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Med Sci Law OnlineFirst, published on April 27, 2015 as doi:10.1177/0025802414567606
Review article
Child abuse and child protection: The role of the expert
Medicine, Science and the Law 0(0) 1–5 ! The Author(s) 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0025802414567606 msl.sagepub.com
Alec Samuels
Child protection, such as an allegation of nonaccidental injury (NAI), especially non-accidental head injury (NAHI), in a child casts a heavy responsibility upon the courts. In the criminal court, the jury must decide upon murder, manslaughter or grievous bodily harm, or acquittal. In the civil court, the judge must decide whether to remove the child from the parents.
Triad The evidence in NAHI cases usually comprises the triad – the group of three – encephalopathy, subdural haemorrhage and retinal haemorrhage, although not all three may be present. If the triad remains unexplained or equivocal, the evidence does not measure up to the burden and standard of proof, the case remains unproved. The defence often seek to rely upon the unified hypothesis defence. The degree of force or rough handling needed to inflict NAI is not susceptible to scientific proof. Relevant factors may include the age of the child, the severity of the injuries, retinal haemorrhage and comparatively weak neck muscles.1 The general view appears to be that the triad arises from trauma; the hypoxia cause has been discredited. There may be evidence of injuries additional to the normal triad,2 and also evidence from a previous incident leading to a hospital admission.
The experts
based upon analysis, and he displays internal logic and consistency. An expressed opinion is based upon up-to-date knowledge and experience. Research material used is drawn from reputable peer-reviewed material, not merely an unsubstantiated academic hypothesis. The report is admirably succinct.3 Reasons are given, and they are sound reasons. Naturally, the good expert is independent and impartial and objective and unbiased. His overriding duty is the presentation of scientific and medical truth to the court, as opposed to advocacy of a cause or theory. He offers a statement of the truth as scientifically and medically perceived. He should certainly believe in his evidence; he must be confident and convincing, but zeal and dogmatism go too far. The expert who feels that the challenge to his evidence is putting his reputation at stake may be prone to exaggerations and emotion. He should listen to and consider opposing views, and be willing to amend or moderate his own view where appropriate, in a responsible manner. No one has a monopoly of wisdom. What has been widely taken as conventional scientific and medical wisdom yesterday may be widely discarded tomorrow. Today’s orthodoxy may be tomorrow’s outdated learning. In science and medicine, the unknown can never be ruled out, especially in the developing areas. In an NAHI, he has considered resuscitation injury, ischemia, physical injury, trauma and a possibly unknown cause. The child suffered fits and died. The post-mortem indicated skull fractures and brain injury. However, there was evidence of congenital rickets caused by vitamin D deficiency, and suboptimal hospital treatment in respect of blood. The standard of proof required for a criminal charge and a care order in respect of another child of the family was not made out.4 The good expert is not reluctant to make a concession; he does not rule out all alternative possibilities. He is of the opinion that the injuries were nonaccidental, and he gives compelling evidence to that
Bearing in mind the burden of proof, beyond reasonable doubt in the criminal case and the balance of probabilities in the civil case, the jury, directed by the judge, in the criminal case and the judge, by himself, in the civil case must not so much choose between the experts as assess the quality of the experts and their evidence. Many factors go to identify the good as opposed to the not so good expert. As every case is fact specific and turns upon its own particular facts and circumstances, the good expert is Barrister, formerly Reader in Law in the University of Southampton, meticulously careful to get the facts correct, both factformerly President of the Medico-Legal Society, UK ually and scientifically. He has recent clinical and forensic practice and experience. He keeps within his Corresponding author: area of special expertise and experience. He identifies Alec Samuels, Barrister, United Kingdom. the salient issues, and with clarity. Downloaded His evidence is Email: [email protected] from msl.sagepub.com at UQ Library on June 16, 2015
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2 effect, but he does not insist that he could not possibly be wrong. Cogent evidence should not be allowed to degenerate into scientific or medical prejudice or bias, for that could be self-destruction. The report should be full and comprehensive. It is poor practice to submit an incomplete or premature report hoping to be able to supplement or amend the report as the case progresses. Such practice quickly destroys credibility. The report in form must conform to Criminal Procedure Rules part 33 plus Practice Directions or the Family Procedure Rules part 25 plus Practice Directions, both being phrased in similar terms. Thus, the expert gives his qualifications and experience, the instructions received, the examinations and tests carried out, the literature examined, the range of professional opinions on the matter known to him (including those with which he does not necessarily agree), his analysis, a summary, and his reasoned opinion. Furthermore, a statement of compliance with the Rules is required and a declaration of truth.5 The treating clinician is an expert in one sense and may be wholly credible and compelling, but he cannot bring the objectivity of the outside independent expert.6
Minority It may help if the witness belongs to the mainstream in his speciality and his evidence accords with contemporary mainstream opinion. However, a minority opinion may be based upon responsible innovative creative research, experimentation and experience, and be deserving of respectful attention. It may indeed be the better opinion.
