England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HER HONOUR JUDGE NEWTON
MANCHESTER COUNTY COURT

		B4/2005/1065 Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2005

Lord Justice Wall :

1. On 25 July 2005, this court, by consent, allowed an appeal by a mother and a father against an order made on 8 April 2005 by Her Honour Judge Newton in care proceedings instituted by the Oldham Metropolitan Borough Council in the Manchester County Court in relation to their son KPW (henceforth "K"), who was born on 8 November 2004. The judge's order was made at the conclusion of what has become known as the first limb of a "split" hearing, the purpose of which, as the judge herself described it, was to answer the following questions: -

(a) What injuries, if any, had K sustained?

(b) Were the injuries caused accidentally or non-accidentally or is their cause unascertained?

(c) If the injuries were inflicted non-accidentally, by whom were they inflicted?

(d) If they were inflicted by one of the parents acting alone, did the other parent fail to protect K?

(e) Were the threshold criteria at section 31 of the Children Act 1989 met?

2. In a model judgment, the judge answered those five questions in the following way:

(a) K had suffered an acute haemorrhage within his brain substance in the front parietal lobes, more particularly on the left. A subsequent MRI scan had shown evidence of sub-acute haemorrhage in both hemispheres. The cystic nature of the abnormalities on the MRI scan showed evidence of sub-cortical white matter tears. The tears were grave injuries. Without treatment they could have been life threatening. K also sustained a subdural haematoma, that is a tiny collection, which had no clinical significance. As a result of the injuries, K had been floppy, lethargic and difficult to feed. He had developed seizures which were difficult to control. On the balance of probabilities and on the information currently available, he was unlikely to recover fully without some form of neurological deficit likely to affect his executive functions in terms of concentration and learning.

(b) The injuries had been caused non-accidentally. Their probable cause was a single shaking episode involving impact with considerable deceleration forces being applied to the brain. Although the sub-dural haematoma might possibly have arisen as a birth injury, on the balance of probability it was caused during the same incident as the sub-cortical white matter tears, but that finding added nothing of significance because it was the sub-cortical white matter tears that were the critical and significant injury

(c) The injuries had been caused by one of K's parents, but the judge was not able to say which.

(d) Given the unsatisfactory nature of the parents' evidence, it was not a useful exercise to address failure to protect.

(e) The threshold criteria under section 31 of the Children Act 1989 were established.

