‘AND UPON Professor Mangham currently being the only consultant osteoarticular pathologist approved by the Home Office to undertake pathology reports in that field and Professor Mangham having indicated that his report will not be available for some 9 to 12 months.’
‘… the medical professionals available to conduct the relevant type of work, sub-specialty pathologists, such as Prof Mangham, are not ‘approved’, employed by or contracted to the Home Office.’ ‘1. The Home Office, through the Pathology Delivery Board, oversees the provision of forensic pathology services in England and Wales. This is done by maintaining a register of forensic pathologists who have the relevant qualifications, knowledge and experience to conduct forensic post-mortem examinations and act as expert witnesses in suspicious death and homicide cases. Home Office registered forensic pathologists are not employed by or contracted to the Home Office, but act in a private capacity and are paid a case fee by the police or a coroner. The Home Office maintains the register on which they are listed and oversees the rules and standards by which they agree to work. At the time of writing, there are 39 Home Office registered forensic pathologists serving police and coroners in England and Wales, plus 6 trainees being funded through their training by the Home Office. This provides sufficient capability to serve demand in England and Wales. 2. To provide an informed opinion in some suspicious death cases, however, it is necessary for a Home Office registered forensic pathologist to consult the services of other pathology experts. These experts tend to be organ specific sub-speciality pathologists such as neuro, eye, bone and heart pathologists. They are also employed by the NHS or universities. Professor Mangham is a sub-speciality bone pathologist. The Home Office regulates the professional activities of the aforementioned forensic pathologists in order to protect the criminal justice system. The only relationship the Home Office has with these sub-specialty organ specific pathologists is to identify and try to encourage them to take on police cases. They are not registered by the Home Office, although a list of medical professionals willing to do such work is maintained by the National Crime Agency with whom the Home Office Forensic Pathology Unit work closely. The regulation of these sub-specialty pathologists is provided, as it would be to any medical doctor, by the General Medical Council. The Home Office has no role in their professional conduct. 3. … 4. The dearth of sub-speciality pathologists willing to engage in the criminal justice system impacts child and baby death cases. These cases are also particularly complex due to the need to exclude natural disease and conditions associated with age. This has meant that the few sub-speciality pathologists who are willing to take on such cases are overburdened with case work. It is not unusual for a report from a sub-speciality pathologist to take up to six months before it is ready to send to the forensic pathologist (and nine months for bone examination). If this position persists, it is likely that the ability of the police and coroners to thoroughly investigate complex deaths will be severely hampered, and court dates will continue to be missed. 5. It is worth noting again that the system of medical death investigation in England and Wales is a private service, not provided by the state, but reliant on coroners and the police paying for services of self-employed professionals. The Hutton Report was an independent government commissioned report into the current state of forensic pathology capability and made recommendations for a national autopsy/death investigation service, but this recommendation has not been taken forward to date. The report was sponsored by the Home Office as it was intended to examine the current delivery of Home Office forensic pathology services, but it soon became apparent that it was not possible to focus purely on Home Office pathologists without considering the wider picture of pathology services to coroners. The MOJ will therefore be the government department with policy responsibility for implementation following the report.’
‘The Home Office does observe, however, that what appears to have changed over the last ten years or so, is that there are fewer medical doctors choosing to become pathologists as a specialty. This problem has been compounded by the fact that forensic pathologists often used to qualify as generalist histopathologists, where they learned to examine all organs of the body, but this is no longer the case due to the fact that, in 2012, forensic pathology became a speciality in its own right, and no longer a sub-speciality of histopathology. Another major shift in this time is the expectation of the Courts. It used to be the case that suitably qualified forensic pathologists did their own organ specific examinations, but we understand that the expectation of Courts now is that a highly specialised expert is requested.’
‘Whilst each case must be dealt with on its own individual facts, it is our experience that the delays in numerous sets of care proceedings involving a deceased infant are extensive and directly attributable to awaiting the completed post-mortem investigations. Delay is then compounded by the assertion by the police that certain evidential materials should not be disclosed pending receipt of the post-mortem report and re-interview of the parents. That is precisely the case in these proceedings. We submit that the delay can and should be addressed, if possible.’
