Oldham Metropolitan Borough Council v GW & Ors [2007] EWHC 136 (Fam)

[2007] EWHC 136 (Fam)

Case No MA05C01045

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue MANCHESTER DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th March 2007

Before

MR JUSTICE RYDER

Between

Oldham Metropolitan Borough CouncilApplicant

[1] GWRespondents

[2] PWRespondent

[3] KPW (a child)Respondent

Dr W. St C. ForbesRespondent

Miss Sarah Singelton QC (instructed by the Borough Solicitor) for Applicant (local authority)

Mr Anthony Hayden QC and Mr Karl Rowley (instructed by Pearson and Hinchliffe) for 1 st Respondent (Mother)

Miss Eleanor Hamilton QC and Mr Bansa Singh-Hayer (instructed by Platt Halpern) for 2 nd Respondent (Father)

Mrs Sally Bradley QC and Ms Erica Carleton (instructed by Rothwell and Evans) for child (the 3 rd Respondent, by her children’s guardian, Ms Jacqueline Coultridge)

Mr John Sharples (instructed by Hempsons) for Intervenor

Hearing Hearing dates: 14 th November 2005, 17 th, 29 th, 30 th and 31 st January 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

MR JUSTICE RYDER

This judgment is being handed down in public on the 20 th March 2007. It consists of 103 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved in accordance with the publicity restraint order which has been renewed and which is dated the 20 th March 2007.

Index :

[74]The New Medical Consensus 75 to 89 Analysis 90 to 100 Lessons to be Learned 101 to 103 Publicity Mr Justice Ryder : Preamble

[1]This is a case about KPW (hereafter ‘K’), a young boy who was born on 8th November 2004. His mother, the First Respondent, is GW and his father, the Second Respondent, is PW. K’s parents are in a permanent relationship but have not married. In common with the other parties, K is represented by counsel and solicitors instructed by a children’s guardian, Ms Jacqueline Coultridge. The Applicant local authority, Oldham Metropolitan Borough Council, commenced care proceedings in respect of K on the 28th January 2005.

[2]At the outset of this judgment I must emphasise three very important and essential facts that I find and that are now agreed by all involved: i) K has never been a victim of non accidental injury ii) The care of K by his parents is and has always been exemplary iii) K’s parents and relatives acted promptly and appropriately in obtaining medical treatment for him.

[3]In the reading of complex medical materials these essential facts may become obscured. They should not be forgotten. This is not a case where there is ‘no smoke without fire’, this is a case where a family court and the expert who advised it got it wrong. The parents have no case to answer but their son spent 12 months of his very young life away from their care while the family courts acted to correct the error. K’s parents deserve an explanation as will K when he is older. It is not surprising in these circumstances that there are lessons to be learned.

[4]I am acutely aware that this court acts with the benefit of hindsight, a luxury that was not available to any of those in the legal and medical communities at the time that difficult decisions had to be made. Nevertheless, in light of the importance of some of the issues that have been raised, I hope I may be forgiven for venturing my own recommendations for the future. Accordingly, in the body of this judgment I shall pose some of the problems that were identified and suggest solutions.

The Background

[5]K’s mother and father had been in a relationship (on and off) for over a year by the time of his birth in early November 2004. The birth was relatively uncomplicated, though the mother’s membranes had ruptured some 24 hours previously and because of the rupture, K was given antibiotics to guard against infection. K’s stay in hospital was largely unremarkable save that he was observed to have a swelling over his left eye and his right eye was bloodshot. A swab was taken of the eye which revealed nothing of note: the possibility of infection was considered and not excluded. K was breast-fed. Both he and his mother were discharged home on the 11th November 2004.

[6]Mother had a tenancy in Oldham at the time and father was living there with her. Thus, father was present and involved when mother and K returned home. The new family was also visited and supported by both parents’ mothers.

[7]K was seen at home by a midwife before noon on the 21st November 2004 when he appeared well. This had been the professional opinion during the couple of weeks after his birth i.e. the midwives and health visitors who regularly saw the family were happy with K’s progress. They were impressed with mother: she was described as settled and confident with the care of the baby and as coping well. She was continuing to breast-feed.

[8]The couple went out on the night of Saturday the 20th November 2004. K was left with his maternal grandmother and mother had expressed milk for him. The parents returned home in the early hours of the 21st November and picked up K later that day. A midwife arrived at about 11.00 am and stayed for around half an hour. She observed that mother and baby were well: K was bright and alert and fed well.

[9]The narrative of events from the midwife’s departure before noon on the 21st November to 12.59 am on the 22nd November is derived almost entirely from the parents’ accounts. In their statements to the court the couple said that K was asleep for most of the afternoon and that little remarkable had happened. Mother went for a sleep for a couple of hours from around 4.00 pm and K slept on his father’s chest as he watched television. Father’s brother visited for a short while during the afternoon but he at no time had care of the child. At around 6.00 pm mother awoke and attempted to feed K but he did not seem hungry. He slept through the early evening but at some point at night K awoke and was said to be floppy and his eyes were rolling. Concerned, father was despatched to his mother (K’s paternal grandmother) to seek advice. She suggested K might be too warm and so layers of clothing should be removed, and perhaps a cool bath given.

[10]This was to no avail and so the parents called the Royal Oldham Hospital. The couple were given some instruction and in particular to raise K to see if he lifted his legs. He did not and an ambulance was immediately summoned. The ambulance arrived at one minute before 1.00 am; K’s pulse was 160 per minute and his respiratory rate 40 per minute. By 1.24 am K was in the accident and emergency department of the hospital.

[11]K had various blood tests. A viral illness was suspected. A thyroid test proved normal. He was possetting after feeds, but by 2.00 pm on the 22nd November he was considered satisfactory and alert by medical staff. There was talk of him being discharged but mother expressed her unhappiness with this. In the event, her concern was validated: mother noticed K’s right hand was twitching at about 7.00 pm on the 22nd November and this continued and then worsened for the next hour.

[12]At 9.45 pm a lumbar puncture was performed which did not demonstrate meningitis or other infection. K, however, continued to fit and phenobarbitone was prescribed and administered. At 1.45 pm on the 23rd November a cranial ultrasound was reported to be normal with no evidence of intraventricular haemorrhage and no parenchymal abnormality. K’s seizures were regular and very distressing for him and his parents. Dr Odeka, Consultant Paediatrician, requested an EEG. This was reported to be severely abnormal. It showed a moderate amount of inter-ictal epileptiform activity localised to the left posterior quadrant. Such a localised seizure was thought to be secondary to focal, cerebral dysgenesis, and/or a neuronal migration defect: essentially it was thought to be due to a structural abnormality where K’s brain had developed in the wrong way. A CT or preferably an MRI scan was advised.

[13]K’s last seizure was recorded as taking place in the afternoon of the 24th November. He seemed more settled the following day and was more alert and responsive. A CT scan was performed that same day. Dr Kumar, Consultant Radiologist, reported that there was a focal area of high density in the left parietal region measuring 5mm x 5mm with no gross peri-focal oedema. The rest of the brain parenchyma was said to be unremarkable. There were no signs of hydrocephalus or herniation. Dr Kumar said that appearances suggested a small focal haemorrhage and queried whether it may be due to a prominent vessel.

[14]Dr Odeka discussed the CT scan report with Dr Herwadkar, Consultant Neuroradiologist at Hope Hospital, Salford. He confirmed that there was a left frontal small haemorrhage and that it was within the brain substance. There was no soft tissue swelling or fractures of any bone, and he thought that the site of the lesion was unusual for it to be caused by trauma. He emphasised the need for MRI scanning. Arrangements were made for this to take place on the 6th December 2004.