Suspicion
Medicine, Science and the Law 0(0) inherently risky and dangerous. Additional nonexpert evidence should be adduced.7
Pre-trial Much of the success of a trial lies in early thorough preparation. The judge has been involved in such cases both on the Bench and at the Bar, counsel have appropriate experience, and the solicitors give good support. An understanding of the medical issues on the part of the lawyers cannot come amiss. The duty of the judge is to manage the case from an early stage, and in particular to ensure that the witnesses are marshalled and controlled. Early pre-trial disclosure assists everybody and helps to avoid the unforeseen. The expert must disclose and exchange his report, carefully consider what the other expert says, and in good time meet the other expert and discuss the matter and agree upon the issues still outstanding between them, so that they may indicate in the report where they agree and where they disagree, with reasons. Thus, the parties and the judge are fully apprised of the situation, and the trial may proceed expeditiously and effectively. Where two or more defendants wish to call separate experts, the judge may in an appropriate case order a single joint expert. With a copy of the Rules to hand, and perhaps a checklist to assist, systematic progress may be achieved.8
Replace old expert with new expert The expert instructed by A makes a report favourable to A. But having met the expert for the other side, he changes his mind completely. So A wants to proffer a favourable report from a new expert. The judge will not normally allow this, as expert shopping, searching for a new favourable expert, is discouraged. However, the new expert’s report might be admitted if it could be shown that the original expert behaved in an unsatisfactory manner, for example he went beyond his expertise, acted incompetently or improperly, or gave no good reasons. But the judge might require the disclosure of the earlier report as a condition of adducing the new report. An application for a new expert to substitute for a genuinely retiring expert in a case which has continued for an unexpectedly lengthy time seems reasonable.9
Propositions about injuries must be advanced with caution. The greater the physical force applied, the more severe the injury is likely to be, although seemingly minor force can cause severe injury. The more severe the injury, the more likely it has been caused by greater force. However, a child may be particularly susceptible to bruising. Coincidence may give rise to suspicion. This is the second child death in the family, or another child in the family suffered injury. But coincidence in itself is equivocal. Suspicion cannot in itself justify an inference of guilt – there must be more. Perhaps further Practical difficulties testing or treatment might assist. The defendant D may have been seen striking the Clinicians and other experts are busy people. Many child, although this is unlikely. But there may be evido not like to be involved in court cases, which can be dence of a lack of affection and bonding; of other time-consuming and uncertain, although the judges injury to the child; of deception and lies to doctors, strive to accommodate the experts. The reduction in social workers and teachers; of failure to report injury the availability of legal aid and the reduction in fee or to take prompt action on the part of D. The ultimlevels have further increased the reluctance of experts ate decision in the case on expert evidence alone, howto take on cases. The Legal Aid Agency may refuse to ever seemingly persuasive that expert Downloaded evidence, is pay for an expert, or cap the fees.10 The absence of from msl.sagepub.com at UQ Library on June 16, 2015
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Samuels legal aid may mean either that the party bears the costs or there is no expert report.11 Medicine is an ancient and honourable profession, with a fine record of public service. Every man is a debtor to his profession. Perhaps in conjunction with the Royal Colleges, every NHS employer should agree to release and facilitate consultants and similar experts to do, say, a couple of cases a year if called upon to do so. Failure to obtain legal aid will mean that the lay party will appear as a dreaded litigant in person LIP. The judges are constantly urging that vulnerable parties need representation in order to ensure a fair trial.12 The judge has an overriding duty to restrict expert evidence to that which is reasonably required to resolve the proceedings.13 In order to expedite and simplify child care cases, meet the 26-week rule, save public money and overcome the alleged misuse and overuse of experts, the Family Procedure Rules and the judges now require that the presence of an expert must be ‘necessary’ in order to be justified, and this has certainly had the effect of raising the bar. Necessary would seem to lie somewhere between indispensable and merely useful. Necessary evidence must be evidence that is likely to make a real contribution the case, so far as may be ascertained before the hearing.14 Factors to be taken into consideration include the likely impact upon the proceedings of having an expert, the timetable and the cost, and there already is evidence available on the issue, or it can be readily obtained from another source. The judge is quite likely to press for a single joint expert. Where the experts from both sides agree that there is no evidence of underlying bone disorder, the judge is unlikely to agree to hear further expert evidence for testing purposes.15 The judge may feel that the evidence of a biomechanical engineer regarding the tipping of a child’s bouncy chair in the absence of any other evidence would be speculative and unnecessary.16
All the experts agree that it was this or that, or A or B
3 assessed on such evidence as may be available as to the suitability of that one parent.
