Any family lawyer will tell you that finding a competent independent expert who can report in a timely manner is the Holy Grail of the family justice system. The 26-week target for concluding cases in care proceedings is fast becoming a pipe dream, with a narrow pool of in-demand experts unable to report for months and months on end. The President of the Family Division has set up an Expert Witness Working Group, led by Mr Justice Williams, to consider the shortage of medical experts in family cases.
West Sussex County Council v B  EWFC B25 is a prime example of the importance of independent expert evidence in preventing possible miscarriages of justice, and the impact on families of not being able to secure such evidence in a timely manner.
The case concerned four
three [edit 4.7.19] children, C (aged nine months at the time of the final hearing in February 2019), D who was 8 years old, E who was just shy of 10 years old, and F who was 12. The family had been known to social care since 2008, but the circumstances had never been considered serious enough to remove the children from the home until the present proceedings. The current proceedings were instigated after C was admitted to hospital with head injuries in August 2018. The explanation given by the mother was that the baby fell out of his sister, F’s, arms.
C underwent safeguarding medical examinations. Dr Rich, a consultant paediatric radiologist, was of the view that the evidence suggested a non-accidental injury. Dr Katta, a consultant paediatrician also concluded that non-accidental injury should be considered highly likely.
An interim care order (‘ICO’) was made in respect of C on the basis that he and the mother would be placed in a mother and child foster placement. An ICO permits the Local Authority (‘LA’) to share parental responsibility with the child’s parents. The LA had also sought to have the older children placed in foster care. The judge refused to permit the removal of the older children on the basis that they could be adequately safeguarded at home with the father, under the supervision of the wider family.
During the course of the proceedings, three experts were instructed: Mr Richards, a consultant paediatric neurosurgeon; Dr Cartlidge, a consultant paediatrician, and Dr Keenan, a consultant haematologist. For the purposes of this summary, the conclusions of Mr Richards and Dr Cartlidge are most important so I will focus on them. The expert instruction was approved by the court in October 2018, however the experts were not able to file their reports for some time. In the meantime, at a case management hearing in November 2018, the mother sought unsuccessfully to persuade the court that she should be allowed to return home with C or that existing contact arrangements should be reviewed.
There is significant jargon in the judgment so I will try and highlight the key points.
- Mr Richards reported that there were radiological features associated with non-accidental inflicted head injury, not generally thought to be caused by low-level falls, in line with current mainstream radiological opinion. However, he also pointed out that “it has to be appreciated that the majority of infants who suffer low level falls never get imaged because they were clinically well.” It could be that the features present in C’s case are more common in infants who appear well following a low-level fall. In brief: there simply isn’t the research available to conclude that a low-level fall couldn’t cause the changes identified in C.
- Mr Richards also concluded that the opthalmic investigations and skeletal survey did not identify any features associated with non-accidental inflicted head injuries.
- Dr Cartlidge concluded that C was at increased risk of subdural bleeding because of enlargement of the subarachnoid space. He reported that he thought the combination of the subdural bleeding and the acute traumatic effusions were most likely caused by the fall as described by the family.
In short: the conclusions of the expert witnesses challenged the conclusions of the original treating medics that the injury was non-accidental. Given the expert reports, on 6th February 2019, the LA asked for permission to withdraw the proceedings, taking the view that (having analysed the evidence), they would be unlikely to persuade the court that the threshold had been met for the making of public law orders or that C had suffered a non-accidental injury. Permission was granted.
The judgment was not critical of the LA for seeking to remove C from the family home. The judge emphasised that – on the evidence available to the court at the time of the separation of the family – the separation had been justified in order to secure C’s safety. Further expert medical evidence needed to be filed before the court could be in a position to exonerate the parents. Unfortunately, the experts couldn’t file their reports for some time.
The Father’s barrister also pointed out that Dr Cartlidges’ report had been dated 23rd January 2019 yet the LA had refused to permit C and the mother to return home under an ICO before the next hearing on 6th February 2019. The judge’s view was that, given the complexities in this case, and the need to consider whether an experts’ meeting should be convened and whether there should be a fact-finding hearing, the LA had not delayed C and the mother’s return home unnecessarily.
Lessons to be learned
Rather helpfully, the Father’s barrister, Ms Earley, set out the lessons to be learnt in her position statement, which was quoted at length in the judgment. I summarise some of her observations in bold below:
- Professionals need to consider whether children can be safeguarded in the home. 