[15]After taking advice on the management of K’s condition with neurologists and discussing matters with the parents, K was discharged home to his parents on the 27th November, with a plan for weekly review on the ward. It is to be emphasised that at this stage no clinician had suggested the possibility that the cause of K’s symptoms was a non-accidental injury. What had been identified was that K’s condition was unusual.

[16]The next couple of weeks passed unremarkably with reviews in hospital and by midwives and health visitors. A picture emerges of a concerned but coping mother and a child who was progressing well enough. K underwent the MRI scan on the 6th December as arranged.

[17]That scan was reported upon by Dr W. St.C. Forbes, Senior Consultant Neuroradiologist on the 7th December. He found a well-defined ‘cystic’ abnormality in the subcortical white matter of the left parietal lobe in the region of the pre-central sulcus. In addition, there were fairly symmetrical areas of high signal intensity in the subcortical white matter of both parietal lobes consistent with subacute haemorrhage. There was also evidence of a tiny, thin, subacute subdural collection over the parietal-occipital convexity. These appearances were consistent, Dr Forbes felt, with a previous subcortical white matter tear in the left parietal region with evidence of subacute haemorrhages in the subcortical white matter of both cerebral hemispheres. These appearances, he said, raised a possibility of non-accidental injury.

[18]For reasons unexplained, this report was not received by Dr Odeka until the 4th January 2005. On the 6th January Dr Odeka rang the Neurology department and on the following day spoke to Dr Hughes, Consultant Paediatric Neurologist. In the light of Dr Forbes’ report it was concluded that non-accidental injury must be considered. There were further discussions with Dr Ismayl, Consultant Paediatric Neurologist. His initial impression was that K could have suffered an intrinsic bleed which in his age group might be related to underlying vascular malformation. Dr Ismayl then saw Dr Forbes’ report and felt that in the absence of a history of an accident sufficient to cause the brain damage non-accidental injury must be considered as a possibility.

[19]On the 7th January 2005 a full skeletal survey was undertaken: there was no evidence of bony abnormality. Dr Odeka discussed the findings with the parents, telling them of the possibility of non-accidental injury, and then rightly contacted social services. Social workers attended hospital, discussed the case with the parents and grandparents and K was discharged home.

[20]It is important to note that each of the clinicians involved discussed their opinions and findings with each other and went through the processes of taking or considering the history, examination, testing and differential diagnosis to narrow the diagnostic options. Each in their own way deferred to or were involved in the process of referral to Dr Forbes to assist in this process. No-one criticises any of these clinicians. They were all skilled specialists in their own right. Furthermore, the process in which they were involved is an example of a team approach involving inter-disciplinary peer review and referral that is the essence of good practice in health and social care and for that matter in the approach of the both the Government and the family courts to the use of experts (see ‘Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases: A report by the Chief Medical Officer (2006) 30 October and Appendix C to the Protocol for Judicial Case Management in Public Law Children Act Cases ‘the Code of Guidance for Expert Witnesses in Family Proceedings’

[2003] 2 FLR 719

at 771). Despite this, what thereafter happened was a miscarriage of justice in the making.

[21]On the 13th January 2005 the local authority solicitor wrote to the clinicians then involved including Dr Forbes. In the letter to Dr Forbes she said, inter alia, “you will appreciate that the Authority cannot initiate care proceedings unless we have in writing reasonable cause to believe that K has suffered a non-accidental injury. We have not received this as yet.”. She then went on to ask Dr Forbes to address a number of questions including the dates and times of examination, what injuries there were, their likely causation, and whether there was any other possible explanation. One of those questions was:

“Whether K’s injuries were likely on a balance of probabilities to have been accidental or non accidental”

[22]It should be noted that that letter was focused and direct. To an extent the simplicity of its content is to be commended as is the fact that this local authority committed its request to paper and disclosed the same to the parties and the court despite the fact that this preceded the court’s involvement and did not need their agreement or the court’s approval. It was also written before the decision of Charles J. in A County Council v. K, D and L

[2005] EWHC 144 (Fam)

[2005] 1 FLR 851

@ para [89] where he said:

“…in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision-maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information, if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to: (i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered; (ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause; (iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm (iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view; and (v) state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.” (i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered; (ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause; (iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm (iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view; and (v) state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.”

[23]For my part I would respectfully add to what Charles J. said in his extensive and if I may so careful and invaluable review of the relevant case law relating to findings of fact and the evidence of experts (at paras [25] to [90] of A County Council v. K, D & L (supra)), that the opinion evidence of experts is often the consequence of the assessment processes and techniques that they use. It will almost certainly be the case that it is not appropriate to characterise (for example) a paediatric or psychiatric risk assessment as being a conclusion to which the civil standard of proof applies in just the same way that a social care assessment, for example in accordance with the Framework for the Assessment of Children in Need and their Families TSO (2000) is neither based upon nor results in a conclusion on the balance of probabilities: Re S (Sexual Abuse Allegations: Local Authority Response)

[2001] EWHC Admin 334

[2001] 2 FLR 776

per Scott Baker J. The task of determining facts to a standard of proof is for the court (see also Dingley v. Chief Constable of Strathclyde Police (2000) 55 BMLR 1 (9 March 2000) per Lord Hope of Craighead at 120 and 122).

[24]I do not criticise the local authority in the recommendation that I make that all local authority instructions to experts that they wish to involve before proceedings are taken should follow the good practice guidelines for letters of instruction generally (now conveniently summarised by the Family Justice Council at www.family-justice-council.org.uk and at Annex B para 21 of the CMO’s Report (supra)) and in particular that the principles set out by Charles J. are followed. It is not suggested that Dr Forbes was influenced by the terms of his letter of instruction and he denied in evidence to Judge Newton that he had been. However, the development of good practice since 2004 has a sound empirical basis and was developed after inter-disciplinary consultation and discussion and it must therefore be a possibility that had the instruction been given today, the questions would have been different and accordingly the response to the questions might have been different and that may be just one small part of the jigsaw of what went wrong.

[25]In response to the letter Dr Forbes confirmed his earlier opinions. He said that there was no evidence of a major developmental or congenital abnormality. Additionally he reviewed the CT scan seen by Dr Kumar and said that there was an ill-defined area of high density in the parenchyma of the left fronto-parietal region. There was, he said, a suggestion of a similar but smaller abnormality in the right fronto-parietal region. Dr Forbes said that the sub-cortical white matters tears were pathognomonic of non-accidental injury, i.e. especially characteristic or diagnostic of non-accidental injury.

[26]That report was dated the 25th January 2005. The following day the parents and wider family were informed and an agreement was reached that K would live with the paternal grandmother, KW. A child protection agreement embodying the terms of the placement was signed on the 27th January 2005. Care proceedings were issued on the 28th January 2005. An initial Child Protection Case Conference held on the 1st February 2005 concluded that K had suffered a non-accidental injury but that given the fact that proceedings had been commenced, there was an agreement in relation to his care and the family were co-operating, registration was not considered appropriate.

The Proceedings and Medical Evidence Leading to the Finding of Fact Hearing

[27]The first interim care order was made by Oldham Family Proceedings Court on the 3rd February 2005 and the case was properly and immediately transferred on the grounds of complexity and gravity to the County Court. The allocation hearing took place on the 8th February 2005 before District Judge Fairclough in accordance with the Protocol. Thereafter and in accordance with good practice the proceedings were case managed exclusively by Her Honour Judge Newton, the allocated Circuit Judge. She gave permission for the children’s guardian to instruct Dr Kathryn Ward to undertake a paediatric overview of K’s circumstances.

