This is a post from Malvika Jaganmohan, who tweets as @MalvikaJaganmo1.

I have already written for this blog on the shortage of expert witnesses in the family courts: my case summary of West Sussex County Council v B looks at the potential for miscarriages of justice caused by a dearth of available experts; my summary of the Expert Witness Working Group Symposium sets out some of the barriers to medical professionals becoming expert witnesses and how these can be addressed. 

The case of Re F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244 revisits some of these issues, but also explores another dimension to the expert witness debate: the difference between treating medical professionals (those who directly treated the child’s injuries) and expert witnesses (instructed specifically within the course of proceedings but who did not directly treat the child). 

With a shortage of expert witnesses in the family courts, treating professionals have increasingly been giving expert evidence in family proceedings. If this is the case, then professionals and the judiciary need to be aware of how such evidence should be treated. 

Background 

The case concerned a child, F, who sustained petechial haemorrhages (small red/purple spots on the skin caused by the rupture of blood vessels) when she was 6 months old. F was seen at the hospital by a consultant paediatrician, Dr Flowers. Dr Flowers concluded that “In the absence of any other plausible explanation, it is my opinion that suffocation is highly likely to be the cause of the petechiae” [emphasis added].  

F was discharged from hospital and placed in foster care under section 20 of the Children Act 1989. This is where the child’s parents voluntarily agree to the child being accommodated by the Local Authority. This consent can be withdrawn at any time and the Local Authority does not share parental responsibility for the child. (See also: The Transparency Project’s ‘Guidance on use of section 20 accommodation’ for further information). 

Within the care proceedings, the court granted permission to instruct two experts: Dr Mecrow, a consultant paediatrician, and Dr Bolton, a Home Office consultant pathologist (a scientist studying the causes and effects of diseases on the body). Dr Flowers confirmed to the court that she could not act as an expert witness, but was a witness with expertise.

What’s the difference between an expert witness and a witness with expertise? An expert witness occupies a very particular role. They are instructed when the court requires some sort of specialist knowledge before it can make decisions about what is in the best interests of the child. The instruction of experts in proceedings involving children is governed by s13 of the Children and Families Act 2014 (s13CFA) and Part 25 of the Family Procedure Rules (Part 25). s13 CFA confirms that a person cannot give expert evidence without the permission of the court and sets out factors that should be considered by the court when deciding whether to grant such permission (see s13(7) of the CFA 2014). Part 25 sets out certain rules that ought to be complied with when an expert is instructed, for example, the general requirement that expert evidence is to be given in a written report.

Unlike witnesses of fact i.e. people who give evidence about what they have seen or heard themselves, expert witnesses can give their opinion, based on their expertise. (see The Transparency Project’s: The Use of Experts in Family Court Cases Involving Children.) Dr Flowers here did not hold herself out as an expert witness. She had no specific training in giving expert evidence or preparing an expert report. However, she was a witness who had relevant expertise by virtue of being a medical professional. 

Dr Flowers had not been instructed specifically in the proceedings as an expert witness. However, she was permitted to attend the experts’ meeting with Dr Mecrow and Dr Bolton which meant that she was effectively giving expert evidence. (An experts’ meeting allows experts to identify areas of agreement and disagreement in their opinions and see if any disagreement can be narrowed.) 

This complicated her role and meant that despite Dr Flowers rightly asserting that she was not able to act as an expert witness, she was still granted permission to give expert evidence under  s13 of the Children and Families Act 2014. 

The decision being appealed

The Court of Appeal explored the medical evidence in some detail. The main points are as follows: 

• All the experts agreed that this was a difficult and unusual case.
• Dr Flowers said in her oral evidence that suffocation remains a “possible cause” and that smothering, in conjunction with some thorax or chest compression, was the “only way [she] can think of that would account for this highly unusual presentation seen.”
• In contrast to Dr Flowers, neither of the expert witnesses concluded that the injuries were inflicted non-accidental injuries. Dr Mecrow did not consider that “an abusive mechanism was the cause” and he said that he “couldn’t advise that non-accidental mechanisms were likely at a level of the balance of probability.”
• Dr Bolton also noted that suffocation/smothering did not “reach the threshold of being the ‘probable’ cause” and was “unable to say on the balance of probabilities… that the medical findings represent non-accidental injuries.”

