Two judgments caught my eye in the last few weeks, adding to the body of case law relating to the conduct of experts who provide evidence in the family courts. One expert came out pretty well; the other… less so.
Let’s start with the positive, shall we? (Warning: there is a lot of medical jargon in this post that took me a while to get my head around – I’ve tried to break it down as best as I can!)
A Local Authority v AA & Anor [2022] EWHC 2321 (Fam) (25 July 2022)
This judgment by Mrs Justice Lieven followed a fact-finding hearing centred upon the causation of injuries to a 9-month-old girl called ‘Y’. Those injuries were: a subdural haemorrhage (‘SDH’) and retinal haemorrhages (‘RH’). The local authority pursued findings that the father caused Y’s injuries by shaking her, and the injuries followed an abusive head trauma (‘AHT’). The father’s case was that he didn’t shake Y in any way, but that she fell off the bed when his back was turned.
Several experts provided evidence during the course of the proceedings, namely a health visitor, two neuroradiologists (Dr Saunders and Dr Hogarth), an ophthalmologist (Professor Fielder), a neurosurgeon (Professor Vloebergs), a paediatrician (Dr Hobbs) and a haematologist (Dr Keenan).
Shortly after the bulk of the hearing took place in November 2021, the court received a letter from the Medical Defence Union stating that Dr Saunders, the originally instructed neuroradiologist, had become very ill and felt that the court could no longer rely upon her findings. The letter provided was a generic one, referring to Dr Saunders reviewing her report(s) produced during this period, rather than specifically referring to Y’s case. A new neuroradiologist was instructed – Dr Hogarth – and the court heard his evidence in June this year.
The medical evidence was extremely contentious in this case. Initially, all the instructed experts concluded that Y’s injuries were most likely caused by her having been shaken. Dr Saunders’ position, however, shifted back and forth over the course of the summer of 2021:
- In April 2021, Dr Saunders reported that the injuries “are a very unlikely but not impossible outcome of an impact head injury following a fall from a bed with an impact close to the midline. The injuries Y sustained are a well recognised outcome of a shaking injury.” That conclusion remained the same in May 2021.
- By 12 th June 2021, she changed her view and said it was most likely the injuries resulted from a fall.
- Two weeks later, on 25 th June 2021, she retracted her position and reverted to heroriginal view that the most likely cause was a shaking injury.
- By her final report on 15h August, her position changed again and she concluded that Y’s injuries were as a result of a fall from the bed and it was unlikely that they were caused by her being shaken. That was the evidence that she gave at the November 2021 hearing.
Dr Hobbs and Professor Vloebergs strongly challenged her position, and Dr Fielder considered a shaking injury more likely than a fall, though he was “rather less unequivocal than the others”. Dr Hogarth, the newly instructed neuroradiologist was of the view that a short fall was a possible, although relatively unlikely, cause of the injuries, and that shaking was more likely to be the cause than a fall. His evidence was that a short fall could be contemplated in this case because Y’s brain injuries were relatively moderate.
The judge proceeded on the basis that Dr Saunders’ evidence could not simply be excluded altogether. The agreed position was that where her evidence accorded with Dr Hogarth’s, it could be relied upon by the court; where it did not, the court should not have regard to her evidence.
Despite what, on the face of it, seems to be a wealth of expert evidence pointing in one direction, the judge concluded on the balance of probabilities that Y was not shaken by her father. She had regard to the absence of any other physical signs of shaking, such as bruising or fractures; the lack of “red flags” around the father or the family (no history of drug taking,
excessive alcohol, domestic abuse or mental health problems); the lack of any apparent stress factors on the morning of the incident; the father’s demeanour in the witness box; and his demeanour at the time of the 999 call he made (the tape recording was available to the court and father could be heard saying “it’s my own fault why did I turn my back on her?”). The judge noted that there is a body of literature which supports the possibility of infants, usually with larger than normal heads, having SDHs and (in a few cases) RHs after short falls. She also noted Dr Hogarth’s evidence that a short fall could be a possibility. For our purposes, the judge made the following interesting comments about the conduct of Dr Saunders (emphasis added in bold):
[114] I do not accept Dr Hobbs and Professor Vloeberghs’ criticism of Dr Saunders for having changed her mind (twice) during the course of these proceedings. Although I understand their frustration, in my view Dr Saunders has done what any expertshould do. She kept an open mind and conducted as thorough a review as possible of the literature before reaching her ultimate conclusion. It is obvious that this is a highly contentious field where unhelpfully litigation, particularly in the US, seems to have led to a polarised approach. However, as far as I can tell, and I rely on Dr Saunders for this, there are many reputable and independent experts who are open to the argument that there are cases where infants have suffered both SDH and RH from short falls. That is not in any sense to reject the point that those factors will often if not usually be indicators of AHT – they may well be in the vast majority of cases. But it remains important to acknowledge that there will be outlier, or unusual, cases.