[28]At the Case Management Conference which took place on the 23rd February 2005 Judge Newton decided that a finding of fact hearing was necessary and fixed that hearing for the first available date which was the 5th April 2005. The father sought permission to instruct Dr Neil Stoodley, Consultant Paediatric Neuroradiologist, to report in particular on the MRI scan. The application was in essence for a second opinion by a specialist paediatric radiologist who had not previously been involved in respect of the critical medical issue in the case. The application was supported by mother. Neither the local authority nor the children’s guardian opposed it. The parties had flagged-up the need for such a report in their case management documentation and had discussed the issue at an advocates’ meeting prior to the case management conference. The judge refused the application. Her order was not appealed.

[29]Whether there should have been a second opinion and the necessity of an early appeal are questions that the Court of Appeal subsequently answered. What has not been discussed is why the careful process of medical peer review and judicial case management concentrated on what came to be regarded as a medical consensus and did not highlight the unusual features of the case that would eventually come to be accepted as a rare example of a medical event that was constitutional not imposed.

[30]The overview report of Dr Ward was subsequently received and is dated the 21st March 2005. She considered, interalia, issues raised by the parents concerning the swelling to K’s eye and his receiving a blow to the head after his discharge in November. She thought neither was aetiologically connected with the injuries Dr Forbes identified. She concluded that a review of the medical records and of the investigations performed on K revealed no evidence of any underlying medical condition or pathology which would predispose him to the radiological findings described by Dr Forbes. Dr Ward pointed out, however, that Dr Kumar had not seen the MRI scan, and recommended that he did so as:

“the diagnosis and timing of possible non-accidental injury is wholly dependent upon the cumulative information gathered from the CT scan and the MRI scan. It will be very important to ascertain if there is any difference of opinion between the radiologists, and I would defer to radiological opinion in this matter. If however Dr Kumar disagrees with Dr Forbes’ interpretation of the MRI scan then other issues would become important, for example more detailed investigation into possible clotting disorders such as Factor XII deficiency. It is essential to paediatric opinion that there is some consensus from the radiologists.”

[31]Dr Ward additionally noted that no-one had at any stage examined K’s eyes for haemorrhaging. She suggested this be done, even at that late stage, as there may be signs of such or their sequelae.

[32]In light of this report and at a further directions hearing on the 22nd March 2005 the father’s legal representative renewed his application for permission to instruct Dr Stoodley. The application was refused again (as was permission for leave to appeal). An appeal to the Court of Appeal was not pursued. The judge did however direct that a report be filed by Dr Kumar as to whether he agreed with the conclusions of Dr Forbes in relation to the MRI scan. A direction was also made providing for a consultant ophthalmologist to report.

[33]The Experts’ Meeting that was held on the 24th March 2005 was without the benefit of Dr Kumar’s report and without his attendance. Drs Odeka, Forbes, Ismayl and Ward attended. Dr Forbes brought his viewing box and demonstrated his findings using the same. Those attending the experts meeting agreed that there were white matters tears and the tiny haemorrhage as previously described. They agreed that the probable cause of the white matter tears was severe shearing forces and that their presence was highly characteristic of non-accidental injury.

[34]They agreed that the probable cause of the injury was a single shaking episode involving impact with considerable force being involved. The forces involved were complex, involving rotational and longitudinal forces. The absence of any external signs of injury was consistent with the mechanism as suggested. Dr Odeka confirmed that the ophthalmologist had found no abnormality but this was considered of no significance to the conclusions reached at this late stage. As to the timing, the consensus was that K sustained the injuries between 11.00 am on the 21st November 2004 and 12.56 am the following day. There was a possibility that the tiny subdural collection may have been caused at birth but it was more likely that the cause was something other than a birth event, given K’s presentation then.

[35]At the request of mother’s Solicitor the experts were asked whether they were content to rely on the opinion of only one neuroradiologist. The assembled experts deferred to the court to determine which experts should be involved, but noted that Dr Kumar had been asked to report in advance of the finding of fact hearing and that two neurologists had considered the MRI scans. Drs Odeka and Ward observed that they would defer to the radiological opinion whatever the number of radiologists involved, but that radiology was an essential piece of the jigsaw.

[36]The finding of fact hearing was to commence before Judge Newton on the 5th April. Dr Kumar’s report was filed the day before. Dr Kumar declined to comment one way or the other on Dr Forbes’ report as he frankly confessed he had not come across an MRI scan of a neonate’s brain in 4 ½ years of practice. He suggested that a paediatric neuroradiologist give a second opinion if that was considered necessary.

The Finding of Fact Hearing before Her Honour Judge Newton

[37]At the outset of the finding of fact hearing on the 5th April 2005 junior counsel for the mother (then appearing alone) made an application for permission to instruct Dr Stoodley. This involved an application to adjourn the hearing. The Court was told that Dr Stoodley could report within 8 to 10 weeks of instruction. Dr Ward’s comment that a radiological consensus was essential to the paediatric opinion was brought to the court’s attention. The unusual features of the case were also raised: the white matter tears themselves were very rare signs; Dr Herwadkar felt it to be an unusual site for traumatic lesion and Dr Kumar had considered the possibility of a prominent vessel being responsible for the bleed; the absence of retinal damage; the absence of significant subdural haematomas; and the absence of bony or soft tissue injury. It was argued that such unusual features meant that it was not safe to proceed on the basis of one expert opinion only: Dr Forbes’ opinion was the mainspring of all that followed, all other experts deferred to him as to the identification of the white matter tears and Dr Ward had said that a radiological consensus was essential to the paediatric opinion.

[38]The Judge deferred consideration of the application until she had heard all of the evidence i.e. the application could be renewed at the end of the hearing if necessary. Drs Ward and Forbes gave evidence in accordance with their previously disclosed opinions. Dr Ward was asked how many white matter tear cases she had come across in her long career and said “over 5”. Dr Forbes said that he saw only 1 or 2 a year.

[39]After the medical evidence the parents gave evidence and continued to deny knowledge of how K may have received such injuries. Their explanation of any activity that might have caused K harm, in particular a twirling movement that was demonstrated in court was not sufficient to persuade the experts of any innocent cause of K’s presentation. Neither parent sought to blame the other. Neither parent believed the medical evidence as to the presence of the subcortical injuries and their causation. An ‘innocent’ parent caught in the glare of accusation and without medical knowledge or support is in a difficult position. Their attempts to find anything that might explain what had happened will inevitably have had something of the character of desperation if not hopeless conjecture. There is little that even an experienced judge can do other than to remind himself or herself of this possibility when considering the credibility of their evidence in this difficult context. The solution lay in an earlier decision to permit them access to a second opinion.

[40]In closing submissions counsel for the mother renewed the application for permission to instruct Dr Stoodley. Judge Newton delivered her Judgment on the 8th April. In a judgment that is, if I may say so, a model of clarity, reason and analysis of the evidence put before her, she accepted what was described as the consensus of medical opinion and found that the white matter tears and the subdural collection were caused non-accidentally when the child was in the care of the parents. She was unable to say which parent was the perpetrator: both were ‘in the frame’, neither could be safely excluded. The Judge refused permission to instruct Dr Stoodley. She held that the delay which would ensue would be unacceptable for the child in the context that there was no realistic prospect of Dr Stoodley coming to a dramatically different conclusion.Whatever the strength of the submissions as to the need for a second opinion given the unusual features of K’s presentation, at that late stage in the case and having regard to the evidence that was before her, Judge Newton could have come to no other conclusion.

[41]After some days (to enable the parents to reflect on the Judgment) and as she was required to do in order to pursue an appeal further, the mother sought permission to appeal from Judge Newton, which was refused.

The Appeal

[42]By a Notice dated the 6th May 2005 the father sought to appeal and for permission to instruct Dr Stoodley. On the 9th June 2005 Thorpe LJ refused permission to appeal. On the 20th June 2005, the father renewed his application, supported by the mother. On the 21st June 2006 Thorpe LJ permitted the release of the papers to Dr Stoodley who had confirmed that he could provide a report within a matter of days.