3. In the overwhelming majority of cases in which such findings of fact are made, the judgment would be unassailable. The judge had accepted what she described as "the medical consensus" in relation to the injuries. She had seen and heard K's parents, whom she found to be unsatisfactory witnesses. The directions the judge gave herself on the law are immaculate. Her reserved judgment is well-structured, thoughtful and clear. Moreover, all the parties before her were represented by experienced, specialist counsel. The case was clearly well conducted and competently argued. What, therefore, went wrong?
4. The answer is that in what, in the instant case, is the critical field of paediatric neuro-radiology, the judge relied on the evidence of a single expert. At the case management conference on 22 February 2005, at a subsequent directions appointment on 23 March 2005, and at the outset of the hearing which led to her order, the judge refused applications made by the parents to instruct a second paediatric neuro-radiologist to examine and comment on the opinion of the first. Neither the refusal on 22 February nor the refusal on 23 March was appealed, and the judgments given by the judge on those dates have not been transcribed.
5. No application for permission to appeal was made to this court until after the judge had made her findings on 8 April 2005. On 6 May 2005, the father applied for permission to appeal the judge's refusal of the application made at trial. On 9 June 2005, the application was refused on paper by Thorpe LJ. The judge's reason for refusing the application at that late stage were unappealable. On 20 June 2005 the father renewed his application, and Mr. Anthony Hayden QC submitted a skeleton argument for the mother. Thorpe LJ then permitted the release of the papers to the second expert, whose report is dated 7 July 2005. That report expresses a clear and fundamental disagreement with the first expert, and supports the parents' case that the injuries have an innocent origin. In these circumstances, all the parties agreed that the judge's findings could not stand, and that the case would have to be remitted to a judge of the Family Division for re-hearing.
6. Both experts are distinguished in the field. Both are highly respected. It would, in my view, be invidious to name either of them in this judgment, and I do not propose to do so. I will identify them only as Dr. A, on whose opinion Judge Newton relied, and Dr. B who reached a different conclusion. Other doctors to whom I will refer will be identified by initials in alphabetical order.
7. Plainly, an appeal which has been allowed by consent is not an appropriate vehicle for a substantial practice judgment, since the arguments addressed to the court are all one way. I venture into the field with some hesitation. But I do so for three principal reasons. The first, self-evidently, is that this court is not a rubber stamp. The second is that we were asked by the Bar to give any assistance we felt able to give on an important point of practice in family proceedings. The third is that what has happened in this case demonstrates that even where there is highly competent specialist representation, medical experts whose integrity and experience are not in doubt, and a judge who is herself both highly respected and a specialist in the field, a risk of injustice remains.
8. It is manifestly not the function of this court to comment on the relative merits of the reports provided by Dr A and Dr B. The case is to be re-heard by a different judge. At that re-hearing it is to be anticipated that both experts will give evidence and be cross-examined. That evidence will form part of an overall picture in relation to which the judge will have to make findings and reach conclusions. I say absolutely nothing, of course, about the outcome of the re-hearing. The judge may agree or disagree with either doctor's conclusion. That will be a matter for the judge alone.
9. The purpose of this judgment, therefore, is different. It is to look, quite shortly; (1) at the advisability of the court relying on a single expert in care proceedings, when the issue that expert has to address is of central importance to the judge's findings; and (2) the propriety of permitting parents who deny abusing their child what can best be described as a second opinion.
10. I can state my conclusion at once, because I accept a submission made in their supplementary submission by Mr. Hayden QC, Mr. Karl Rowley and Mr. Bansa Singh Hayer acting in this court on behalf of both parents. In the course of their argument about the provision of expert evidence in family proceedings they say: -

"In many cases (probably the majority) a clear picture will emerge from a constellation of factors (eg paediatric, radiological, parental history, medical records) which will cumulatively point the court towards certain conclusions. Though those conclusions may be resisted by parents, it would be both unrealistic and unnecessary to permit parents to obtain "mirror reports" in every discipline. In a certain number of cases, however, eg non-accidental head injury (NAHI), or pathologically "unascertained" infant death, certain evidence may become pivotal and by its very nature not easily receptive to a challenge in the absence of any other expert opinion. In our submission, in those cases, the court should be slow to decline an application for a second expert. Strict case management (in accordance with the protocol) should also permit such evidence to be identified within a reasonable timescale."

11. Before giving my reasons for agreeing with this statement, I need to set out the facts. I do so by reference to the helpful chronology prepared by junior counsel for the father. Given the limited nature of this judgment, I will, inevitably, be selective in my recital.

