RE B (SEXUAL ABUSE: EXPERT'S REPORT) [2000] EWCA Civ 516

IN THE COURT OF APPEAL
CIVIL DIVISION
[2000] EWCA Civ 516Case No Case No:Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
RE B (SEXUAL ABUSE: EXPERT'S REPORT)
Before
Thorpe LJ and Jonathan Parker JSusan Hunter (instructed by Stone King) for the applicantNkumbe Ekaney (instructed by Montague Harris) for the respondentDate 22 February 2000
[1]THORPE LJ : There are proceedings in the Bristol County Court in relation to contact between a father and his daughter, F, who was born on 2 July 1992. The first contact order was made by consent on 5 October 1998 and provided for unsupervised contact for 4 hours each Saturday. The mother's support for that regime seems to have been inconsistent and after only two periods of unsupervised contact allegations of sexual abuse of F during contact visits were raised by the mother. It seems that those allegations were made on 16 November 1998 and in consequence both the police and the social services carried out an investigation. On 6 February 1999 the father was charged, amongst other things, with offences of indecency on F. However, all criminal charges against him were dropped in April 1999. Shortly before the prosecution was abandoned, F was referred by her general practitioner to a local child and adolescent consultant psychiatrist, Dr Bazeley-White. Dr Bazeley-White works in the Department of Child and Family Psychiatry in the North Bristol NHS Trust. She has been a consultant for 12 years and is experienced in working with children, young people and their families where there are concerns that children have been or may have been subject to sexual abuse. The purpose of the medical reference was to enable Dr Bazeley-White to treat F for disturbance that had been noted by her mother in the aftermath of these dramatic events in family life. It seems that Dr Bazeley-White arranged for an assessment meeting on 10 May 1999 and then further consultations on 6 July, 27 July and 8 September 1999. The father's solicitors had written on 25 May 1999 seeking the reinstatement of contact. That could not be achieved by agreement and on 24 June 1999 the father's solicitors stated that they would apply to the court to enforce the order. It was said that F was seeing a 'psychologist', and the father's solicitors put in question the wisdom of such an arrangement when court proceedings were pending. The application was issued on about 15 August 1999 and the father's solicitors immediately applied to the court for directions. No doubt in consequence of the issue of the application, the mother's solicitors wrote to Dr Bazeley-White on 25 August 1999 requesting her to provide a report. The final sentence of the first paragraph of the letter reads:
'We are sure that you have all the details of the case and we would be very grateful if you could prepare a report for us which would hopefully help support Mrs B in any forthcoming proceedings.'
Dr Bazeley-White prepared the report in response to that request. It is dated 15 September 1999 and it describes in detail the work that Dr Bazeley-White had done, presumably all of it therapeutic in character. It is to be noted that at the first interview with F, the doctor introduced anatomically correct dolls which were then undressed and used as an aid to elicit from the child a description of detailed sexual activity which she said she had experienced with her father. In identifying the adult with whom F had had these experiences, the doctor asked a large number of questions, many of which were in leading form. She ended her report by expressing her opinion that F had plainly been sexually abused by her father and that there should be no unsupervised contact in the future. In consequence of the production of that report, the father on an application to the court for directions came before his Honour Judge Ticehurst on 10 January 2000 with an application for leave to instruct an independent forensic expert. The judge refused that application and directed that Dr Bazeley-White be jointly instructed to prepare a further report. He also said that video interviews conducted by the police in November and December 1998 were to be disclosed to the parties, that Dr Bazeley-White was to have all the papers in the case, and that there should be further directions on 13 March 2000 before the judge with a time estimate of 30 minutes. He refused the father's application for permission to appeal. The only note of judgment we have is that taken by Miss Hunter, who has acted throughout for the father. The relevant passage is this:
'The difficulties with the instruction of Dr Bazeley-White were regrettable … The trial Judge will have the difficulty that it is a partial report. The appropriate way of dealing with it is for Dr Bazeley-White to be properly instructed and to see the father and all the papers … Dr Bazeley-White can prepare a further report and see all the papers. The application for the instruction of a further Psychiatrist is refused. Dr Bazeley-White can prepare a perfected report on a joint letter of instruction. Once the report is to hand then those instructed by the father may be of the view that Dr Bazeley-White is incapable of forming an objective view and then father's representative can come back to Court and a further report can be Ordered by an independent expert.'
