When a child suffers a head injury which medical professionals suspect may be inflicted, safeguarding processes are triggered, often leading to care proceedings and the removal of the child from the care of their parents, usuall y for many months and sometimes forever.
Sometimes it quickly becomes apparent that there is an accidental explanation. But more often the child protection and court processes continue for many months. Eventually the Family Court will be likely to have to decide whether the injuries were inflicted and, if so, who did it. Independent expert medical evidence is usually commissioned through the court process, and this can be critical to the court’s decision. The process of testing that evidence through the process of cross examination by experienced barristers can make the difference between a child returning home and a child never going home again.
This week has seen news in the legal press of a new pilot scheme that has recently been launched, that aims to change the way in which the medical evidence relating to suspected inflicted head injuries will be gathered. It has surprised and alarmed lawyers who represent families, who unusually had not been consulted on the proposals before they were finalised and implemented.
On Monday the Gazette ran a detailed article under the banner
Curbs on expert cross-examination could lead to wrongful removals, family silks warn
The pilot involves a multi-disciplinary ‘clinical hub’ involving paediatricians, neuro-radiologists, haematologists and others at each of three locations. These teams will examine and report on cases of suspected inflicted head injuries and produce a single report.
‘The fear’, writes Eduardo Reyes in the Gazette, ‘is that clinical hub experts will not be subject to cross examination in court, yet their evidence will displace that of transparently instructed agreed joint experts, currently appointed under section 25 of the Family Procedure Rules.’
Why might that matter? Well, the Family Silks (Kings Counsel), who are often the ones who cross examine the jointly agreed experts at trial, are making their views about this known very publicly (since they haven’t apparently been asked for them before).
Jo Delahunty KC tells the Gazette that she ‘fully anticipates’ that the pilot will be used to stop families being able to appoint independent experts through the court process, because it will be said this is not ‘necessary’ as required by the rules. This is a problem because court appointed experts are ‘the only mechanism by which there can be transparent, joint, expert instruction with parental input and sight of case-acquired evidence’.
It is not only Jo Delahunty KC who has been vocally critical of the pilot and the way in which it has been introduced. On Wednesday another barrister, John Vater KC, wrote a blistering opinion piece in the Gazette, which you can read in full here,
Suspected Inflicted Head Injury Service and the law of unintended consequences
He emphasises the complexity of the work – explaining that both the medical expertise of the experts and the expertise of the advocates whose testing and exploration of the evidence at trial ensures a fair and robust process for those accused of hurting their children, and for the children at risk on the one hand from their parents, and on the other from a miscarriage of justice.
Vater suggests that in fact, the extent of medical controversy in this type of injury means that the pilot is likely to create exactly the opposite effect to that intended. Rather than reducing cost and delay and the number of experts, he predicts that these single consensus style reports will produce more requests for expert instruction than previously, in order to ensure that the areas of controversy and uncertainty are properly teased out.
However, like Delahunty, Vater also raises concern that the existence of a pilot report will be used to make it more difficult to obtain permission to instruct an expert via the court process – and even that no medical professional will be expected to come to court to speak to their conclusions at all.
Both the Association of Lawyers for Children and the Family Law Bar Association have have received and distributed a short explanatory paper about the pilot, which is being run by the DFE. You can read that here. Both associations have circulated messages to their membership emphasising that they were not been consulted about the pilot. Neither message endorses the pilot.
The FLBA writes:
This is the first written document we have been provided with that we have been permitted to share with our members. It explains the rationale for the Pilot. It introduces the concept of “expert clinicians” to produce “a single comprehensive report”. It says both that “the report will not replace the current court report (sic)…” but also “this aims to reduce the need for additional multiple Court instructed experts by distilling down, on an individual case basis, the complex issues pertinent to each child where additional expertise is required”. The purpose of this is to “allow for more timely decision-making and a reduction in unnecessary delays”. The intention is for the pilot to act as “proof of concept, to establish the value of such a system”.
No member of the FLBA was part of the group which developed this Pilot and we were not consulted upon it. As far as we are aware the same applies to the other practitioner groups, the ALC, Resolution and the Law Society. We are concerned about the concept of State appointed “expert clinicians” replacing single joint experts in these cases and “distilling down… the complex issues.” or being the arbiters of (or the basis for any decision upon) what “additional expertise is required”. In our experience the complex issues in a case emerge once the single joint experts have reported and not beforehand.
As suggested by the FLBA in its message to members, the DFE’s explanatory document raises more questions than it answers, and both organisations are urgently trying to find out more on behalf of their membership. Some lawyers in the areas where the pilot is already operational appear not to have been aware of its existence at all. The FLBA is inviting any members whose case involves the pilot to contact them.
Concerns are also raised in this article in Local Government Lawywr:
There another lawyer, Max Konarek, is quoted articulating the concerns in this way:
“I can confidently say the majority of my cases involving a client that has been absolved of allegations of serious harm, has been the direct result of the need to cross examine both independently instructed experts, or the cross examination of treating medical professionals.
“With the latter becoming increasingly frowned upon by many courts already, and now an attack on the former, there are deeply concerning outcomes for the children and families involved in these cases, often where adoption is being explored as the only alternative option to a parent caring for the child involved.”
The only other publicly available information (apart from a job advert) seems to be a short section in the Jan 24 minutes of the Family Justice Committee, which were only published in the last few weeks. We had submitted a question about the reference in the minutes to the pilot, to be asked at the Family Justice Council’s forthcoming open meeting. We await confirmation of whether we will be permitted to attend or whether our question will be answered.
Whatever else may be said about this pilot, it is a failure in transparent working, and the manner of its launch is unlikely to encourage trust and confidence of families.
It seems unlikely that much more will emerge from the DfE until after the election, but we will keep our eyes peeled and report further.
UPDATE 2.20pm 27/2/24 – we’ve been made aware of a detailed Freedom of Information Act Request made to the Department for Education, requesting further information about funding, tenders, qualifications of the medical professionals, criteria applied, and lines of responsibility. We hope to write more about this in due course. The time limit for a FOIA response is 20 working days, so assuming this request has been sent in the last few days, we should be expecting a response by about 25 July.