[43]That report, dated the 7th July 2005, arrived at a dramatically different conclusion to that of Dr Forbes. In Dr Stoodley’s opinion the signs in K’s brain were indicative of hypoxia / ischaemia resulting from an event antenatally or intrapartum. Dr Stoodley considered that there were several facets of the case which did not fit with the pattern normally seen in cases of non-accidental head injury (‘NAHI’).

[44]Firstly, K was relatively asymptomatic upon his admission to hospital, becoming ill the next day. An evolving picture of symptoms was seen but at the less severe end of the NAHI spectrum. The presence of subcortical shearing injuries suggested to him a non-accidental injury at the more severe end of the spectrum but that was not compatible with K’s presentation. A child suffering shearing injuries would have severe symptoms at the time of admission with obvious signs of severe encephalopathy. Secondly, there was no evidence of multi-focal acute subdural blood to suggest a shaking. Thirdly, the pattern of brain injury seen in the scans of K’s brain is more that of an acquired hypoxic-ischaemic insult or metabolic abnormality. Dr Stoodley favoured the former. He stated that he had never seen such a pattern of brain injury in the context of non-accidental injury. He added that in his view Dr Forbes’ opinion “is not correct, is fundamentally flawed … and … is incapable of withstanding logical analysis.”

[45]In the light of that report none of the respondents to the appeal sought to argue against the setting aside of Judge Newton’s order, but the Court of Appeal was invited to provide guidance to the profession on the instruction of experts for second opinions in brain injury cases.

[46]The matter came before Thorpe LJ, Wall LJ and Black J on the 25th July 2005 when the court, by consent, allowed the appeal. The matter was remitted for rehearing before this court as soon as possible.

[47]In a Judgment delivered on the 31st October 2005

[2005] EWCA Civ 1247

; sub nomW v Oldham Metropolitan Borough Council

[2006] 1 FLR 543

the Court of Appeal gave guidance on the use of expert evidence. In the context where there has been a jointly instructed expert or an experts’ consensus which a party seeks to challenge, the court held that a second opinion should normally only be permitted where the question to be addressed by the expert chosen to give the second opinion goes to an issue of critical importance to the judge’s decision in the case. The principle echoes an earlier statement of principle that is not diminished by the subsequent case law on residential assessments and which was not cited to the Court of Appeal: Re G (interim Care

[48]The guidance given in the judgment of Wall LJ was predicated by the observation that the application made on the first day of the hearing before Judge Newton was bound to fail. The likely delay in determining the future of a very young child was by then a real issue. The question that had crystallised with the recommendation of Dr Kumar on the 4th April was the same question that had not been pursued on appeal on two previous occasions, namely that of all the clinicians involved, Dr Forbes was the only radiologist who held himself out as able to interpret and assess the MRI scan. The apparent medical consensus on which Judge Newton relied was not a real consensus at all in that it depended on the opinions of Dr Forbes being correct as all the neurologists and neuroradiologists then involved deferred to him.

The New Medical Evidence

[49]Dr Forbes responded to Dr Stoodley’s report in a letter dated the 25th July 2005. He considered that Dr Stoodley had over-interpreted the apparent basal ganglia changes. He advised that the neonatal scans of the basal ganglia and thalami should be interpreted with caution. He considered that Dr Stoodley stepped outside his field of expertise in hypothesising that the child suffered a profound asphyxial insult, and advised that the opinion of appropriate experts be sought. He said that focal cystic changes are “uncommon to say the least” in cases of profound asphyxial insult. Focal atrophy or more rather generalised cerebral atrophy is the norm, he said, rather than focal areas of cystic encephalomalacia as postulated by Dr Stoodley.

[50]Dr Forbes considered that Dr Stoodley was wrong in his assertion that sub-cortical tears are always associated with severe symptoms and Dr Forbes referred to two cases known to him where such tears resulted, in one instance, in fairly minor symptoms, and in the other in no symptoms at all. In the latter case, an MRI scan of an asymptomatic twin (whose sibling suffered acute encephalopathy) showed multiple sub-cortical white matter tears.

[51]The views of Drs Ismayl and Hughes were sought on Dr Stoodley’s report. Dr Ismayl, in a report dated the 22nd August 2005 deferred to Dr Forbes on the radiological findings. He did however observe that children who have suffered NAHI do not always present acutely and unwell. A child having severe hypoxia would definitely be unwell, and in his experience he had not seen a baby who had suffered mild to moderate hypoxic ischaemia that had resulted in cystic leukomalacia especially symmetrical and only in two sides of the brain. Dr Hughes did not consider that any further involvement from her was needed.

[52]Dr Stoodley provided a further report dated the 3rd October 2005 having seen the balance of the papers in the case. He did not alter his conclusions in any way. He expressed how troubled he was by the case as there were many aspects that appeared to him extremely unusual when compared to other cases of NAHI with which he was familiar. He reiterated that K appeared largely asymptomatic on admission whereas if his admission had been precipitated by an episode of NAHI of sufficient severity to cause shearing injuries then it would be “extraordinarily improbable that he would not have been obviously and seriously unwell.” He regarded the signal abnormalities in the thalami to be real, not artefactual.

[53]While not subscribing to a ‘tick-box’ approach to cases of NAHI he considered K’s case with reference to the so-called triad of features commonly seen in NAHI cases: acute encephalopathy, subdural haemorrhage, and retinal haemorrhage. These elements were not present in K’s case. The child was not encephalopathic on admission. K’s eyes do not seem to have been examined at the time of his stay in hospital in November 2004. If any subdural haemorrhage was present it was present at one site only and a birth injury could not be ruled out as a cause.

[54]Dr Stoodley reiterated that the combination of bilateral signal abnormalities in the thalami (and possibly the left putamen) the perirolandic white matter and cortex, together with the cystic lesions and slightly more extensive subcortical haemorrhagic necrosis, is best explained by a hypoxic-ischaemic insult or possibly an underlying metabolic disorder.

[55]A further Experts’ Meeting was held on the 13th October 2005. Drs Forbes and Stoodley maintained their respective positions including as to the presence or otherwise of signal changes in the thalami. Dr Ward thought that it was highly unlikely that there would be a 2½ week period of normality following birth where there had been a prenatal insult to the brain. Dr Stoodley reiterated his view that a child presenting with subcortical white matter tears would be extremely unwell, with major encephalopathy. Drs Forbes and Ismayl disagreed. Dr Ward agreed that it was not necessary that a child be very unwell with a non-accidental injury. She commented, however, that there was a lack of an evidence base and thus “it is difficult to be objective and we are really down to experience on this and this point must be made to the Courts.” Dr Ward’s words on this and her previous caveats were, if I may say so, very wise indeed.

[56]When considering the possible causes of the signs seen Dr Stoodley maintained his view that they are most likely to represent the results of hypoxic ischaemic injury. Dr Forbes likewise maintained the conclusions set out in his reports but looked to confirmation from the clinical background. Dr Ward said that if the radiology was uncertain then as a clinician she was uncertain. Dr Ismayl favoured NAHI. It was agreed that the most common site in which to find traumatic clefts from shearing injuries to the brain would be the frontal and temporal regions and that that was supported by research material. Kleinmann: Diagnostic Imaging of Child Abuse Dr Forbes said that he had seen either 5 or 6 cases of shearing injuries distributed throughout the brain although the preponderance were frontal. There was discussion as to whether a further MRI scan might be useful clinically but Dr Stoodley did not think that that would resolve the issues between them.

[57]Dr Forbes reported that he had seen one other case (of twins) with established non-accidental injury and an analogous pattern of perirolandic parenchymal changes. Dr Ismayl had seen two, including the case of the twins. Dr Kumar had seen a couple during his training under Dr Forbes. Dr Stoodley had not seen such a case. All experts agreed that an opinion from a consultant in obstetrics would be needed.