The injury or death was or might have been ‘innocent’ The decision maker – the jury in the criminal trial and the judge in the civil proceedings – may be unable to eliminate the real possibility of an innocent explanation. The injury or death may indeed have arisen from an unknown cause. The children suffered skull fractures and subdural haematomas; there may have been inherited vulnerable characteristics. The evidence, expert and non-expert, cannot eliminate the real possibility. Despite real anxieties, the threshold for burden and standard of proof has not been attained. A conviction cannot be made; a care order cannot be made.18
Summing up In summing up, the judge must not just repeat or paraphrase the expert evidence. He must identify the issues, marshal and state the relevant salient points on both sides, and give guidance on how to evaluate evidence, especially conflicting evidence.19
Judge rejects unanimous expert evidence The judge may reject unanimous expert evidence, but he should only do so after rigorous analysis and good reasoning.20
Fresh evidence On appeal, application may be made to adduce fresh evidence. The general principle is that such evidence may be admitted if it was unknown at the time of the trial or could not reasonably have been discovered. Evidence may not be kept in reserve in case of an appeal. If fresh evidence is admitted in a criminal case, the Court of Appeal will (i) dismiss the appeal if satisfied that the evidence would not have affected the decision of the jury or (ii) if it might have affected the decision of the jury, quash the verdict or (iii) quash the verdict and order a retrial.21
All the experts agree that either the child died by way of smothering or suffocating at the hand of the mother, NAI, or by way of some unknown cause or Child protection accidental injury, but they cannot say which. Similar difficulty can arise where all the experts agree and the All those involved with children have a high moral, judge finds that NAI was committed by either A or B, social and legal duty of child protection. All must be neither having any credibility, but cannot identify alive or alert to the possibility of abuse. The duty which was the perpetrator. The likelihood of the applies particularly to doctors, nurses, health profesinfliction of further harm cannot be attributed with sionals, social workers, teachers and such like. Daniel any confidence to A or to B. State interference in the Pelka, a NAI and NAHI case, died in 2012 because family must be justified.17 If the child were to remain although the abuse was seen and reported, everybody assumed that somebody else was taking preventive with A and B, the risk would clearly continue. If the action. There was no co-ordination, nothing was child were to remain with only A or B, then an appraidone, and the child died. sal of the likelihood of harm to theDownloaded childfrom must be msl.sagepub.com at UQ Library on June 16, 2015
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The good expert A judge recently encapsulated the qualities of the good expert.22 The good expert has appropriate qualifications and long and contemporary NHS experience. The facts are accurately stated. The report reflects the evidence given at the trial. All relevant considerations are taken into account. The report is internally consistent. The report reflects the opinion of an appropriate body of medical practitioners. The report may be described as given in good faith (virtually to be taken for granted), competent, logical, not extreme or eccentric, reasonable, responsible and respectable. The judge can then make his decision. By contrast, a judge23 found it necessary to make the following criticism of an expert: Overly keen. Engaged in creative advocacy. Side-stepped the issues. Equivocated. Flew in the face of common sense. Stepped outside his expertise. Gave evidence contrary to the literature. Was uncritical. Forgot his duty to the court. The Cleveland Report24 by Butler-Sloss LJ (as she then was) in 1988 into alleged child abuse, anal dilation, drew attention to the need for training, specialist knowledge, a multidisciplinary approach and sensitivity.
Medicine, Science and the Law 0(0) Questions: How can we better protect the vulnerable child? How can we better protect the innocent parent from a false accusation? How can we improve the quality of expert evidence? Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.
Notes
1. R v Harris [2005] EWCA Crim 1980, [2006] 1 Cr App R 5, paras 76–80. 2. R v Allen [2005] EWCA Crim 1344. 3. A (A Child) (Fact-Finding: Welfare: Single Hearing: Experts’ Reports) [2013] EWHC 2499 (Fam), [2013] 134 BMLR 61. 4. Islington LBC v Al-Alas [2012] EWHC 865 (Fam), [2012] 2 FLR 1239. A (A Child) (Permission to Appeal Fact-Finding Judgment) [2012] EWCA Civ 1477, [2013] 1 FLR 1187. The Court of Appeal has called for more research into vitamin D deficiency, para 235. 5. For guidance on experts, see R v B (T) [2006] EWCA Crim 417, [2006] 2 Cr App R 3, paras 174–179. R v Harris [2003] EWCA Crim 55, [2006] 1 Cr App R 5. Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWCA Civ 1003. C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 Conclusion (QB), [2014] Med LR 189. 