This judgment is being handed down in public on the 20th March 2007. It consists of 103 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of his family must be strictly preserved in accordance with the publicity restraint order which has been renewed and which is dated the 20th March 2007.
MANCHESTER DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| Oldham Metropolitan Borough Council
|- and -
| KPW (a child)
(by his children's guardian, Jacqueline Coultridge)
|Dr W. St C. Forbes
Mr Anthony Hayden QC and Mr Karl Rowley (instructed by Pearson and Hinchliffe) for the 1st Respondent (Mother)
Miss Eleanor Hamilton QC and Mr Bansa Singh-Hayer (instructed by Platt Halpern) for the 2nd Respondent (Father)
Mrs Sally Bradley QC and Ms Erica Carleton (instructed by Rothwell and Evans) for the child (the 3rd Respondent, by her children's guardian, Ms Jacqueline Coultridge)
Mr John Sharples (instructed by Hempsons) for the Intervenor
Hearing dates: 14th November 2005, 17th , 29th , 30th and 31st January 2007
Crown Copyright ©
|Preamble||1 to 4|
|Background||5 to 26|
|The Proceedings and Medical Evidence leading to the Finding of Fact Hearing||27 to 36|
|The Finding of Fact Hearing before Her Honour Judge Newton||37 to 41|
|The Appeal||42 to 48|
|The New Medical Evidence||49 to 60|
|The Re-Hearing||61 to 66|
|The Current State of the Medical Evidence||67 to 73|
|The New Medical Consensus||74|
|Analysis||75 to 89|
|Lessons to be Learned||90 to 100|
|Publicity||101 to 103|
Mr Justice Ryder :
i) K has never been a victim of non accidental injury
ii) The care of K by his parents is and has always been exemplary
iii) K's parents and relatives acted promptly and appropriately in obtaining medical treatment for him.
" in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision-maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information, if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to:
(i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered;
(ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause;
(iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm
(iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view; and
(v) state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view."
The Proceedings and Medical Evidence Leading to the Finding of Fact Hearing
"the diagnosis and timing of possible non-accidental injury is wholly dependent upon the cumulative information gathered from the CT scan and the MRI scan. It will be very important to ascertain if there is any difference of opinion between the radiologists, and I would defer to radiological opinion in this matter. If however Dr Kumar disagrees with Dr Forbes' interpretation of the MRI scan then other issues would become important, for example more detailed investigation into possible clotting disorders such as Factor XII deficiency. It is essential to paediatric opinion that there is some consensus from the radiologists."
The Finding of Fact Hearing before Her Honour Judge Newton
"in the case of P,C and S v. United Kingdom (2002) 35 EHRR 31,  2 FLR 631 the statement of general principles between paras  and  reinforce the obligation to ensure within the court process the exploration rather than the exclusion of expert assessment and opinion that might negate the State's case for the permanent removal of a child from his parents"
The New Medical Evidence
i) Both of the conflicting opinions were apparently within mainstream, orthodox interpretation of radiological materials
ii) The descriptions of the radiological presentation showed one matter about which the two experts agreed i.e. that is that the signs were a dis-correlation: there was more than one sign to interpret and orthodox interpretations drove each of the experts in different directions to the extent that at one point the court was asked to describe what it saw on the relevant films. This I declined to do: if the court had the skill and expertise to interpret the materials it would not have asked for expert assistance
iii) The question upon which the experts disagreed was not susceptible of being answered by a judge determining credibility
iv) The issue was whether either expert's evidence was capable of being sufficiently cogent for the proof of an inherently unlikely event: NAHI or pre-birth incident or, let us not forget, a presentation of unknown aetiology
v) Both explanations were arguably cogent on the face of the evidence presented and the court cannot and should not abrogate its duty to come to a conclusion in the interests of the child
vi) Although the risk was very significant indeed it could be met by the agreements that were possible between the local authority and the parents provided that there was the additional protection of the court's process during a trial rehabilitation
vii) While the question as to cause was determined, if that be possible, interim care orders could be used to manage the rehabilitation and that would be both necessary and proportionate (following the exceptional course described in X Council v. B  EWHC 2015 (Fam),  1 FLR 341 per Munby J. at paras  to  albeit in different circumstances)
viii) Far from describing the same radiological presentation, the evidence of Drs Forbes and Stoodley differed not just as to interpretation but even as to the description of K's scans.
The Current State of the Medical Evidence
The New Medical Consensus
i) the signal changes in the basal ganglia and thalami are real and not artefactual.
ii) the pattern of damage demonstrated in the MRI scan of K's brain is likely to be due to an episode of transient but profound asphyxia some days or weeks prior to delivery.
iii) it is very unlikely that non-accidental injury could cause the pattern of insult seen in the imaging scans of K's brain.
"we must be vigilant to guard against the risks and we must have the humility to recognise and to acknowledge the public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice... We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the Family Justice system... open and public debate in the media is essential."
i) K was separated from his parents for 12 months;
ii) The parents bore an almost intolerable burden of being unjustly accused of inflicting serious injury on their infant son;
iii) The parents experienced the nightmare of what has transpired to be a false finding by a court. They lived for 12 months with the opprobrium and suspicion of friends and neighbours;
iv) On finding herself pregnant during the course of proceedings the mother decided to terminate that pregnancy, unable to face the inevitable separation from her baby that would have followed from such serious findings. I am told that just as she grieves the loss of those many crucial months with K she carries an additional loss of another potential life.
i) Whether Dr Forbes' interpretation of K's radiological presentation as white matter tears was wrong i.e. outside any orthodox or mainstream opinion; and
ii) Whether Dr Forbes failed to advise his colleagues and the court that the signs he described on K's MR scan were highly unusual in that he had experience of only two such presentations before.
i) In his first report he raised the possibility that the thin subdural haematoma that he had identified may be a complication of child birth
ii) The clinicians who had also raised this and other aetiologies and who had expressly or impliedly highlighted the unusual features of the case and asked for a referral unanimously reached a conclusion with Dr Forbes at the experts' meeting on the 24th March 2005 that K had suffered a non-accidental injury: they went on to agree a specific mechanism
iii) Dr Forbes' radiological colleagues were themselves specialist consultants: the very fact of their referral indicated the unusual nature of the case
iv) The clinicians understood that radiology was but one part, however important, of an overall clinical picture and each clinician, most particularly Dr Forbes, was astute not to stray into the specialism of others.