[58]On the 11th October 2005 which was the earliest working day following the withdrawal of the appeal in July, case management directions were given by this court including permission on an application by the child’s solicitor for Mr Philip Bullen, Consultant Obstetrician and Gynaecologist, to be instructed to provide a report.

[59]On the 18th October 2005 Dr Forbes wrote reflecting on Dr Stoodley’s comments and conceded that “on the balance of probabilities the changes in the thalami cannot be fully explained by artefact.”

[60]The report from Dr Bullen, Consultant in Obstetrics & Foetal Medicine, dated the 25th October 2005 concluded that there was a total absence of evidence of significant intrapartum hypoxic ischaemic injury to K. There was no recorded episode in the antenatal period that seemed likely to have caused foetal brain injury. In order to decide whether the brain lesions arose from an indeterminate antenatal insult Dr Bullen considered it vital that it be determined whether the fronto-parietal brain abnormalities were in fact haemorrhagic and thus arose after the foetal period. That was an issue for the neuroradiologists. In an addendum report dated the 24th January 2006 Dr Bullen (having examined the mother’s cardiotocograph traces) reiterated the total absence of evidence of intrapartum hypoxic ischaemic injury to K.

The Re-Hearing

[61]The matter came before the High Court for re-hearing on the 1st November 2005. In light of the age of K and the effect upon all concerned, time was found in the first available list on the Northern Circuit by triple listing all high court sittings. As is often the case with urgent children matters, making scarce court time available for an essential hearing brings with it significant difficulties in getting witnesses to attend court. Dr Stoodley repeatedly made himself available at short notice to give evidence so that the pre-existing court and clinical commitments of Dr Forbes could be honoured. Only after very significant efforts by the court and the lawyers involved was it possible to hear the evidence of both witnesses in chief, where they maintained the strength of their opinions. Due to the unavailability of Dr Forbes, the cross examination of neither witness was completed.

[62]Although I accept that Dr Forbes’ commitments were very significant in that his urgent clinical duties which included reviewing the work of others had already been interrupted by another court’s demands, I have never before had to threaten a witness summons against an eminent practitioner simply to ensure that the evidence in an urgent case could be heard. This court does not stand on ceremony but the heightened emotions thereby created did nothing to instil in the innocent parents any confidence that they would ever see justice done. Dr Forbes has apologised for the impression that was created which I readily accept was not his intention but was the accumulated pressure of high profile clinical and forensic work and a lack of court space in any location convenient to the witnesses.

[63]Despite this situation, on the 14th November 2005, the local authority had become sufficiently impressed by Dr Stoodley’s evidence that they sought permission to withdraw the care proceedings on the basis that the continuation of the proceedings had the prospect of causing more harm to K rather than safeguarding his welfare and in any event, the local authority had come to the conclusion that they could work with the parents, whether as perpetrators or not. The application was opposed by the Guardian and extensive submissions were made as to whether diametrically opposed evidence from experts whose opinions were apparently within the reasonable bracket of mainstream i.e. orthodox opinions that radiologists could hold on the same factual base could form a sufficient prima facie case for a court to refuse permission to withdraw i.e. was the evidence potentially cogent enough to satisfy the threshold in section 31 of the Children Act 1989, thereby satisfying the interim threshold in section 38 of the Act.

[64]In an interim judgment given ex tempore on the 14th November 2005 I refused permission to the local authority to withdraw the care application. The basis for that refusal was as follows: i) Both of the conflicting opinions were apparently within mainstream, orthodox interpretation of radiological materials ii) The descriptions of the radiological presentation showed one matter about which the two experts agreed i.e. that is that the signs were a dis-correlation: there was more than one sign to interpret and orthodox interpretations drove each of the experts in different directions to the extent that at one point the court was asked to describe what it saw on the relevant films. This I declined to do: if the court had the skill and expertise to interpret the materials it would not have asked for expert assistance iii) The question upon which the experts disagreed was not susceptible of being answered by a judge determining credibility iv) The issue was whether either expert’s evidence was capable of being sufficiently cogent for the proof of an inherently unlikely event: NAHI or pre-birth incident or, let us not forget, a presentation of unknown aetiology v) Both explanations were arguably cogent on the face of the evidence presented and the court cannot and should not abrogate its duty to come to a conclusion in the interests of the child vi) Although the risk was very significant indeed it could be met by the agreements that were possible between the local authority and the parents provided that there was the additional protection of the court’s process during a trial rehabilitation vii) While the question as to cause was determined, if that be possible, interim care orders could be used to manage the rehabilitation and that would be both necessary and proportionate (following the exceptional course described in X Council v. B

[2004] EWHC 2015 (Fam)

[2005] 1 FLR 341

per Munby J. at paras [7] to [17] albeit in different circumstances) viii) Far from describing the same radiological presentation, the evidence of Drs Forbes and Stoodley differed not just as to interpretation but even as to the description of K’s scans.

[65]Accordingly, this court refused to allow the proceedings to be withdrawn but approved the local authority’s plan to rehabilitate K to his parents’ care, the child remaining the subject of a series of interim care orders.

[66]Having regard to the complexity of the case and the fact that both eminent radiologists maintained their diametrically opposed opinions, I directed that a third expert in paediatric neuroradiology be instructed. The expert identified was Professor Olof Flodmark, Paediatric Neuroradiologist, Director of the Department of Neuroradiology at the Karolinska Hospital and Professor of Neuroradiology at the Karolinska Institute, Sweden.

The Current State of the Medical Evidence

[67]The report of Professor Olof Flodmark dated the 7th February 2006 concludes that K suffered a period of profound asphyxia of between 10 and 20 minutes when in the womb and that inflicted injury is not a possible cause of the brain damage seen in K’s case.

[68]He noted that the CT and MRI scans demonstrated lesions in the child’s brain located in and limited to the pre-central gyrus and thalamus. Those features of the lesions would, he said, very strongly suggest that they are so located due to metabolic reasons. The pattern of damage noted in K’s brain is quite similar to that of damage caused by an episode of profound asphyxia lasting more than 10 minutes but less than 20-25 minutes. An alternative but much less likely cause, neurometabolic disease, must be considered, but the specific pattern of signs in K’s brain has never been reported in neurometabolic diseases. Dr Flodmark added that he “would not include physical child abuse, non-accidental injury, as a possible cause of the brain damage seen in [K’s] brain.”

[69]He continued that it would be extremely unlikely that an inflicted injury to the brain would be found in a distribution confined to the pre-central gyrus, following it from the parasaggital region down to the most lateral and inferior part of the structure, as the tearing forces would not respect the boundaries of a single gyrus, even more so as there are symmetrical injuries on both sides of the brain. Nor is damage to the basal ganglia and thalami a recognised feature of inflicted injury, thus those lesions, also symmetrical, would be equally unlikely to have been caused by shaking.

[70]Professor Flodmark observed that the fact that the midwife noted K to be bright and well on the 21st November 2004 is not immediately supportive of his opinion that the insult to K’s brain was pre-birth. However, 4 children in a study by Dr Krageloh-Mann Krageloh-Mann I, et al: Bilateral lesions of the thalamus and basal ganglia: origin and outcome Develop Med & Child Neurol 2002 44:477-484 who had similar brain damage to K did not have any clinical evidence of hypoxic-ischaemic events, had APGAR scores that were unremarkable, and none of them showed signs of neonatal depression or neonatal convulsions. Their clinical follow-up showed a stable course without evidence of progression of their disease, yet they appeared (and were considered) to have suffered an episode of profound asphyxia.

