Guidance for Experts in Family (and possibly other) Matters

[2007] EWHC 136 (Fam), [2007] 2 FLR 597 TEDR Volume 12 Issue 2

The Facts

The court was asked to determine certain facts and make recommendations, and in particular to make some findings in respect of an expert (F) in paediatric neuro-radiology, arising out of concluded care proceedings. In the course of his judgment, Mr. Justice Ryder also related the findings and recommendations made earlier in the case by the Court of Appeal and added further recommendations of his own. For the purposes of this summary no distinction will be made between which court made which recommendations.

In care proceedings brought by the local authority as applicant, the judge relied solely on the evidence of F in finding that one or other of the parents had been responsible for a non-accidental brain injury sustained by their infant son as a result of being shaken.

The parents appealed against that decision and asserted that the report of a second expert, which clearly and fundamentally disagreed with the conclusions drawn by F, supported the parents’ case that their infant child’s condition had an innocent origin. That second opinion had not been adduced before the judge.

The parties. prior to the appeal being heard, agreed that the judge’s findings could not stand and that the case should be remitted to another family judge for a rehearing.

Following the instruction of further medical experts, a consensus of medical opinion was reached, with which F agreed and which was very much at odds with his earlier opinion on which the trial judge had relied.

The Issues

Guidance was given on the advisability (or rather the non-advisability) of the court relying on a single expert in care proceedings.

Counsel for all the parties subsequently invited the court to give judgment in open court in respect of the agreed facts and to address what went wrong so as to avoid such mistakes being made in the future. Certain issues relating to the conduct of F in his capacity as an expert witness were also addressed.

The matter had come 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 the High Court as soon as possible.

In a Judgment delivered on the 31st October 2005 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. Mr. Justice Ryder observed that that 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 Order: Residential Assessment) [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.”

The Decision

Given the weight of cogent evidence now available to the court, the following findings were made by consent by the Court of Appeal:

(i) The infant had never been a victim of non-accidental injury;

(ii) the care by the parents was and always had been exemplary;

(iii) The parents relatives had acted promptly and appropriately in obtaining medical treatment for him;

(iv) the medical experts were in agreement that K’s brain injury was likely to have been caused by asphyxia pre-delivery, and it was very unlikely that non-accidental brain injury could have caused the pattern seen in imaging scans of the infant’s brain

(v) F had genuinely formed a different professional opinion on a very difficult problem, but was in error in that he had unconsciously gone outside his role as an expert witness and adopted the role of a decision maker.

(vi) The court would not criticise F for his opinions, but observed that the language he had used in his first report had obscured the highly unusual nature of the case.

(vii) In addition to the guidance formulated by the court in this case, the following recommendations were made:

(a) local authorities should always write a letter of instruction when asking a potential witness for a report or opinion (either before or after legal proceedings are underway) which should comply with current principles;

(b) when requesting and collating documentation in the case, all parties should be careful to set out requests made of third parties to provide disclosure and of their responses – so that the possibility of less than complete disclosure that sought to establish a case (rather than give a full and frank and balanced position) could be put to rest. In any event considerable care needed to be taken when placing reliance on materials that had not been produced either as “original medical (or other professional) records” or in response to an instruction from a party. The reason for this was that such documentation could include assumptions as to certain procedural and evidential matters such as the standard of proof and the admissibility of hearsay evidence (which assumptions might not be correct).

(c) when appointed and instructed, expert witnesses in providing assistance to the court should comply with the best practice of their clinical training. This included specifically that:

(i) they ought to set out their risk assessment process and the process of differential diagnosis that had been undertaken;

(ii) they should make it clear when they had made factual assumptions and drawn any conclusions based on those assumptions;

(iii) they ought also to point out any unusual features of the case;

(iv) they ought to expressly refer to any contradictory or inconsistent elements;

(v) they ought to identify the range of opinion on the question to be answered, giving reasons for the opinion held;

(vi) they ought to highlight whether a proposition was a hypothesis or an opinion arrived at in accordance with a peer reviewed and tested technique, research and experience accepted as a consensus;

(vii) they ought to point out and assess any “unknown cause”.

The court observed that the use of what was called a “balance sheet approach” to the factors that supported or undermined an opinion could be of considerable help.

The court expressed the view that experts generally may have become too focused in trying to reach agreed solutions to difficult problems. Experts should inform the court of their agreements and their disagreements – the latter can often be as important as the former.

In addition the court recommended that an expert should be requested at the earliest stage as to whether in his view another expert was needed to bring some skill or expertise not possessed by those already involved or (in rare instances) a second opinion on a key issue identified by the court and, if possible, what questions should be asked of that expert;

The court proposed that the current “Code of Guidance for Expert Witnesses in Family Proceedings” should be amended to incorporate the above recommendations.

Comment

An immensely important case for medical experts involved in family and other cases.