Lessons to be Learned
i) Local authorities should always write a letter of instruction when asking a potential witness for a report or an opinion, whether that request is within proceedings or pre-proceedings e.g. when commissioning specialist assessment materials, reports from a treating expert or other evidential materials and the letter of instruction should conform to the principles set out by the Family Justice Council at www.family-justice-council.org.uk and the Chief Medical Officer at Annex B para  of 'Bearing Good Witness' (2006) 30 October and Charles J. in A County Council v. K, D and L (supra) at para .
ii) When requesting and collating existing materials, all parties should be vigilant to record requests of third parties for disclosure and their responses, so that the spectre of partial disclosure which tends only to prove a case rather than give full and frank information can be dispelled. Furthermore, great care must be exercised when placing reliance on materials that have not been produced either as 'original medical (or other professional) records' or in response to an instruction from a party as these materials may contain an assumption as to the standard of proof, the admissibility or otherwise of hearsay evidence and other important procedural and substantive questions that relate to the differing purposes of other enquiries (e.g. criminal or disciplinary proceedings);
iii) Once instructed, experts in their advice to the court should conform to the best practice of their clinical training and, in particular, should describe their own professional risk assessment process and/or the process of differential diagnosis that has been undertaken, highlighting factual assumptions, deductions there from and unusual features of the case. They should set out contradictory or inconsistent features. They should identify the range of opinion on the question to be answered, giving reasons for the opinion they hold. They should highlight whether a proposition is an hypothesis (in particular a controversial hypothesis) or an opinion deduced in accordance with peer reviewed and tested technique, research and experience accepted as a consensus in the scientific community. They should highlight and analyse within the range of opinion an 'unknown cause', whether that be on the facts of the case (e.g. there is too little information to form a scientific opinion) or whether by reason of limited experience, lack of research, peer review or support in the field of skill and expertise that they profess. The use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance;
iv) An expert should be asked at the earliest stage and in any event should volunteer an opinion whether another expert is required to bring a skill or expertise not possessed by those already involved or in the rare case a second opinion to a key issue that has been identified by the court and, if possible, what the question is that should be asked of that expert. In any event, far greater heed should be paid to advice from experts as to the questions that they are able to answer and that might be relevant to the court's determination;
v) The 'Code of Guidance for Expert Witnesses in Family Proceedings' at Appendix C to the Protocol (supra) should be amended to incorporate the recommendations made above.
"it is our view that paediatricians involved in the acute management of patients should not be expected to give expert testimony in cases involving those patients. It is a sine qua non that doctors treating patients must develop partnerships with them and with the immediate family to ensure the best medical outcome. This will inevitably result in a degree of intimacy and therefore subjectivity when evaluating the case as a whole. This is the opposite of what is required of the expert witness, who should be objective, impartial and detached"
"In reaching my decision a number of processes have to be undertaken. The mere expression of opinion or belief by a witness, however eminent, does not suffice. The court has to evaluate the witness and soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic and proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence".
Case Number: MA05C01045
Subject to any different Order being made in the meantime, this Order shall have effect:
In the case of the mother, the father and the child, until 8th November 2022, the 18th birthday of the child whose details are set out in Schedule 1 [deleted] to this Order.
2. Who is bound?
This Order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the Order has been made.
3. Publishing restrictions
This Order prohibits the publishing or broadcasting in any newspaper,. magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:
(a) the name and address of:-(i) the child;(ii) the child's parents (whose details are set out in Schedule 2).
(b) any picture being or including a picture of the mother, the father, the child, or of any place at which they are residing;
(c) any other particulars or information relating to the mother, father and the child.
IF, BUT ONLY IF, such publication is likely to lead to the identification of the mother, father, and/or the child as being the persons in respect of whom false findings were made at first instance, the parents being found to be possible perpetrators of non-accidental white matter tears to the child's brain, and which findings were overturned by the Court of Appeal, and in respect of whom it is now agreed by the relevant medical experts that the changes to the child's brain were not caused by inflicted injury.
4. No publication of the text or a summary of this Order (except for service of the Order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.
5. Restriction on seeking information.
This Order prohibits any person from seeking any information relating to the mother, father and/or child from any of the following:
(a) the child;
(b) the mother and father;
(c) the staff or fellow pupils at any nursery or school which the child may attend.
6. What is not restricted by this Order?
Nothing in this Order shall prevent any person from:-
(a) publishing information relating to any part of a hearing in a Court in England and Wales in which the Court was sitting in public and did not itself make any Order restricting publication.
(b) seeking or publishing information which is not restricted by paragraph 3 above.
(c) inquiring whether a person or place falls within paragraph 3(a) above.
(d) seeking information from the responsible solicitor acting for any of the parties, whose details are set out in Schedule 3 to this Order.
(e) seeking or receiving information from anyone who before the making of this Order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
(f) publishing information which before the service on that person of this Order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the Applicant and may be served by any other party to the proceedings:
(a) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services as they think fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or the website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
(b) on such other persons as the parties may think fit, by personal service.
8. Further applications about this Order
The parties and any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than 48 hours notice to the parties.