The facts

12. Following his birth, K and his mother were discharged from hospital on 11 November 2004. He was seen at home by the midwife at noon on 21 November 2004, when he was well. He was admitted to the accident and emergency unit of the local hospital shortly before 1 am on 22 November 2004 where he was found to be floppy. During the evening of 22 November he began to have seizures. A cranial ultrasound was performed, which was normal, and an EEG, which was not. A lumbar puncture was performed in order to rule out meningitis, and K was treated with anti-convulsants.
13. On 25 November 2004 K underwent a CT scan. Dr C (a consultant radiologist) reported that it showed "focal area of high density seen in left parietal region measuring 5mm by 5mm with no gross perifocal oedema". He also wrote: "Appearances suggest probably small focal haemorrhage ?? prominent vessel". The scan was sent to a neurologist for an opinion, and an MRI scan was booked for 6 December 2004.
14. Dr. D (also a consultant radiologist), to whom the CT scan was referred confirmed the existence of a left frontal small haemorrhage within the brain substances. There was no soft tissue swelling or fractures. He thought the site of the lesion unusual for it to have been caused by trauma. He emphasised the need for an MRI scan.
15. K was discharged home with his parents on 27 November 2004, with a plan for weekly reviews on the ward. The parents point out that up until the taking of the MRI scan on 6 December 2004, there had been no suggestion to them of non-accidental injury (NAI) by any of the physicians.
16. Dr A reviewed the MRI scan on 7 December 2004. He reported appearances consistent with a previous sub cortical white matter tear in the left parietal region with evidence of sub-acute haemorrhages in the subcortical white matter of both cerebral hemispheres. These appearances, in his opinion, raised a possibility of NAI.
17. Dr A's report was not received by the consultant paediatrician in charge of K (Dr. E) until 4 January 2005. He discussed it with a colleague, Dr. F (a paediatric neurologist) and there was further discussion with Dr. C. Both Dr F and Dr C concluded, in the light of Dr. A's report, that NAI must be considered as a likely possibility.
18. On 7 January 2005, K underwent a full skeletal survey: there was no evidence of any fractures or bony abnormality. After further discussions with the parents, in which they were told of the possibility of NAI, K was once again discharged home.
19. On 13 January 2005, the local authority wrote to Dr A, advising him that it could not initiate care proceedings unless it had reasonable cause to believe that K had suffered NAI, and posing Dr. A a number of questions. On 25 January 2005, Dr. A confirmed his findings, and the local authority issued proceedings on 28 January 2005.
20. On 1 February 2005 the initial child protection case conference did not consider registration of K on the Child Protection Register appropriate since, despite the evidence of NAI, the family was cooperating and K was living with his paternal grandparents.
21. On 3 February 2005, the local family proceedings court made an interim care order and transferred the matter to the county court. Thenceforth, in accordance with good practice, it was case managed exclusively by Judge Newton. At the review of allocation hearing, she ordered a case management conference for 22 February 2005 and directed Dr. G, a consultant paediatrician, to undertake a paediatric overview.
22. At the case management conference on 22 February 2005, the judge decided that a causation hearing was necessary, which she fixed for 5 April 2005. The father sought permission to instruct Dr. B to report, in particular, on the MRI scan. That application was supported by the mother. Neither the local authority nor the guardian opposed it. The judge refused the application. Her order was not appealed.
23. Dr. G reported on 21 March 2005. She recorded that Dr. C had not seen the MRI scan, and stated that "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 C disagrees with Dr. A's interpretation of the MRI scan then other issues would become important, for example more detailed investigation into possible clotting disorders such as Factor XII disorder. It is essential to paediatric opinion that there is some consensus from the radiologists".
24. In the light of this report, the parents renewed their application for permission to instruct Dr. B at a further directions appointment held on 22 March 2005. The judge refused it. Her refusal was, once again, not appealed. The judge did, however, direct a report from Dr. C as to whether he agreed with the conclusion reached by Dr. A in relation to the MRI scan.
25. There was an experts' meeting on 24 March. It was attended by Dr. A, Dr. E, Dr F and Dr. G. Dr. C did not attend, nor did the meeting have the benefit of the report from him which the judge had ordered on 22 March 2005. The experts' meeting concluded that the probable cause of the white matter tears in K's brain was a single shaking episode involving impact, and the consensus was that the injuries had occurred between 11.00am on 21 November 2004 and 12.56am on the following day.
26. Dr. C's report was received on 5 April 2005. He declined to comment one way or the other on Dr. A's report, since he had not come across an MRI scan of a neonate's brain in four and a half years of practice. He suggested that a paediatric neuroradiologist give a second opinion if it was considered necessary.
27. At the outset of the finding of fact hearing on 5 April 2005, and in the light of Dr. C's report, the parents renewed their application for permission to instruct Dr. B. This, of course, involved an application to adjourn the hearing. Dr. B had said he could report within 8 to 10 weeks. The application was made on the basis that Dr. C in his initial report on the MRI scan had considered the possibility of a prominent vessel being responsible for the bleed and that Dr. G had said that radiological consensus was essential to the paediatric opinion.
28. The judge deferred consideration of the submission until she had heard all the evidence. However, in her judgment given on 8 April she expressed her satisfaction with the medical evidence she had heard and read, and rejected any suggestion that there had been a breach of the parents' ECHR Article 6 rights.
29. It was thus not until 6 May 20005, that the father filed an application for permission to appeal against the judge's order made on 8 April. I have already related the history of that application, and the subsequent receipt of Dr. B's report.