I don’t propose to set out all the medical evidence in this blog post. Suffice to say, the issue was that the evidence given by Dr Flowers was at odds with the evidence of the other two expert witnesses. HHJ Hudson, sitting as a high court judge, determined that the haemorrhages were inflicted, non-accidental injuries caused by F’s father. Her determination was based on her interpretation of Dr Flowers’ evidence, namely that she “now favours a combination of smothering/suffocation and chest compression as the probable cause”. 

The appeal

The father appealed on the basis that:

• the judge’s approach to and conclusions about the effect of the medical evidence was flawed; and 
• the judge had insufficiently explained her conclusion that F sustained injuries that were caused by her father. 

The father argued that HHJ Hudson’s judgment should be set aside and the Court of Appeal (CA) should find that there is no realistic prospect of a court finding that the father caused the inflicted injury on F if a re-hearing took place. If the CA did this, then the care proceedings would pretty much come to an end given that the injuries were the only issue being relied upon by the local authority to support the threshold criteria under s31 of the Children Act 1989. The threshold criteria need to be met before a court can make public law orders such as care orders. (See also Transparency Project blog post on the threshold criteria for more information)

The CA allowed the father’s appeal on the basis that the judge had misstated Dr Flowers’ evidence and did not sufficiently engage with the evidence that pointed away from F’s injuries being inflicted injuries. However, they concluded that the Local Authority should be able to seek a re-hearing if they wished to do so. This was because the court was not satisfied that the only possible outcome that could be reached in assessing all the evidence was that the injury was not inflicted by the father. 

Analysis

What can we take away from this case?

• All the legal representatives agreed that, in their experience, treating professionals are being called more frequently to give medical evidence and more frequently, their evidence is the only expert evidence. Moylan LJ observes that this may be because of a lack of available experts or because in certain cases – for instance ones involving more minor injuries –  further expert evidence isn’t actually needed to resolve the proceedings. [para. 129]

• Here, Dr Flowers made clear that she wasn’t an expert witness, but she was a witness with expertise who could give expert evidence. There can be good reason for the provisions of s13(5), (6) and (7) (i.e. the provisions relating to when permission should be granted to instruct a person to give expert evidence), to be applied with a light touch, such as in this case where Dr Flowers’s role was blurred by her attendance at the experts meeting and she was then providing “expert evidence for use in proceedings” in line with rule 25.2(1) of the Family Procedure Rules 2010.[para. 130]

• It would not support the swift resolution of cases if unnecessary obstacles were placed in the way of expert evidence being available to the court. In Moylan LJ’s view, a treating professional who is an expert can give expert evidence without all or any of the requirements of Part 25 being applied. However, this is a matter which requires broader analysis, beyond the particular case, such as could be provided by the President’s Working Group. [para. 132]

• With the benefit of hindsight, the CA noted that the way in which the medical evidence was obtained muddied the waters rather than clarifying the picture. It was difficult to understand what exactly the effect of the medical evidence was in this case. Moylan LJ commented that it may have been helpful for the Guardian’s solicitor to prepare a summary of the effect of the evidence following the experts’ meeting for consideration and agreement by the experts (along the lines of what was agreed and disagreed). Practical measures such as this could have prevented the judge’s misstatement of Dr Flowers’ evidence. [para. 121]

• A judge is entitled to prefer the evidence of a treating clinician to that of experts instructed in the proceedings. The issue here is that the judge didn’t sufficiently engage with the issues raised by Dr Mecrow and Dr Bolton and didn’t explain why she preferred the evidence of Dr Flowers. [para. 126]

• Moylan LJ noted the important difference between treating professionals and expert witnesses. A treating professional will “self-evidently have a very different focus to an expert witness”. Expert witnesses would undertake research in order to prepare their final report while treating professionals would not be subject to the same expectations. This is something the judge needed to have in mind when deciding whose evidence she preferred. [paras. 131-132]

No doubt the President’s Expert Witness Working Group will be alive to the CA’s observations. 

Since you’re here…

We have a small favour to ask! 

The Transparency Project is a registered charity in England and Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. You can find our page, and further information here. 
Thanks for reading!

Image courtesy of Thomas Hawk via Flickr – thanks