[71]On the 27th February 2006 Professor John Wyatt, Professor of Neonatal Paediatrics, submitted a report at the court’s request in which he remarked that this is an extremely unusual, difficult and complex case. He was unable to identify any incident or event before, during, or after the neonatal period which could explain all the findings. In his opinion both severe shaking injury and a congenital neurometabolic disorder are very unlikely to account for the combination of clinical and imagining findings in this case. The possibility remains that there was an intrauterine cause of the brain injury, including asphyxia some days or weeks before birth. While there is no obstetric evidence to support that, there are well-documented cases of similar patterns of brain injury thought to be caused by unknown processes in the antenatal period leading to focal scarring in the perirolandic regions, which Professor Wyatt believed could account for K’s clinical presentation on the 22nd November 2004 and the subsequent seizures.

[72]Professor Wyatt’s view was that K’s injury could not be attributed to non-accidental injury. The most likely timing of the injury was some days or weeks prior to delivery, with the cause unclear, though most likely to be a transient and severe asphyxia or interference in the oxygen delivery to the foetal brain from an unknown cause.

[73]In a letter dated the 1st March 2006 Dr Forbes accepted Professor Flodmark’s analysis and conclusion and his opinion on K’s imaging. Dr Forbes noted that there was no evidence for the incident of profound asphyxial insult and thought that an infant who had sustained such an insult would be in poor condition at birth, unlike K. It could be said, therefore, that the new hypothesis relied upon the research cited by Professor Flodmark namely the four infants in the Krageloh-Mann study and the very helpful experience of Professor Wyatt. This was at the cutting edge of medical knowledge.

The New Medical Consensus

[74]Drs Forbes and Stoodley, and Professors Wyatt and Flodmark all now agree that: i) the signal changes in the basal ganglia and thalami are real and not artefactual. ii) the pattern of damage demonstrated in the MRI scan of K’s brain is likely to be due to an episode of transient but profound asphyxia some days or weeks prior to delivery. iii) it is very unlikely that non-accidental injury could cause the pattern of insult seen in the imaging scans of K’s brain.

Analysis

[75]Leading counsel for all of the parties to the proceedings have invited the court to give a judgment in open court and to investigate why the processes went wrong so that similar errors might be avoided in the future. As Munby J. remarked in Re B (a child) (Disclosure)

[2004] 2FLR 142

@ para [101], it would be complacent of us to assume that miscarriages of

justice do not occur in the family justice system:

“we must be vigilant to guard against the risks and we must have the humility to recognise and to acknowledge the public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice... We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the Family Justice system... open and public debate in the media is essential.”

[76]The force of those remarks is demonstrated by the facts of this case: i) K was separated from his parents for 12 months; ii) The parents bore an almost intolerable burden of being unjustly accused of inflicting serious injury on their infant son; iii) The parents experienced the nightmare of what has transpired to be a false finding by a court. They lived for 12 months with the opprobrium and suspicion of friends and neighbours; iv) On finding herself pregnant during the course of proceedings the mother decided to terminate that pregnancy, unable to face the inevitable separation from her baby that would have followed from such serious findings. I am told that just as she grieves the loss of those many crucial months with K she carries an additional loss of another potential life.

[77]Aside from the various recommendations that I am asked to consider and those which the court has raised with the parties, I am asked to make certain additional findings that directly concern Dr Forbes. For that purpose Dr Forbes has had access to an agreed bundle of papers, including the findings sought and the written submissions in support. He has had the very considerable benefit of counsel instructed by the Medical Defence Union, Mr John Sharples, to whom the court is very grateful.

[78]As the submissions were developed it has become clear that everyone agrees that I should make the findings about the parents and their care of K that I set out at the beginning of this judgment at paragraph [2]. Likewise I should make the findings that are encapsulated in the final medical consensus that is set out at paragraph [74]. Further, no-one questions the impact these proceedings have had on the parents as set out at paragraph [76]. I make those findings by consent and having regard to the weight of cogent evidence that is now available to the court.

[79]There are then 2 other issues that I am asked to consider: i) Whether Dr Forbes’ interpretation of K’s radiological presentation as white matter tears was wrong i.e. outside any orthodox or mainstream opinion; and ii) Whether Dr Forbes failed to advise his colleagues and the court that the signs he described on K’s MR scan were highly unusual in that he had experience of only two such presentations before.

[80]The essence of the mother’s case is that Dr Forbes’ opinions were controversial and were exclusively based upon Dr Forbes’ inevitably limited subjective experience which should have been disclosed. The highly unusual features of K’s presentation should have been highlighted.

[81]There is no doubt that Dr Forbes was aware of the unusual features of the case and said so and that discussions with his clinical colleagues proceeded on that basis: i) In his first report he raised the possibility that the thin subdural haematoma that he had identified may be a complication of child birth ii) The clinicians who had also raised this and other aetiologies and who had expressly or impliedly highlighted the unusual features of the case and asked for a referral unanimously reached a conclusion with Dr Forbes at the experts’ meeting on the 24th March 2005 that K had suffered a non-accidental injury: they went on to agree a specific mechanism iii) Dr Forbes’ radiological colleagues were themselves specialist consultants: the very fact of their referral indicated the unusual nature of the case iv) The clinicians understood that radiology was but one part, however important, of an overall clinical picture and each clinician, most particularly Dr Forbes, was astute not to stray into the specialism of others.

[82]The clinicians, including Dr Forbes, left the question of whether there should be a forensic second opinion to the court. In difficult cases, that is no longer sufficient and the court is entitled to ask whether alternative expert evidence is necessary and if so, in which discipline. For my part I would also ask experts at the earliest stage what questions they think they or another should answer as in this court’s experience that tends to highlight the identification of the key issue or issues in the case and the encapsulation of the problem to be solved. That however is not a criticism of Dr Forbes. It is an element of developing best practice that now needs to be set down in the protocols to which we work.

[83]I have also come to the clear conclusion that experts should be asked not only whether their opinion is mainstream or orthodox (as they were in this case) and what the range of orthodox opinions might be, but also whether within that range of opinions the answer might be that the cause of an injury is unknown, highlighting the unusual features of the case that may indicate contrary interpretations. In essence, they should take the court through the differential diagnosis highlighting any contradictory or inconsistent features. This balance sheet approach is used in many expert disciplines and areas of litigation and is almost universally of assistance. The court and experts generally may have become too focused in trying to reach agreed solutions to difficult problems. Experts are asked to inform the court of their agreements and their disagreements: the latter can often be as important as the former.

[84]Having regard to that overall context, however, there remain two elements of Dr Forbes’ advice that concern the court. In my judgment, it was Dr Forbes’ description of K’s presentation as pathognomic of NAHI that the mischief was done. The language of his first report was too absolute although I do not forget that he was answering a series of focused and direct questions. If the absence of supporting features for his conclusion had been analysed in context, other possible explanations for K’s presentation could have been taken more seriously. The unusual nature of the conclusion in the absence of these supporting features should have been brought to the attention of the court by Dr Forbes. Dr Forbes was entitled to his opinion based upon his own experience but the other possibilities should have been debated with the parties and the court. Likewise the very limited experience upon which he and any other expert could have relied should also have been made clear. It was after all that very disclosure by Professors Flodmark and Wyatt that tipped the balance into the new medical consensus.

[85]The question is not whether Dr Forbes’ opinion was reasonable having regard to mainstream medical science. As Dr Forbes has pointed out there may be no mainstream view in these difficult cases but rather a very small group of highly experienced experts who are entitled to and do come to different conclusions based upon their own experience and the limited research materials that exist.

[86]The question for this court is why the unusual features were minimised and other options in consequence not sufficiently explored? One clear reason is that the research and experience disclosed by Professors Flodmark and Wyatt was not in the knowledge of Dr Forbes. That is in the nature of cutting edge medicine. Dr Stoodley to his credit had come to the same conclusion but that does not detract from the highly unusual nature of the problem. There was no answer to Dr Forbes’ question before Professor Wyatt had reported i.e. it was only Professor Wyatt who could explain the lack of evidence of pre-birth or birth incident. Furthermore, prior to Dr Stoodley’s evidence, the experts, like the courts before them, agreed that there can be non-accidental injury in the absence of some or all of the classic features and it is in the consideration of this hypothesis that the critical error was made. In my judgment the imperative of child protection overtook scientific i.e. medical analysis in an attempt to explain the unknown.