[115] This is a case where it is particularly important to bear in mind the various judicial dicta referred to above about considering the unusual or unlikely cause, and not simply following the medical evidence without question. I found Dr Hogarth’s evidence very helpful in his appreciation that unlikely events necessarily happen, and there will be outliers to the normal clinical presentation. The academic literature does indicate that there are cases of young children suffering both SDH and (very infrequently) RHs from short falls. I give considerable weight to Professor Fielder’s evidence that he has never seen a case where he thought a RH resulted from a short fall. However, the literature does suggest some such cases do exist.
Hertfordshire County Council v a Mother, a Father, an Older Sibling and Child [2022] EWFC 106
Then we come to this very sad judgment from His Honour Judge Clarke (plus a separate judgment in respect of naming the experts involved). Again, it followed a fact-finding hearing concerning a baby boy with fractures to both sides of his skull with associated areas of scalp swelling; traumatic subdural effusion (Google tells me this is a collection of fluid), traumatic subarachnoid haemorrhage (bleeding in the space surrounding the brain) and a large area of haemorrhagic contusional change which has led to permanent structural brain damage. The injuries are likely to have significant motor, cognitive, developmental and psychological consequences for the child. The fall-out to the family was extensive, with the parents themselves separating just over five weeks after the incident.
As in AA, the family had not been previously known to social care and no concerns had been raised before about the care provided by the parents.
The parents’ case was that the child fell from the father’s arms onto a wooden floor with a concrete base in the kitchen when he was also trying to pick up the child’s older sibling. The child was taken to A&E that evening before being moved to Great Ormond Street Hospital (GOSH) the next morning. The children were made subject to police protective powers.
The local authority issued care proceedings in the summer of 2021 and during the course of the proceedings, a paediatric radiology report was obtained from ‘Professor AM’ and a neuroradiological report from Professor Sellar.
The Executive Summary of Professor AM’s report stated:
“Although uncommon, bilateral and/or complex skull fractures have been documented as following falls from carer’s arms, particularly in infants below 6 months of age. Therefore, the explanation as given by his parents MAY have resulted in the identified fractures i.e., I cannot determine whether the Child’s skull fractures were accidental or inflicted – from my perspective as a paediatric radiologist, either is possible.”
Professor Sellar’s opinion was that:
“the extensive skull fracturing seen is very unlikely to have been caused by a fall as initially described by the father. Two impacts are suggested by the bilateral soft tissue swelling. The burst type fracture seen is typically caused by a crush injury (possibly stamping or being thrown against a surface). The presence of a burst fracture or crush injury is typically caused either by a severe accidental injury e.g. falling out of a window two stories up or a severe RTA (see below Ellis et al) or by a non- accidental injury.”
At an experts meeting between Professor AM and Professor Sellar, they were asked if it was possible, when combining the acceleration (possibly caused by father’s attempts to catch the child) with the impact on a wood/concrete fall, this may account for the injuries. Professor Sellar said it was highly unlikely and Professor AM agreed (thereby appearing to shift
somewhat from her position in her report). Shortly before the fact-finding hearing in March 2022, the local authority provided a letter from ‘Dr TM’, which was a neuro-radiology consensus statement. This had not appeared in the medical records available to the court and the parties and the statement included a discussion between 4 consultant paediatric radiologists from GOSH. That statement recorded that they thought the account put forward by the parents (a fall from a height of 5.5ft whilst being carried by the father) was compatible with the radiological findings. In fact, they concluded that a fall from a carer’s arms is more likely to be responsible for complex and more extensive skull fractures and intracranial injuries than a typical short height accidental fall.
The fact-finding hearing commenced on 21 st March 2022. After hearing the expert evidence, the local authority accepted that they were unable to establish threshold on the evidence and indicated they wish to seek permission to withdraw the proceedings. The judge refused permission to withdraw the proceedings, noting that withdrawal at this stage would “leave
many open questions, including conduct of medical professionals and a lack of a clear decision in the interests of the children. It would leave the parents open to questions about the cause of the juries [sic – presumably this should say ‘injuries’] in future.” So, what exactly emerged during the course of the expert evidence? In oral evidence, Professor AM started out by saying that a fall from 5.5 feet might cause one of the fractures but not both. After lunch, and after considering some further literature, she reverted to her initial report and said her opinion was that one impact could have cause the
injuries; that she did not know how an infant skull would react and the injury could have happened as described by the parents or it could be inflicted.