Comment: The Judge agreed. He had refused to permit the three older children to be removed into foster care, considering it disproportionate. Instead, they remained at home with the father, under the supervision of the wider family. The Father’s barrister commented that if the court had approved the LA’s initial plan (to remove all four children and place them separately in foster care), this “would have been emotionally traumatic and would have resulted in a wholly unwarranted six months’ separation for these children.”
Anecdotal evidence would suggest that social workers – in light of Baby P and other similar cases – are increasingly wary of leaving children in the home when safeguarding concerns have been raised. This may lead to knee-jerk plans of removing the children rather than exploring how best they can be protected within the family. It may also be the case that overstretched social workers and team managers simply aren’t conducting nuanced analyses which consider every possible option. Whatever the reason for the LA’s initial proposed plan, the judgment reiterates the draconian nature of separation and the need for the LA to consider alternatives before arriving at a plan of removing the children from the family. Had the children been placed in foster care, they could have suffered huge trauma.
- It is very important that treating medical professionals disclose all material when there are ongoing care proceedings.
Comment: The Father’s barrister was referring in particular to Dr Landes of Alder Hey Hospital writing to Dr Katta, C’s lead paediatrician, in September 2018, flagging up evidence of rickets on C’s skeletal survey. Rickets was also identified as a possible issue by Dr Cartlidge in his report. Dr Landes’ analysis only surfaced in January 2019, his report not being included in previous medical disclosure that had been provided to the court. While nothing really turned on the concern around rickets in this case, early awareness of the issue would have alerted the parties and the court that C may well have an underlying condition to explain his injuries.
- It is very important that treating medical professionals who have reached conclusions of non-accidental injury keep their diagnoses under review. 
Comment: The Father’s barrister commented that Dr Katta’s conclusion that a non-accidental injury was “highly likely” doesn’t seem to have been revisited at any stage upon receipt of further medical evidence. It is imperative that medical professionals remain open-minded and willing to reconsider their original opinions. There’s nothing controversial about this observation.
- “Had the Local Authority and the court been relying solely on the treating medics the outcome of this case would be vastly different and a travesty of justice. In his January “view” the President spoke of the current difficulty locating paediatric experts to report in cases such as C. This case highlights how imperative it is that the parties and the court can have timely access to experienced experts who can provide an independent analysis’.” 
Comment:I have set this ‘lesson’ out in full as it can’t really be put in better terms. The judge commented that had the expert evidence been available prior to January 2019, the family could have been reunited before February 2019.
“It is a source of great sadness that the delay which inevitably results from there being greater demand for expert evidence than there is resource means that justice is delayed and trauma for families increased.” 
The President’s Second View of January 2019 notes the current dearth of medical expert witnesses, particularly paediatric radiologists, paediatric neuro-specialists, forensic pathologists and general paediatricians. As I have pointed out above, a group has been set up to explore these issues in detail. The working group will be hosting a symposium on 4thJuly 2019, attended by legal and medical professionals, to consider the present shortage of experts.
- Mainstream medical opinion has long maintained that low-level falls do not result in extensive subdural bleeding. Dr Cartlidge set out three cases where similar injuries were sustained in such circumstances. Not all of these cases are reported. It is important that details of C’s case are added to this list of cases and are made available to other experts so that they can inform future conclusions drawn by the family court. 
Comment: Again, this is not controversial. However, it is a timely reminder that medical opinion is not fixed but constantly evolving in response to new evidence. HHJ Willans summarised this succinctly with the observation that “scientific understanding changes and today’s medical certainty may be discarded later as research shines light into current areas of darkness.” (C (A Child: NAI) EWFC B15 (24 January 2019), at )
A final note on the expert in family proceedings
It is also worth mentioning the role of the expert witness in family proceedings. Expert witnesses advise the court of their clinical opinion, in light of their expertise. Coverage of this case has stated that “Social services halt family court case after experts say baby injury was accident”. This wording seems to suggest that experts have the final say-so in deciding how care proceedings should conclude. This is not the case. Experts give their evidence, and it is for the judge to assess this evidence in coming to an eventual judgment. (See also The use of Experts in Family Court Cases, a guidance note from the Transparency Project.)
Image – Thomas Hawk on Flickr (creative commons – thanks)