[87]Having heard Dr Forbes in evidence I have come to the conclusion that I accept what his counsel says. He genuinely took a different professional view of a very difficult problem. The fact that his view was dominant and eventually disagreed with by others is not a criticism of him. He abided by all of the expert’s duties placed upon him. In my judgment, he and the court at first instance fell into error when Dr Forbes unconsciously strayed from the role of expert into the role of decision maker and the court failed to detect that that was what had happened. In retrospect Dr Forbes accepts that he could have more forcefully brought the unusual features of the case to the attention of the court.

[88]Dr Forbes did what he would have done if there had not been any court proceedings. Knowing of the extreme risk that K would have been subjected to if he had been cared for by a perpetrator of NAHI, he analysed the diagnostic information and came to a conclusion based upon the balance of risks that existed. He assumed the role of child protection that every clinician has to undertake in consultation with his colleagues who agreed with him. However, when proceedings are commenced and when documents are prepared for the purpose of those proceedings a clinician must allow the court to take the responsibility for protecting the child and if appropriate for coming to a different conclusion. I got the distinct impression on more than one occasion that Dr Forbes was defending a child who had potentially been seriously injured and who needed protection. That is not the same as being defensive of his own position, an allegation I reject.

[89]In the final event, therefore, I decline to criticise Dr Forbes for his opinions although I have commented that the language he used in his first report obscured the highly unusual nature of the case. I shall make recommendations in judgment that I hope will assist to try and prevent too great a focus by a clinician who is also an expert witness in a family court on what is in essence a child protection decision and which will emphasise a return to good medical practice by asking instead for the basis for the differential diagnosis and the supporting and differentiating factors.

Lessons to be Learned

[90]Nothing in what follows should be taken to detract from the strong body of guidance given in previous decisions of the Court of Appeal and this court relating to experts. In that regard it is perhaps wise to emphasise the principles set out by Cresswell J. in National Justice Compania Naviera SA v. Prudential Assurance Co Ltd

[1993] 2 Lloyd’s Rep 68

at 81, Cazalet J. in Re R (A Minor) (Experts’ Evidence)

[1991] 1 FLR 291

and the summary of relevant case law that can be found in A County Council v. K, D and L per Charles J. (supra).

[91]In addition to the guidance formulated by the Court of Appeal in this case, I have also recommended that: i) Local authorities should always write a letter of instruction when asking a potential witness for a report or an opinion, whether that request is within proceedings or pre-proceedings e.g. when commissioning specialist assessment materials, reports from a treating expert or other evidential materials and the letter of instruction should conform to the principles set out by the Family Justice Council at www.family-justice-council.org.uk and the Chief Medical Officer at Annex B para [21] of ‘Bearing Good Witness’ (2006) 30 October and Charles J. in A County Council v. K, D and L (supra) at para [89]. ii) When requesting and collating existing materials, all parties should be vigilant to record requests of third parties for disclosure and their responses, so that the spectre of partial disclosure which tends only to prove a case rather than give full and frank information can be dispelled. Furthermore, great care must be exercised when placing reliance on materials that have not been produced either as ‘original medical (or other professional) records’ or in response to an instruction from a party as these materials may contain an assumption as to the standard of proof, the admissibility or otherwise of hearsay evidence and other important procedural and substantive questions that relate to the differing purposes of other enquiries (e.g. criminal or disciplinary proceedings); iii) Once instructed, experts in their advice to the court should conform to the best practice of their clinical training and, in particular, should describe their own professional risk assessment process and/or the process of differential diagnosis that has been undertaken, highlighting factual assumptions, deductions there from and unusual features of the case. They should set out contradictory or inconsistent features. They should identify the range of opinion on the question to be answered, giving reasons for the opinion they hold. They should highlight whether a proposition is an hypothesis (in particular a controversial hypothesis) or an opinion deduced in accordance with peer reviewed and tested technique, research and experience accepted as a consensus in the scientific community. They should highlight and analyse within the range of opinion an ‘unknown cause’, whether that be on the facts of the case (e.g. there is too little information to form a scientific opinion) or whether by reason of limited experience, lack of research, peer review or support in the field of skill and expertise that they profess. The use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance; iv) An expert should be asked at the earliest stage and in any event should volunteer an opinion whether another expert is required to bring a skill or expertise not possessed by those already involved or in the rare case a second opinion to a key issue that has been identified by the court and, if possible, what the question is that should be asked of that expert. In any event, far greater heed should be paid to advice from experts as to the questions that they are able to answer and that might be relevant to the court’s determination; v) The ‘Code of Guidance for Expert Witnesses in Family Proceedings’ at Appendix C to the Protocol (supra) should be amended to incorporate the recommendations made above.

[92]As I have remarked in judgment the distinction between a child protection recommendation or decision and a treating or forensic expert’s opinion is of singular importance. Those agencies and individuals charged with child protection functions operate within statutory processes, with powers, duties and responsibilities that are set out in primary and secondary legislation or in codes of guidance that sometimes have statutory force (see, for example guidance issued under section 7 of the Local Authority Social Services Act 1970 which must be followed absent exceptional circumstances by local authorities) and may otherwise operate through the terms and conditions of employment or the code of conduct of the professional concerned. There are specific guidance documents that relate to more complex medical and social circumstances and the way they need to be managed. The court should be vigilant not to disturb these carefully crafted processes without very good reason.

[93]The roles that the many professionals play in these processes are necessarily situation specific and depend upon the quality of the inter-disciplinary structures and relationships that are in place and the manner in which the child protection question arises. It is not uncommon that health and social care professionals have very different perspectives to bring to cases and families and they should not be constrained from raising questions that they believe are relevant and sometimes fundamental to whether a child’s welfare is being or is likely to be safeguarded.

[94]Within court proceedings and the parties’ preparation pre-proceedings there is of necessity a change of emphasis. It is the court’s function to identify key issues and to decide what evidence is relevant to the issues identified. The identification of the issues that are relevant to the threshold and welfare questions which the court is required to determine is the case management skill of the judge and the lawyers involved and that involves a heightened scrutiny of what is agreed and not agreed including experts’ agreements and disagreements. An over-riding desire to promote agreement can lead to key issues being obscured and thereby not investigated by the court.

[95]Greater time and energy should be expended isolating out the relatively narrow and critical key issues that have to be determined in a case both before and after assessments and experts’ reports are available i.e. both pre-proceedings and after issue. That will of necessity lead the family courts into more sophisticated, judicially controlled case management hearings during which advocates can expect to be challenged as to the admissibility and quality of the materials before the court and the relevance or otherwise of agreements and disagreements between professionals. Agreements and disagreements have to be scrutinised for what they are: an exercise in skilled and pragmatic deductive reasoning not a substitute for the court’s duty to make its own decision. Inter-disciplinary processes are essential to the family justice system but they are not substitutes for the court’s function.