‘Nothing in this document is intended to be or should be construed as a criticism of Professor Mangham. It is, however, an intolerable situation for children who are the subject of care proceedings, and their families, to have resolution of their cases (and thus, often, welfare decisions as to where they live and whom they see) delayed by months and sometimes years because of one expert. That delay often entails a child who has suffered no actual harm in their parents’ care being separated from them or their wider families at a crucial stage in their emotional and psychological development. The effect of the delay, therefore, is that the State is apt to occasion greater harm to a subject child than they have hitherto experienced. That cannot be right: there is a statutory injunction to avoid delay and there is a unique statutory requirement to dispose of a Part IV application within 26 weeks precisely because delay in decision-making is known to be prejudicial to the welfare of a child.’
‘In a case such as this, involving what is a suspected inflicted head trauma to an infant, the Family Court does not necessarily require a completed post-mortem report in order to proceed to adjudicate upon threshold issues. Experts such as a neurosurgeon and neuroradiologist are regularly instructed in cases involving similar clinical presentations to those observed [here], but where the subject child survives the precipitating incident. Such experts would not ordinarily require tissue or other samples and usually prepare their reports based on the medical documentation and imaging. It is however, the case that any osteoarticular expert instructed by the Family Court would need to examine the necessary bone samples to provide a full report and specifically in order to provide an opinion in relation to causation and dating of any fractures and to rule out any underlying medical cause. That said, radiologists can examine x-rays and provide likely timeframes for the causation of fractures, such as those observed [here], whilst medical records including blood testing and analysis are often sufficient for paediatric and haematological experts to consider the issue of underlying medical conditions.’
‘Accordingly, in cases such as this, we submit that it is open to the Family Court to consider instruction of experts pursuant to Part 25 of the FPR at an early stage of proceedings, should such instruction be capable of providing the Court with the evidence necessary to determine threshold issues without having to await the full post-mortem report from the Home Office instructed pathologist. There is for example, the potential for a neurosurgeon, ophthalmologist and neuro-radiologist to be instructed, with those experts providing an opinion in relation to causation based upon the available imaging and medical records. Such expert evidence could allow the Court to consider the issue of causation and whether it is directly attributable to the actions of a parent, without needing to await the reports of any experts instructed by the police for the purposes of the completion of any final post-mortem report. Further to this, we submit there is no prima facie reason why any samples required by independent jointly instructed experts cannot be disclosed to the parties within the family proceedings by the police, subject to the caveat referred to above at paragraph 15 and in particular, the need to ensure for the safe carriage of any tissue samples.’
“1.1 (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. (2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.” (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”
“The authorities make it plain that, amongst other factors, thefollowing are likely to be relevant and need to be borne in mindbefore deciding whether or not to conduct a particular factfinding exercise: a) The interests of the child (which are relevant but notparamount); b) The time that the investigation will take; c) The likely cost to public funds; d) The evidential result; e) The necessity or otherwise of the investigation; f) The relevance of the potential result of the investigation to thefuture care plans for the child; g) The impact of any fact finding process upon the other parties; h) The prospects of a fair trial on the issue; i) The justice of the case.” a) The interests of the child (which are relevant but notparamount); b) The time that the investigation will take; c) The likely cost to public funds; d) The evidential result; e) The necessity or otherwise of the investigation; f) The relevance of the potential result of the investigation to thefuture care plans for the child; g) The impact of any fact finding process upon the other parties; h) The prospects of a fair trial on the issue; i) The justice of the case.”
“(i) When considering the welfare of the child, the significance to the individualchild of knowing the truth can be considered, as can the effect on the child’s welfare of an allegation being investigated or not. (ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases. (iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument. (iv) The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered. (v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met. (vi) The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children. (vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date. (viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality ofthe case.”