6. H-L (A Child) (Expert Evidence: Test for Permission) Child protection must improve. The various agencies [2013] EWCA Civ 655, [2013] 2 FLR 1434, [2014] 1 realise the need to share and co-ordinate information WLR 1160. and action. Science and technology greatly assist 7. R v Kai-Whitewind [2005] EWCA Crim 1092. R v investigative methods for medicine. The increasing Canning [2004] EWCA Crim 1, [2004] 2 Cr App R 7, specialisation of experts and their improving quality [2004] 1 WLR 2607. should enable the facts of a situation to be better 8. R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr diagnosed and confidently explained. But disasters App R 24, paras 200–221. are still happening; NAI and NAHI remain a most 9. Edwards-Tubbs v J D Wetherspoon [2011] 1 WLR 1373. Stallwood v David [2006] EWHC 2600 (QB), [2007] 1 All disturbing feature of national life and forensic ER 206. BMG (Mansfield) Ltd v Galliford Try examination. Construction Ltd [2013] EWHC 3183 (TCC) [2013] The good expert may be less in evidence because of EWHC 3183 (TCC). the policy of the courts to expedite child cases, the 10. A Local Authority v DS [2012] EWHC 1442 (Fam), inconvenience of court work for the medical and sci[2012] 1 WLR 3098. entific professionals, the dislike of the professionals for 11. JG (A Child) v Legal Services Commission [2013] cross-examination and criticism, and the unattractive EWHC 804 (Admin), [2013] 2 FLR 1174. fees. Parents and other perpetrators of NAI and NAHI 12. L (A Child) (Application Hearing: Legal and other forms of abuse are often skilful at deception Representative) [2013] EWCA Civ 267. and evasion. The decision maker may be able to get no 13. Turner v Walsall Hospital NHS Trust [2013] EWHC further than identifying a person as possibly or even 1221 (QB), [2014] Med LR 379. 14. H-L (A Child) (Expert Evidence: Test for Permission) probably one of a pool of perpetrators. The Crown [2013] EWCA Civ 655, [2013] 2 FLR 1434, [2014] 1 Prosecution Service is reluctant to undertake a WLR 1160. murder or other very serious prosecution because of 15. O-M v The Local Authority [2009] EWCA Civ 1405, the resource implications and the likely conflicts in [2010] 2 FLR 58. medical or scientific expert evidence, conflicts difficult 16. TG (A Child) (Care Proceedings: Biomechanical for the advocates to handle and for the decision maker Engineering Evidence) [2013] EWCA Civ 5, [2013] 1 to penetrate. The local authority is keen to take a child FCR 229. R v Harris [2005] EWCA Crim 1980, [2006] at risk into care for fear of a disaster otherwise occur1 Cr App R 5, paras 81–96. ring, although resources are diminishing. Prosecuting 17. G-C (A Child) (Contact Order: Staying Contact with parents or depriving parents of their children is a very Father) [2013] EWCA Civ 301, [2013] 2 FLR 1307. serious matter, particularly where it turns out to be J (Children) (Care Proceedings: Threshold Criteria) without justification. [2013] UKSC 9, [2013] 1 AC 680. R v Hopkinson Downloaded from msl.sagepub.com at UQ Library on June 16, 2015
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18.
19. 20. 21.
22.
23. 24.
5
[2013] EWCA Crim 795, [2014] 1 Cr App R3. Re L and M (Children) [2013] EWHC 1569 (Fam), paras 45–58. S (a child) (care proceedings: split hearing) [2014] EWCA Civ 25, [2014] 1 FCR 477. Re JS [2012] EWHC 1370 (Fam). Bradford MDC v F [2012] EWHC 557 (Fam), [2012] 2 FLR 1374. Devon CC v EB [2013] EWHC 968 (Fam). J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680, Leading judgment by Lady Hale paras 1–5 and 14–57. R v Arshad [2012] EWCA Crim 18. U (A Child) (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, [2005] Fam 134. A Local Authority v S [2009] EWHC 2115 (Fam), [2010] 1 FLR 1560. R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr App R 24, paras 200–221. M-W (A Child) (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, [2010] 2 FLR 46. R v Pendleton [2001] UKHL 66, [2002] 1 Cr App R 34. R v Harris [2003] EWCA Crim 55, [2006] 1 Cr App R 5, paras 101–102. C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB), [2014] Med LR 189, para 25, Green J. Sardar v NHS Commissioning Board [2014] EWHC 38 (QB), [2014] Med LR 12, paras 31–36. Report of the inquiry into child abuse in Cleveland, July 1988 Cm 412. Articles and comment may be found in
[1988] Family Law 286, 320 and 417, (1988) 138 NLJ 138, 471, 492, 547, 551 and 587, and (1988) 132 SJ 1014.
References 1. Family Justice Modernisation Programme, Final Report, Ryder J, 2012. 2. Family Justice Review, David Norgrove, November 2011. 3. Sudden Unexpected Death in Infancy: The Report of a Working Group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, Chairman Baroness Helena Kennedy QC, September 2004. 4. Report of the Law Officers’ Inter-departmental Group on Battered Babies, 2005. 5. Guidance on the Prosecution Approach to Shaken Baby Syndrome Cases, DPP 14 February 2006. 6. Disclosure: Expert Evidence and Unused Material – Guidance Booklet for Experts, Attorney-General 14 February 2006. 7. Non-accidental head injury cases (NAHI, formerly referred to as shaken baby syndrome (SBS) – prosecution approach, Crown Prosecution Service 24 March 2011, giving a body of case law. 8. Expert evidence and the Law Commission: Implementation without legislation?, T Ward [2013] Crim LR 561–576.