Turning to Professor Sellar, he did not agree with consensus statement from the GOSH consultant neuroradiologists. He maintained that while the accident described by the parents could have caused the injuries, it was not probable. Under cross-examination, a number of difficulties with his evidence arose. The plethora of failures identified by the court in respect of Professor Sellar’s conduct in the case makes for shocking reading, particularly bearing in mind what was at stake for the parents if his evidence had been accepted. Para 132 of the first judgment says as follows:
[132] The Father described Professor Sellar as an expert who, as the court accepts was evidenced by Professor Sellar himself:
132.1. does not read the material provided
132.2. does not make it crystal clear to his instructing solicitor that he has been unable to access crucial material
132.3. does not follow the terms of his letter of instruction
132.4. relies on summaries and/or views of others without verifying those summaries and/or views against the primary source material
132.5. relies on the opinion of other experts in the knowledge that they did not have all relevant facts/documents before forming a view
132.6. fails to acknowledge where factual disputes may be relevant
132.7. fails in his duty to mention all matters that are relevant to the opinions he expresses and anything that might adversely affect his opinion
132.8. fails to mention the range of reasonable opinion and the extent of that range
132.9. suggests to the court that opinions of others (in this case neuroradiologists) have been taken into account when they have not
132.10. misquotes another expert and therefore acts in way which is likely to mislead the court
132.11. fails to grasp what research (within his own expertise) demonstrates132.12. misrepresents what research says and/or shows
132.13. comes to the case with a preconceived opinion which he is then unreasonably reluctant to revise, even in the face of clear evidence
Pretty bad, isn’t it?
The court eventually concluded that there is no evidence on which the court could make any finding other than that the injuries were caused accidentally, as stated by the parents.
The court ordered that an anonymised judgment be published, noting the public interest in doing so and that it would be “in accordance with transparency”. The court declined to name any treating consultants in the judgment for various reasons, including them not being instructed experts in the case; the court being wary of dissuading experts from assisting the family court; and the risk of jigsaw identification (i.e. members of the public putting 2+2 together with the limited factual matrix in the judgment and identifying the family).
The court took a different approach in terms of Professor Sellar and Professor AM. They were instructed experts in the case. The court gave them the opportunity to provide representations on the issue of publication. The judge then released a second judgment on the specific issue of naming them in the published judgment. Both Professor Sellar and Professor AM, perhaps unsurprisingly, wanted to remain anonymous in the published judgment. After summarising the applicable law, the court noted the general position:
“This Court accepts there is no presumption or starting point and compelling reasons do not have to be established before anonymity is granted. While there is an ongoing move towards more transparency in the Family Court, there is no starting point of transparency either.”
Ultimately, the court determined (as you’ve probably worked out) that Professor Sellar should be named but not Professor AM, for fear that the latter would be “tarred with the same brush”. Professor AM fundamentally appears to have been in a different position to Professor Sellar; the same damning findings were not made against her and while she appears to have flip-flopped in her position, that isn’t the be-all and end-all as we’ve seen from the first case in this blog post. The father had reminded the court in the first judgment that Professor AM “faced up to and accepted matters put in cross-examination… in stark contrast with the evidence of Professor Sellar”.
Within its analysis, the court was not persuaded by Professor Sellar’s submissions, which included that a provisional rather than final report had been filed by mistake (a bold submission, given the report was signed, he had an experts meeting on the basis of that report, and went into the witness box and confirmed the truth of its contents!)
Professor Sellar argued that he would be vilified and harassed if named. The court concluded:
“Nobody deserves to be vilified, targeted or harassed just for doing their job. Sadly, it seems to be commonplace in modern society, where information can spread around the world in seconds and commentators can mis-report information simply to increase readership. However, the public interest in a ‘right to life’ and the polar views that may apply (the Abbasi case) are likely to be far different to a case about whether a child has sustained accidental injury. Criticism of an expert in a decision of the Court does not automatically lead to vilification.
The court’s final word on the matter:
“Professor Sellar argues the parents’ rights to free speech should be curtailed. As a medical expert in a public law case he could not have approached the matter with any expectation of anonymity. He is asking for their right to free speech to be curtailed to avoid the consequences of his own performance in this case. It is the decision of this Court that this would be an unfair restriction on the parents’ right to free speech and anonymity of his name is refused.”
Final thoughts
So what have we learned? Changing your mind as an expert is probably to be expected, especially in fields where the science is contentious and continuously developing. However, not reading the papers, not following your instructions, misrepresenting research, and being closed-minded in the face of evidence that challenges your opinion will probably
get you into hot water with the court.
Go figure.
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