[96]Finally, this court has heard a deal about the supposed distinction between treating (i.e. clinical) and forensic experts. On the basis that it was asserted that there is causative significance in the reliance on clinical opinion in this case, the court has been asked to give guidance that might lead to the evidence of witnesses of fact and opinion who were and/or are the treating clinicians being dissuaded from giving expert evidence in family proceedings. The conventional argument in support of this proposition can be found in the report of Baroness Kennedy of the Shaws on ‘Sudden Unexpected Death in Infancy’ (September 2004):

“it is our view that paediatricians involved in the acute management of patients should not be expected to give expert testimony in cases involving those patients. It is a sine qua non that doctors treating patients must develop partnerships with them and with the immediate family to ensure the best medical outcome. This will inevitably result in a degree of intimacy and therefore subjectivity when evaluating the case as a whole. This is the opposite of what is required of the expert witness, who should be objective, impartial and detached”

[97]It should be noted that reliance is placed on this proposition to demonstrate an obverse circumstance: in this case it was the child protection imperative that provided the subjectivity i.e. it is the human response to the need to protect a vulnerable child rather than the professional relationship with a parent that is under scrutiny. It is what Booth J. used to describe as the inevitable partiality of social and health care witnesses towards a child who is in their professional care. Their partiality is not a matter for criticism, it is simply a factor that has to be considered when assessing the cogency of their materials. A function that is hardly new to judges of this Division and is not a reason for the exclusion of treating experts.

[98]While acknowledging that the court should have in mind the distinct roles of treating expert and forensic expert (particularly in the field of mental health where the doctor / patient relationship may be more complex: see Re B (Sexual Abuse: Expert’s report)

[2000] 1 FLR 871

CA) and should be careful to scrutinise the purpose for which each expert’s report is provided, this court should not do anything to dissuade experts from providing the assistance that the court needs. Both forensic and treating experts will be subject to the same duties to the court: treating experts of fact and opinion often provide the most valuable of original materials including the immediate examination, recorded history and tests that may be difficult or impossible for a forensic expert to replicate. They are and should be the first port of call for the local authority when it needs to commission specialist assessments and reports to inform its knowledge of the background and precipitating circumstances and its core assessment. They are often called upon by the court to provide such materials when for whatever reason they are missing from the proceedings.

[99]The mischief in the instruction of Dr Forbes was not that he was a tertiary referral treating clinician. In my judgment, the same problems would have arisen in this case had he been independently instructed as a forensic expert. The mischief was that the court allowed its identification of the key issues to become obscured by an apparent agreement between experts. Whatever the similar debate may reveal in respect of the criminal justice system, about which I make no comment at all, the proposition that treating experts should not be expected to give evidence in cases involving their patients does not apply nor should it apply to the family justice system save in the terms explained in Re B (supra) i.e. that their role is distinct, is recognised to be so and should not be confused with the forensic expert’s role.

[100]It may be that in due course the opportunities that exist in family proceedings for case management, issue identification and dispute resolution hearings can be developed to further enhance the scrutiny of experts’ evidence by the court prior to the ultimate resolution of the issues in a case at a full hearing. For example, there may be merit in considering the approach of the courts in the United States of America as derived from Daubert v. Merrell Dow Pharmaceuticals Inc (1993) 509 US 579. But at the end of the day whether it be during case management, issues resolution or at a contested hearing the court must engage in the process described by Stuart-Smith LJ in Loveday v Renton [1990] 1 Med LR 117 at 125:

“In reaching my decision a number of processes have to be undertaken. The mere expression of opinion or belief by a witness, however eminent, … does not suffice. The court has to evaluate the witness and soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic and proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence”

Publicity

[101]Although the court has had the benefit of extensive submissions on the appropriateness of publicity, it has been agreed by all concerned, including Dr Forbes, that this judgment should be given in public. The names and precise whereabouts of K and his parents have been anonymised at the request of and with the agreement of the parties on the ground that the family expressly want to remain out of the public eye and the public debate so that might repair their lives. Any other decision would be manifestly contrary to the interests of K who now relies exclusively upon his parents for stable and nurturing care which I accept would be disrupted and compromised by their identification or by any attempt to solicit further information from them when that is against their wishes.

[102]The proceedings are now at an end and accordingly if this judgment is handed down in public neither section 12 of the Administration of Justice Act 1960 nor section 97(2) of the Children Act 1989 will protect the identity of anyone including the child: Clayton v. Clayton

[2006] EWCA Civ 878

[2006] Fam 83

. Having exercised the ‘disclosure jurisdiction’ to release the judgment into the public domain it is necessary to simultaneously exercise the ‘restraint jurisdiction’ if the identity and whereabouts of K and his family are to be protected.

[103]In the ‘ordinary’ circumstance I would have been constrained not to release this judgment until after there had been an adjudication on anonymity, involving service of a restraint application upon the media in accordance with the President’s Practice Direction (Applications for Reporting Restrictions Orders

[2005] 2 FLR 120

and the Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications for Reporting Restrictions Orders)

[2005] 2 FLR 111

and so as to comply with section 12 (2) of the Human Rights Act 1998. However, fortuitously, in this case and at an earlier stage in the proceedings those steps were taken and a contra mundum order was made to prevent the identification of the child and his parents until K achieves his majority (i.e. at age 18) or an application is made to vary the same. It is important to remind the reader that that very important protection remains in place. Judgment Ends. Case Number: MA05C01045 IN THE HIGH COURT OF JUSTICE MANCHESTER DISTRICT REGISTRY FAMILY DIVISION BEFORE THE HONOURABLE MR JUSTICE RYDER B E T W E E N: OLDHAM METROPOLITAN BOROUGH COUNCIL Applicant and [1] GW 1st Respondent and [2] PW 2nd Respondent and [3] KPW (A child, by his Children’s Guardian JC) 3rd Respondent _____________________ ORDER ______________________

[1]Duration Subject to any different Order being made in the meantime, this Order shall have effect: In the case of the mother, the father and the child, until 8th November 2022, the 18th birthday of the child whose details are set out in Schedule 1 to this Order.

[2]Who is bound? This Order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the Order has been made.

[3]Publishing restrictions This Order prohibits the publishing or broadcasting in any newspaper,. magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of: (a). the name and address of:-(i) the child;

(ii) the child’s parents (whose details are set out in Schedule 2). (b) any picture being or including a picture of the mother, the father, the child, or of any place at which they are residing; (c) any other particulars or information relating to the mother, father and the child. IF, BUT ONLY IF, such publication is likely to lead to the identification of the mother, father, and/or the child as being the persons in respect of whom false findings were made at first instance, the parents being found to be possible perpetrators of non-accidental white matter tears to the child’s brain, and which findings were overturned by the Court of Appeal, and in respect of whom it is now agreed by the relevant medical experts that the changes to the child’s brain were not caused by inflicted injury.

[4]No publication of the text or a summary of this Order (except for service of the Order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.

[5]Restriction on seeking information. This Order prohibits any person from seeking any information relating to the mother, father and/or child from any of the following:(a) the child;

(b) the mother and father;

[6]What is not restricted by this Order? Nothing in this Order shall prevent any person from:-(a) publishing information relating to any part of a hearing in a Court in England and Wales in which the Court was sitting in public and did not itself make any Order restricting publication.

(b) seeking or publishing information which is not restricted by paragraph 3 above.

(d) seeking information from the responsible solicitor acting for any of the parties, whose details are set out in Schedule 3 to this Order.

(e) seeking or receiving information from anyone who before the making of this Order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).

(f) publishing information which before the service on that person of this Order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.

[7]Service Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the Applicant and may be served by any other party to the proceedings:(a) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or the website administrator (in the case of an internet website) and/or to their respective legal departments; and/or

(b) on such other persons as the parties may think fit, by personal service.

[8]Further applications about this Order The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than 48 hours notice to the parties. DATED THIS 20TH DAY OF MARCH 2007. WBW/GW.20G

Order

Residential Assesment)

[2004] EWCA Civ 24

[2004] 1 FLR 876

at 891 para [54] per Thorpe LJ where it was held: “in the case of P,C and S v. United Kingdom

(2002) 35 EHRR 31

[2002] 2 FLR 631

the statement of general principles between paras [113] and [120] reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”

Cited in 46 later judgments

and 37 more of the most senior