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Med Sci Law OnlineFirst, published on April 27, 2015 as doi:10.1177/0025802414567606
Review article
Child abuse and child protection: The role of the expert
Medicine, Science and the Law 0(0) 1–5 ! The Author(s) 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0025802414567606 msl.sagepub.com
Alec Samuels
Child protection, such as an allegation of nonaccidental injury (NAI), especially non-accidental head injury (NAHI), in a child casts a heavy responsibility upon the courts. In the criminal court, the jury must decide upon murder, manslaughter or grievous bodily harm, or acquittal. In the civil court, the judge must decide whether to remove the child from the parents.
Triad The evidence in NAHI cases usually comprises the triad – the group of three – encephalopathy, subdural haemorrhage and retinal haemorrhage, although not all three may be present. If the triad remains unexplained or equivocal, the evidence does not measure up to the burden and standard of proof, the case remains unproved. The defence often seek to rely upon the unified hypothesis defence. The degree of force or rough handling needed to inflict NAI is not susceptible to scientific proof. Relevant factors may include the age of the child, the severity of the injuries, retinal haemorrhage and comparatively weak neck muscles.1 The general view appears to be that the triad arises from trauma; the hypoxia cause has been discredited. There may be evidence of injuries additional to the normal triad,2 and also evidence from a previous incident leading to a hospital admission.
The experts
based upon analysis, and he displays internal logic and consistency. An expressed opinion is based upon up-to-date knowledge and experience. Research material used is drawn from reputable peer-reviewed material, not merely an unsubstantiated academic hypothesis. The report is admirably succinct.3 Reasons are given, and they are sound reasons. Naturally, the good expert is independent and impartial and objective and unbiased. His overriding duty is the presentation of scientific and medical truth to the court, as opposed to advocacy of a cause or theory. He offers a statement of the truth as scientifically and medically perceived. He should certainly believe in his evidence; he must be confident and convincing, but zeal and dogmatism go too far. The expert who feels that the challenge to his evidence is putting his reputation at stake may be prone to exaggerations and emotion. He should listen to and consider opposing views, and be willing to amend or moderate his own view where appropriate, in a responsible manner. No one has a monopoly of wisdom. What has been widely taken as conventional scientific and medical wisdom yesterday may be widely discarded tomorrow. Today’s orthodoxy may be tomorrow’s outdated learning. In science and medicine, the unknown can never be ruled out, especially in the developing areas. In an NAHI, he has considered resuscitation injury, ischemia, physical injury, trauma and a possibly unknown cause. The child suffered fits and died. The post-mortem indicated skull fractures and brain injury. However, there was evidence of congenital rickets caused by vitamin D deficiency, and suboptimal hospital treatment in respect of blood. The standard of proof required for a criminal charge and a care order in respect of another child of the family was not made out.4 The good expert is not reluctant to make a concession; he does not rule out all alternative possibilities. He is of the opinion that the injuries were nonaccidental, and he gives compelling evidence to that
Bearing in mind the burden of proof, beyond reasonable doubt in the criminal case and the balance of probabilities in the civil case, the jury, directed by the judge, in the criminal case and the judge, by himself, in the civil case must not so much choose between the experts as assess the quality of the experts and their evidence. Many factors go to identify the good as opposed to the not so good expert. As every case is fact specific and turns upon its own particular facts and circumstances, the good expert is Barrister, formerly Reader in Law in the University of Southampton, meticulously careful to get the facts correct, both factformerly President of the Medico-Legal Society, UK ually and scientifically. He has recent clinical and forensic practice and experience. He keeps within his Corresponding author: area of special expertise and experience. He identifies Alec Samuels, Barrister, United Kingdom. the salient issues, and with clarity. Downloaded His evidence is Email: [email protected] from msl.sagepub.com at UQ Library on June 16, 2015
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2 effect, but he does not insist that he could not possibly be wrong. Cogent evidence should not be allowed to degenerate into scientific or medical prejudice or bias, for that could be self-destruction. The report should be full and comprehensive. It is poor practice to submit an incomplete or premature report hoping to be able to supplement or amend the report as the case progresses. Such practice quickly destroys credibility. The report in form must conform to Criminal Procedure Rules part 33 plus Practice Directions or the Family Procedure Rules part 25 plus Practice Directions, both being phrased in similar terms. Thus, the expert gives his qualifications and experience, the instructions received, the examinations and tests carried out, the literature examined, the range of professional opinions on the matter known to him (including those with which he does not necessarily agree), his analysis, a summary, and his reasoned opinion. Furthermore, a statement of compliance with the Rules is required and a declaration of truth.5 The treating clinician is an expert in one sense and may be wholly credible and compelling, but he cannot bring the objectivity of the outside independent expert.6
Minority It may help if the witness belongs to the mainstream in his speciality and his evidence accords with contemporary mainstream opinion. However, a minority opinion may be based upon responsible innovative creative research, experimentation and experience, and be deserving of respectful attention. It may indeed be the better opinion.
