) Experts should in the main be restricted to saying whether an observation is consistent with or not consistent with a hypothesis: the decision as to whether the whole evidence supports a finding is for the court alone.

Whether one can ever succeed in uncovering the second error described above is a matter of research and luck combined, but the first is a live issue in every case. One rarely encounters an expert in care proceedings who is not eminently well qualified in their discipline but it does not follow that they will be an expert in the particular symptoms/injury/circumstances presented in an individual case. The doctor in this case agreed on reflection that he could have more forcefully brought the unusual features of the case – that is, those which were inconsistent with his diagnosis – to the attention of the court. That he did not do so was accepted to have resulted from his human and professional wish to protect a child about whose diagnosis he could not actually be sure. This reminds us to invite an expert a) to reflect on their issue-specific experience and knowledge and b) to accept that they might not actually know the answer.