The application for permission to appeal that ruling was renewed to this court and on 10 February 2000 I directed this oral hearing on notice. In preparation, Miss Hunter has filed a full and compelling skeleton, and this morning we have received a skeleton from Mr Ekaney who today represents the mother. It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert to report. If the mother's solicitors wished to meet the application of 15 August 1999 by asserting that F had been sexually abused on one or both of the unsupervised contacts in October 1998, it was surely incumbent upon them to put before the judge the outcome of the investigative interviews, properly conducted in accordance with the Memorandum of Good Practice, properly conducted by an experienced police officer and an experienced social worker jointly. The failure to adduce that evidence in response to the application of 15 August 1999 seems to me to be curious. Secondly, the mother's solicitors should have seen that it was quite impossible for Dr Bazeley-White to make any forensic contribution to the pending litigation. It was an error of judgment on their part to have instructed her to report. The letter that they wrote seeking a report ignores all guidance, which has been bountifully supplied by experienced judges of the Family Division, as to the importance of ensuring that any instructions for a forensic report are impartial and, wherever possible, are joint and agreed with the other side. A unilateral appeal to an expert for a partial report is something which should have disappeared from the litigation scene many years ago. I do not criticise Dr Bazeley-White for conducting an interview with F that immediately introduced anatomically correct dolls and then proceeded to a string of leading questions. Obviously, those characteristics are in clear breach of the guidelines that have been available to consultants, at least since the publication of the Cleveland Report. But her function was therapeutic and it may be that in her professional judgment that is what the child's therapy required. Where I criticise Dr Bazeley-White was in ever accepting instructions to prepare a forensic report. She should have had the experience and the judgment to perceive that she was disqualified from making any forensic contribution by the nature of her medical reference and by the nature of the work that she had done in response to that reference. The judge's discretionary conclusion that the deficiencies in Dr Bazeley-White's contribution could be remedied by some sort of fresh start on joint instructions is simply unrealistic. He should have perceived that flaws as profound as this are simply incapable of rectification. His order was plainly wrong and must be set aside. What concerns me is that this application was issued as long ago as mid-August 1999, and has not yet proceeded beyond the point of some initial directions. Applications for contact can be drained of the strength that they held at the date of issue by long delay. There are all sorts of problems in bringing this very difficult issue to a just conclusion as a result of not only the unfortunate instruction of Dr Bazeley-White, but also the resultant delay and the problems of providing the judge with reliable expertise at this distance from the origin of the allegations. It will be necessary to consider shortly what order should be made by this court in the exercise of its discretion in substitution for the flawed order made below. Careful consideration will have to be given to who at this stage should be instructed and what should be the ambit of his or her instructions. But we will hear submissions on that shortly. For all those reasons, I would grant permission to appeal; allow the appeal; set aside the order of the judge and in its place make such order as seems appropriate when we have heard further from counsel. JONATHAN PARKER J : I agree. Application for permission to appeal allowed. Appeal allowed. PHILIPPA JOHNSON Barrister THORPE LJ : There are proceedings in the Bristol County Court in relation to contact between a father and his daughter, F, who was born on 2 July 1992. The first contact order was made by consent on 5 October 1998 and provided for unsupervised contact for 4 hours each Saturday. The mother's support for that regime seems to have been inconsistent and after only two periods of unsupervised contact allegations of sexual abuse of F during contact visits were raised by the mother. It seems that those allegations were made on 16 November 1998 and in consequence both the police and the social services carried out an investigation. On 6 February 1999 the father was charged, amongst other things, with offences of indecency on F. However, all criminal charges against him were dropped in April 1999. Shortly before the prosecution was abandoned, F was referred by her general practitioner to a local child and adolescent consultant psychiatrist, Dr Bazeley-White. Dr Bazeley-White works in the Department of Child and Family Psychiatry in the North Bristol NHS Trust. She has been a consultant for 12 years and is experienced in working with children, young people and their families where there are concerns that children have been or may have been subject to sexual abuse.[2]The purpose of the medical reference was to enable Dr Bazeley-White to treat F for disturbance that had been noted by her mother in the aftermath of these dramatic events in family life. It seems that Dr Bazeley-White arranged for an assessment meeting on 10 May 1999 and then further consultations on 6 July, 27 July and 8 September 1999.[3]The father's solicitors had written on 25 May 1999 seeking the reinstatement of contact. That could not be achieved by agreement and on 24 June 1999 the father's solicitors stated that they would apply to the court to enforce the order. It was said that F was seeing a 'psychologist', and the father's solicitors put in question the wisdom of such an arrangement when court proceedings were pending.[4]The application was issued on about 15 August 1999 and the father's solicitors immediately applied to the court for directions. No doubt in consequence of the issue of the application, the mother's solicitors wrote to Dr Bazeley-White on 25 August 1999 requesting her to provide a report. The final sentence of the first paragraph of the letter reads:
'We are sure that you have all the details of the case and we would be very grateful if you could prepare a report for us which would hopefully help support Mrs B in any forthcoming proceedings.'