Suspicion
Medicine, Science and the Law 0(0) inherently risky and dangerous. Additional nonexpert evidence should be adduced.7
Pre-trial Much of the success of a trial lies in early thorough preparation. The judge has been involved in such cases both on the Bench and at the Bar, counsel have appropriate experience, and the solicitors give good support. An understanding of the medical issues on the part of the lawyers cannot come amiss. The duty of the judge is to manage the case from an early stage, and in particular to ensure that the witnesses are marshalled and controlled. Early pre-trial disclosure assists everybody and helps to avoid the unforeseen. The expert must disclose and exchange his report, carefully consider what the other expert says, and in good time meet the other expert and discuss the matter and agree upon the issues still outstanding between them, so that they may indicate in the report where they agree and where they disagree, with reasons. Thus, the parties and the judge are fully apprised of the situation, and the trial may proceed expeditiously and effectively. Where two or more defendants wish to call separate experts, the judge may in an appropriate case order a single joint expert. With a copy of the Rules to hand, and perhaps a checklist to assist, systematic progress may be achieved.8
Replace old expert with new expert The expert instructed by A makes a report favourable to A. But having met the expert for the other side, he changes his mind completely. So A wants to proffer a favourable report from a new expert. The judge will not normally allow this, as expert shopping, searching for a new favourable expert, is discouraged. However, the new expert’s report might be admitted if it could be shown that the original expert behaved in an unsatisfactory manner, for example he went beyond his expertise, acted incompetently or improperly, or gave no good reasons. But the judge might require the disclosure of the earlier report as a condition of adducing the new report. An application for a new expert to substitute for a genuinely retiring expert in a case which has continued for an unexpectedly lengthy time seems reasonable.9
Propositions about injuries must be advanced with caution. The greater the physical force applied, the more severe the injury is likely to be, although seemingly minor force can cause severe injury. The more severe the injury, the more likely it has been caused by greater force. However, a child may be particularly susceptible to bruising. Coincidence may give rise to suspicion. This is the second child death in the family, or another child in the family suffered injury. But coincidence in itself is equivocal. Suspicion cannot in itself justify an inference of guilt – there must be more. Perhaps further Practical difficulties testing or treatment might assist. The defendant D may have been seen striking the Clinicians and other experts are busy people. Many child, although this is unlikely. But there may be evido not like to be involved in court cases, which can be dence of a lack of affection and bonding; of other time-consuming and uncertain, although the judges injury to the child; of deception and lies to doctors, strive to accommodate the experts. The reduction in social workers and teachers; of failure to report injury the availability of legal aid and the reduction in fee or to take prompt action on the part of D. The ultimlevels have further increased the reluctance of experts ate decision in the case on expert evidence alone, howto take on cases. The Legal Aid Agency may refuse to ever seemingly persuasive that expert Downloaded evidence, is pay for an expert, or cap the fees.10 The absence of from msl.sagepub.com at UQ Library on June 16, 2015
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Samuels legal aid may mean either that the party bears the costs or there is no expert report.11 Medicine is an ancient and honourable profession, with a fine record of public service. Every man is a debtor to his profession. Perhaps in conjunction with the Royal Colleges, every NHS employer should agree to release and facilitate consultants and similar experts to do, say, a couple of cases a year if called upon to do so. Failure to obtain legal aid will mean that the lay party will appear as a dreaded litigant in person LIP. The judges are constantly urging that vulnerable parties need representation in order to ensure a fair trial.12 The judge has an overriding duty to restrict expert evidence to that which is reasonably required to resolve the proceedings.13 In order to expedite and simplify child care cases, meet the 26-week rule, save public money and overcome the alleged misuse and overuse of experts, the Family Procedure Rules and the judges now require that the presence of an expert must be ‘necessary’ in order to be justified, and this has certainly had the effect of raising the bar. Necessary would seem to lie somewhere between indispensable and merely useful. Necessary evidence must be evidence that is likely to make a real contribution the case, so far as may be ascertained before the hearing.14 Factors to be taken into consideration include the likely impact upon the proceedings of having an expert, the timetable and the cost, and there already is evidence available on the issue, or it can be readily obtained from another source. The judge is quite likely to press for a single joint expert. Where the experts from both sides agree that there is no evidence of underlying bone disorder, the judge is unlikely to agree to hear further expert evidence for testing purposes.15 The judge may feel that the evidence of a biomechanical engineer regarding the tipping of a child’s bouncy chair in the absence of any other evidence would be speculative and unnecessary.16
All the experts agree that it was this or that, or A or B
3 assessed on such evidence as may be available as to the suitability of that one parent.
