[2010] EWCA Civ 1000 TEDR Volume 15 Issue 3

The Facts

This was an appeal from Mostyn J. against an Order discharging all but one care Order in respect of 6 children who, thereafter, would return to their family home.

The evidence before the Judge, some of which related back to previous Court proceedings, was in the form of factual evidence from an Independent Social Worker (who had assessed the family three years previously); the Health Visitor; and a Support Worker from “Home Start” who had worked extensively with the family.

In terms of factual evidence, there was a distinct absence of the types of common features or harm one would expect. In fact, the evidence revealed that the parents appeared to be able to cope and to accept help.

On the other hand, the Local Authority’s case was centred upon the evidence of a Psychologist who, in broad terms, had concluded that, the personality of the mother (and in particular the combination of the mother with the father) was such that the parents were not likely to be able to effectively parent the children.

The issue

Should the psychological assessment prevail despite the absence of any history of significant ill treatment or harm and, indeed, positive empirical evidence that the parents had been seen to cope effectively? In other words, was the Judge entitled to prefer empirical or factual evidence to the Expert opinion derived from the psychological profiling?

The Decision

Overall, the answer was held to be “yes”, the Judge was entitled to prefer empirical or factual evidence to the opinion of the expert. Clearly, the expert evidence is not to be rejected without good reasons (which must be explained). It is the Judge’s function to make the decision. He must not fall into the trap of “being an expert”, but he must weigh all of the evidence up. He must not, however, simply rely on his own impression of the parents in the witness box (as he did not do in this case).

Comment

The factual background of a case is important. This reinforces the point that whilst the expert must not trespass on the role of the Judge, an appreciation of the facts or alternative opinions based upon different interpretations of the facts, are matters that the Expert should consider and be prepared to explain.

Medical experts reference and the consumer need for 2nd Expert

[2006] 1 FLR 543, [2005] EWCA Civ 1247 TEDR Volume 11 Issue 1

The Facts

The appellant parents (W) appealed against an order made in care proceedings brought by the Oldham Met Borough Councul in relation to their son. After the conclusion of the first limb of a “split” hearing, the judge had held that the son had suffered a non-accidental brain injury as a result of a shaking episode, that the injury had been caused by one of K’s parents, and that the threshold criteria under the Children Act 1989 s.31 were satisfied.

The judge relied on the evidence of a single expert in paediatric neuro-radiology and had dismissed applications by W to instruct a second expert. The local authority did not initially object to a second opinion being sought by the parents but did oppose the application when it became clear that the provision of that second opinion would delay the hearing.

The report of a second expert (when it was obtained) had expressed a clear and fundamental disagreement with the first expert and supported the parents’ case that their son’s injuries were not the result of any deliberate infliction of harm. In the circumstances, the parties had

agreed that the judge’s findings could not stand and that the case would have to be remitted to another family judge for re-hearing.

The Issues

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

The Decision

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance.

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all “deferred” to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

Comment

A very important case in the child welfare arena. It shows the dangers and limitations of single expert witnesses in certain cases. It also shows the significance of having a second opinion to enable the court to make a balanced and objective decision. The case made the point that it would be wrong to rule out opinions from those with previous clinical involvement as that involvement could provide for expertise and excellence to be passed on to the court – however the other side of the coin was that such involvement heightened the strength of the argument for a second opinion from an independent expert not involved in the previous clinical history of the case.

Expert should only see documentation relevant to issues

[2008] EWCA Civ 365 TEDR Volume 13 Issue 2

The Facts

The local Authority were seeking a Care Order relating to the fifth child of a couple. The first four children were already the subject of Care Orders.

Accordingly, there was a great deal of material which justified the concerns of the Local Authority and founded its application for a Care Order.

As part of that history there were reports and records relating to possible sexual misconduct by the father containing two cautions; two prosecutions resulting in two acquittals; and various other complaints and assertions which had never been the subject of any criminal or family proceedings.

The application for a Care Order itself was not founded on any allegation of sexual misconduct by the father or any suggestion that he represented a sexual risk to the child.

The Issues

Should the papers relating to the past reports of sexual misconduct go to the expert (an independent social worker) who was to be instructed jointly by the parties?

The Decision

The documents within the Local Authority file included social services records recording the allegations of sexual misconduct and documents expressing opinions as to the validity of those allegations; Police reports and documentation relied upon by the Prosecution in support of the charges for which the father was acquitted.

In answering the question, “what of the documentation ought to be sent to the expert?” the following points were decided:

1. The principles set out in Re: R (Care Disclosure: Nature of Proceedings) [2002] 1 FLR 755 and particularly the passage citing Re: M and R (Child Abuse: Evidence) [1996] 2 FLR 195 are to be extended to apply to the preparation of material conveyed to experts. The principles set out therein are as follows:

a. If the Local Authority decide not to pursue the allegations of sexual abuse and the threshold criteria for a Care Order are met on other grounds, then at the welfare or disposal stage, the Court cannot assess risk on the basis that:

i. There was sexual abuse; or

ii. There was a suspicion that there was sexual abuse.

B. The situation is analogous with a case where such allegations had been made but the Court had been unable to make findings that there had been such abuse;

c. Unless and until the Local Authority embark on proceedings to prove such allegations (and they are proved/admitted) it is not open to the Local Authority to:

i. Advance care plans;

ii. Deal with the family on the basis that they believe the allegations to be true.

2. With that in mind, whilst nothing relevant to the issues should be excluded from the documentation, unnecessary material must be rigorously excluded so as not to unnecessarily inflate the costs incurred by the Expert by burdening him or her with papers that are not significant to the task;

3. Local Authorities should not introduce documentation which may be perceived (perhaps reasonably) as being unfair to the parent in the sense that it is purely prejudicial. The capacity to improve cooperation between parents and Local Authorities should not be unnecessarily prejudiced by presentation of documentation that is regarded by the parents as “below the belt”.

Accordingly, evidence relating to the cautions (which rested on confessions) and relating to the two prosecutions (which were matters of Public record) were relevant. The allegations were irrelevant (although Hughes L.J. Stated that it may be possible for the fact of allegations to be relevant in some cases – irrespective of the truth of them – albeit the details thereof or opinions about them could not be). The opinions expressed about those allegations were agreed to be irrelevant.

Comment

This case concerns a Public law family case where emotions may be running high and unproven allegations can inevitably make matters worse. Whilst allegations (true or not) could be relevant to the issues, if they are not relied upon and/or proved, they will play no part in the future conduct of the case if an Order is made. Therefore, the parties should at least question the relevance of the fact allegations have been made. What is clear is that the contents of those allegations and any opinions that have been expressed about them are irrelevant.

The principle that an Expert should not be burdened with irrelevant documentation is of general application. Consideration of what the instructing party/parties is/are trying to prove and therefore what documentation is relevant to those issues is always essential to avoid unnecessary cost or problems with the recovery of costs at the conclusion of the case.