[5]Dr Bazeley-White prepared the report in response to that request. It is dated 15 September 1999 and it describes in detail the work that Dr Bazeley-White had done, presumably all of it therapeutic in character. It is to be noted that at the first interview with F, the doctor introduced anatomically correct dolls which were then undressed and used as an aid to elicit from the child a description of detailed sexual activity which she said she had experienced with her father. In identifying the adult with whom F had had these experiences, the doctor asked a large number of questions, many of which were in leading form. She ended her report by expressing her opinion that F had plainly been sexually abused by her father and that there should be no unsupervised contact in the future.[6]In consequence of the production of that report, the father on an application to the court for directions came before his Honour Judge Ticehurst on 10 January 2000 with an application for leave to instruct an independent forensic expert. The judge refused that application and directed that Dr Bazeley-White be jointly instructed to prepare a further report. He also said that video interviews conducted by the police in November and December 1998 were to be disclosed to the parties, that Dr Bazeley-White was to have all the papers in the case, and that there should be further directions on 13 March 2000 before the judge with a time estimate of 30 minutes. He refused the father's application for permission to appeal.[7]The only note of judgment we have is that taken by Miss Hunter, who has acted throughout for the father. The relevant passage is this:
'The difficulties with the instruction of Dr Bazeley-White were regrettable … The trial Judge will have the difficulty that it is a partial report. The appropriate way of dealing with it is for Dr Bazeley-White to be properly instructed and to see the father and all the papers … Dr Bazeley-White can prepare a further report and see all the papers. The application for the instruction of a further Psychiatrist is refused. Dr Bazeley-White can prepare a perfected report on a joint letter of instruction. Once the report is to hand then those instructed by the father may be of the view that Dr Bazeley-White is incapable of forming an objective view and then father's representative can come back to Court and a further report can be Ordered by an independent expert.'
[8]The application for permission to appeal that ruling was renewed to this court and on 10 February 2000 I directed this oral hearing on notice. In preparation, Miss Hunter has filed a full and compelling skeleton, and this morning we have received a skeleton from Mr Ekaney who today represents the mother.[9]It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert to report. If the mother's solicitors wished to meet the application of 15 August 1999 by asserting that F had been sexually abused on one or both of the unsupervised contacts in October 1998, it was surely incumbent upon them to put before the judge the outcome of the investigative interviews, properly conducted in accordance with the Memorandum of Good Practice, properly conducted by an experienced police officer and an experienced social worker jointly. The failure to adduce that evidence in response to the application of 15 August 1999 seems to me to be curious.[10]Secondly, the mother's solicitors should have seen that it was quite impossible for Dr Bazeley-White to make any forensic contribution to the pending litigation. It was an error of judgment on their part to have instructed her to report. The letter that they wrote seeking a report ignores all guidance, which has been bountifully supplied by experienced judges of the Family Division, as to the importance of ensuring that any instructions for a forensic report are impartial and, wherever possible, are joint and agreed with the other side. A unilateral appeal to an expert for a partial report is something which should have disappeared from the litigation scene many years ago.[11]I do not criticise Dr Bazeley-White for conducting an interview with F that immediately introduced anatomically correct dolls and then proceeded to a string of leading questions. Obviously, those characteristics are in clear breach of the guidelines that have been available to consultants, at least since the publication of the Cleveland Report. But her function was therapeutic and it may be that in her professional judgment that is what the child's therapy required. Where I criticise Dr Bazeley-White was in ever accepting instructions to prepare a forensic report. She should have had the experience and the judgment to perceive that she was disqualified from making any forensic contribution by the nature of her medical reference and by the nature of the work that she had done in response to that reference.[12]The judge's discretionary conclusion that the deficiencies in Dr Bazeley-White's contribution could be remedied by some sort of fresh start on joint instructions is simply unrealistic. He should have perceived that flaws as profound as this are simply incapable of rectification. His order was plainly wrong and must be set aside.[13]What concerns me is that this application was issued as long ago as mid-August 1999, and has not yet proceeded beyond the point of some initial directions. Applications for contact can be drained of the strength that they held at the date of issue by long delay. There are all sorts of problems in bringing this very difficult issue to a just conclusion as a result of not only the unfortunate instruction of Dr Bazeley-White, but also the resultant delay and the problems of providing the judge with reliable expertise at this distance from the origin of the allegations.[14]It will be necessary to consider shortly what order should be made by this court in the exercise of its discretion in substitution for the flawed order made below. Careful consideration will have to be given to who at this stage should be instructed and what should be the ambit of his or her instructions. But we will hear submissions on that shortly.[15]For all those reasons, I would grant permission to appeal; allow the appeal; set aside the order of the judge and in its place make such order as seems appropriate when we have heard further from counsel.[16]JONATHAN PARKER J : I agree. Application for permission to appeal allowed. Appeal allowed. PHILIPPA JOHNSON Barrister[17]The permission for BAILII to publish the text of this judgment was granted by Jordan Publishing Limited Their assistance is gratefully acknowledged.

Cited in 2 later judgments