The injury or death was or might have been ‘innocent’ The decision maker – the jury in the criminal trial and the judge in the civil proceedings – may be unable to eliminate the real possibility of an innocent explanation. The injury or death may indeed have arisen from an unknown cause. The children suffered skull fractures and subdural haematomas; there may have been inherited vulnerable characteristics. The evidence, expert and non-expert, cannot eliminate the real possibility. Despite real anxieties, the threshold for burden and standard of proof has not been attained. A conviction cannot be made; a care order cannot be made.18
Summing up In summing up, the judge must not just repeat or paraphrase the expert evidence. He must identify the issues, marshal and state the relevant salient points on both sides, and give guidance on how to evaluate evidence, especially conflicting evidence.19
Judge rejects unanimous expert evidence The judge may reject unanimous expert evidence, but he should only do so after rigorous analysis and good reasoning.20
Fresh evidence On appeal, application may be made to adduce fresh evidence. The general principle is that such evidence may be admitted if it was unknown at the time of the trial or could not reasonably have been discovered. Evidence may not be kept in reserve in case of an appeal. If fresh evidence is admitted in a criminal case, the Court of Appeal will (i) dismiss the appeal if satisfied that the evidence would not have affected the decision of the jury or (ii) if it might have affected the decision of the jury, quash the verdict or (iii) quash the verdict and order a retrial.21
All the experts agree that either the child died by way of smothering or suffocating at the hand of the mother, NAI, or by way of some unknown cause or Child protection accidental injury, but they cannot say which. Similar difficulty can arise where all the experts agree and the All those involved with children have a high moral, judge finds that NAI was committed by either A or B, social and legal duty of child protection. All must be neither having any credibility, but cannot identify alive or alert to the possibility of abuse. The duty which was the perpetrator. The likelihood of the applies particularly to doctors, nurses, health profesinfliction of further harm cannot be attributed with sionals, social workers, teachers and such like. Daniel any confidence to A or to B. State interference in the Pelka, a NAI and NAHI case, died in 2012 because family must be justified.17 If the child were to remain although the abuse was seen and reported, everybody assumed that somebody else was taking preventive with A and B, the risk would clearly continue. If the action. There was no co-ordination, nothing was child were to remain with only A or B, then an appraidone, and the child died. sal of the likelihood of harm to theDownloaded childfrom must be msl.sagepub.com at UQ Library on June 16, 2015
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The good expert A judge recently encapsulated the qualities of the good expert.22 The good expert has appropriate qualifications and long and contemporary NHS experience. The facts are accurately stated. The report reflects the evidence given at the trial. All relevant considerations are taken into account. The report is internally consistent. The report reflects the opinion of an appropriate body of medical practitioners. The report may be described as given in good faith (virtually to be taken for granted), competent, logical, not extreme or eccentric, reasonable, responsible and respectable. The judge can then make his decision. By contrast, a judge23 found it necessary to make the following criticism of an expert: Overly keen. Engaged in creative advocacy. Side-stepped the issues. Equivocated. Flew in the face of common sense. Stepped outside his expertise. Gave evidence contrary to the literature. Was uncritical. Forgot his duty to the court. The Cleveland Report24 by Butler-Sloss LJ (as she then was) in 1988 into alleged child abuse, anal dilation, drew attention to the need for training, specialist knowledge, a multidisciplinary approach and sensitivity.
Medicine, Science and the Law 0(0) Questions: How can we better protect the vulnerable child? How can we better protect the innocent parent from a false accusation? How can we improve the quality of expert evidence? Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.
Notes
1. R v Harris [2005] EWCA Crim 1980, [2006] 1 Cr App R 5, paras 76–80. 2. R v Allen [2005] EWCA Crim 1344. 3. A (A Child) (Fact-Finding: Welfare: Single Hearing: Experts’ Reports) [2013] EWHC 2499 (Fam), [2013] 134 BMLR 61. 4. Islington LBC v Al-Alas [2012] EWHC 865 (Fam), [2012] 2 FLR 1239. A (A Child) (Permission to Appeal Fact-Finding Judgment) [2012] EWCA Civ 1477, [2013] 1 FLR 1187. The Court of Appeal has called for more research into vitamin D deficiency, para 235. 5. For guidance on experts, see R v B (T) [2006] EWCA Crim 417, [2006] 2 Cr App R 3, paras 174–179. R v Harris [2003] EWCA Crim 55, [2006] 1 Cr App R 5. Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWCA Civ 1003. C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 Conclusion (QB), [2014] Med LR 189. 6. H-L (A Child) (Expert Evidence: Test for Permission) Child protection must improve. The various agencies [2013] EWCA Civ 655, [2013] 2 FLR 1434, [2014] 1 realise the need to share and co-ordinate information WLR 1160. and action. Science and technology greatly assist 7. R v Kai-Whitewind [2005] EWCA Crim 1092. R v investigative methods for medicine. The increasing Canning [2004] EWCA Crim 1, [2004] 2 Cr App R 7, specialisation of experts and their improving quality [2004] 1 WLR 2607. should enable the facts of a situation to be better 8. R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr diagnosed and confidently explained. But disasters App R 24, paras 200–221. are still happening; NAI and NAHI remain a most 9. Edwards-Tubbs v J D Wetherspoon [2011] 1 WLR 1373. Stallwood v David [2006] EWHC 2600 (QB), [2007] 1 All disturbing feature of national life and forensic ER 206. BMG (Mansfield) Ltd v Galliford Try examination. Construction Ltd [2013] EWHC 3183 (TCC) [2013] The good expert may be less in evidence because of EWHC 3183 (TCC). the policy of the courts to expedite child cases, the 10. A Local Authority v DS [2012] EWHC 1442 (Fam), inconvenience of court work for the medical and sci[2012] 1 WLR 3098. entific professionals, the dislike of the professionals for 11. JG (A Child) v Legal Services Commission [2013] cross-examination and criticism, and the unattractive EWHC 804 (Admin), [2013] 2 FLR 1174. fees. Parents and other perpetrators of NAI and NAHI 12. L (A Child) (Application Hearing: Legal and other forms of abuse are often skilful at deception Representative) [2013] EWCA Civ 267. and evasion. The decision maker may be able to get no 13. Turner v Walsall Hospital NHS Trust [2013] EWHC further than identifying a person as possibly or even 1221 (QB), [2014] Med LR 379. 14. H-L (A Child) (Expert Evidence: Test for Permission) probably one of a pool of perpetrators. The Crown [2013] EWCA Civ 655, [2013] 2 FLR 1434, [2014] 1 Prosecution Service is reluctant to undertake a WLR 1160. murder or other very serious prosecution because of 15. O-M v The Local Authority [2009] EWCA Civ 1405, the resource implications and the likely conflicts in [2010] 2 FLR 58. medical or scientific expert evidence, conflicts difficult 16. TG (A Child) (Care Proceedings: Biomechanical for the advocates to handle and for the decision maker Engineering Evidence) [2013] EWCA Civ 5, [2013] 1 to penetrate. The local authority is keen to take a child FCR 229. R v Harris [2005] EWCA Crim 1980, [2006] at risk into care for fear of a disaster otherwise occur1 Cr App R 5, paras 81–96. ring, although resources are diminishing. Prosecuting 17. G-C (A Child) (Contact Order: Staying Contact with parents or depriving parents of their children is a very Father) [2013] EWCA Civ 301, [2013] 2 FLR 1307. serious matter, particularly where it turns out to be J (Children) (Care Proceedings: Threshold Criteria) without justification. [2013] UKSC 9, [2013] 1 AC 680. R v Hopkinson Downloaded from msl.sagepub.com at UQ Library on June 16, 2015
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19. 20. 21.
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23. 24.
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[2013] EWCA Crim 795, [2014] 1 Cr App R3. Re L and M (Children) [2013] EWHC 1569 (Fam), paras 45–58. S (a child) (care proceedings: split hearing) [2014] EWCA Civ 25, [2014] 1 FCR 477. Re JS [2012] EWHC 1370 (Fam). Bradford MDC v F [2012] EWHC 557 (Fam), [2012] 2 FLR 1374. Devon CC v EB [2013] EWHC 968 (Fam). J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680, Leading judgment by Lady Hale paras 1–5 and 14–57. R v Arshad [2012] EWCA Crim 18. U (A Child) (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, [2005] Fam 134. A Local Authority v S [2009] EWHC 2115 (Fam), [2010] 1 FLR 1560. R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr App R 24, paras 200–221. M-W (A Child) (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, [2010] 2 FLR 46. R v Pendleton [2001] UKHL 66, [2002] 1 Cr App R 34. R v Harris [2003] EWCA Crim 55, [2006] 1 Cr App R 5, paras 101–102. C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB), [2014] Med LR 189, para 25, Green J. Sardar v NHS Commissioning Board [2014] EWHC 38 (QB), [2014] Med LR 12, paras 31–36. Report of the inquiry into child abuse in Cleveland, July 1988 Cm 412. Articles and comment may be found in
[1988] Family Law 286, 320 and 417, (1988) 138 NLJ 138, 471, 492, 547, 551 and 587, and (1988) 132 SJ 1014.
References 1. Family Justice Modernisation Programme, Final Report, Ryder J, 2012. 2. Family Justice Review, David Norgrove, November 2011. 3. Sudden Unexpected Death in Infancy: The Report of a Working Group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, Chairman Baroness Helena Kennedy QC, September 2004. 4. Report of the Law Officers’ Inter-departmental Group on Battered Babies, 2005. 5. Guidance on the Prosecution Approach to Shaken Baby Syndrome Cases, DPP 14 February 2006. 6. Disclosure: Expert Evidence and Unused Material – Guidance Booklet for Experts, Attorney-General 14 February 2006. 7. Non-accidental head injury cases (NAHI, formerly referred to as shaken baby syndrome (SBS) – prosecution approach, Crown Prosecution Service 24 March 2011, giving a body of case law. 8. Expert evidence and the Law Commission: Implementation without legislation?, T Ward [2013] Crim LR 561–576.
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