Discussion

30. I am very conscious of the fact that we have not had an opportunity to consider the reasons which the judge gave for refusing the applications by the parents for a second opinion on 22 February 2005 and 22 March 2005. Plainly, the application made on the first day of the hearing was bound to fail, since granting it would have required the fixture to be vacated and would have unravelled the judge's meticulous case management. I therefore approach the issue broadly, and without making any criticism of the judge.
31. It was, in my view, clear from the date of Dr A's first report (witness the enquiry made of Dr A by the local authority on 13 January 2005) that the evidence of the MRI scan was critical to the medical conclusion that K had suffered NAHI. It was equally clear that the other doctors, including the neuroradiologists, deferred to Dr. A. Thus the case turned pivotally on Dr A. But Dr. A was the only medical witness properly capable of assessing the MRI scan, and the medical consensus on which the judge relied depended on Dr. A's analysis of the MRI scan being correct.
32. In such circumstances, I am quite clear, speaking for myself, that parents in the position of this mother and father are entitled to a second opinion. For reasons I will give in a moment, it is not, in my view, necessary to see any appeal along these lines in ECHR Article 6 terms. The overriding objective in the Civil Procedure Rules (which applies, of course, in family proceedings) is that cases must be dealt with justly.
33. I am equally conscious that this court does not encourage interlocutory appeals against case management decisions made by experienced judges. I understand also the funding difficulties in mounting such appeals. However, if a second opinion on a critical medical issue is thought to be necessary, it is essential that if, as is likely, the judge has refused permission to appeal. an application for permission to appeal is made to this court swiftly and at the earliest opportunity. Any such application should be marked as urgent. Such applications in children's cases, properly marked as urgent, are placed quickly before a specialist Lord Justice, and if perceived to have merit, will be listed for hearing within days. Self-evidently, the more time goes by, the more difficult any such application is to mount.
34. This judgment is not an encouragement to a disappointed party to challenge pre-final hearing case management decisions. But such decisions do, sometimes, throw up points of fundamental importance. That is the case here. In such circumstances, a party should not hesitate to seek permission to appeal. Such an application, as I have already stated, will be dealt with swiftly in this court. In the instant case, the parents could also make the point that the original application had not been opposed either by the local authority or the guardian,

Authorities

35. We were provided with a bundle of authorities by the parties. In my judgment, the only decision which is directly on the point is the decision of this court in Daniels v Walker [2000] 1 WLR 1382. This decision must, in my judgment, be viewed with a modicum of caution from a family perspective, since experts in family proceedings (particularly in the field of paediatric neuroradiology) are a precious and scarce resource, whereas in civil proceedings experts in less arcane fields are not only more numerous, but also more willing to undertake forensic work.
36. With that important proviso, the question for this court in Daniels v Walker was what approach judges should adopt when a single expert who has been jointly instructed makes a report, and one side or other is unhappy with the report. The context was an injury suffered by the claimant some ten years previously when he was six or seven and had been struck by a car. His injuries were very serious. There was a very substantial report by a jointly instructed occupational therapist, about which the defendant's solicitors were unhappy. However, the claimant's solicitors refused to make their client and his family available to be interviewed by an expert nominated by the defendant's solicitors. The defendant applied to the judge, who refused him permission to call any further expert evidence on the point, but allowed him to put written questions to the expert. The defendant appealed to this court, which allowed his appeal. Giving the leading judgment, the Lord Chief Justice, Lord Woolf, neatly encapsulated the point in the following two paragraphs:

27…… Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.

28. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but that the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

37. In my judgment, these two paragraphs, with the proviso I have identified, apply to the instant case. It is to be noted that both the Lord Chief Justice and Latham LJ in Daniels v Walker rejected an analysis based on ECHR Article 6. It is, of course, the case that the Human Rights Act 1998 had not been enacted when Daniels v Walker was decided on 3 May 2000. However, the Lord Chief Justice remarked: -

"Article 6 could not possibly have anything to add to the issue on this appeal. The provisions of the CPR, to which I have referred, make it clear that the obligation on the court is to deal with cases justly. If, having agreed to a joint expert's report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call evidence, they must be allowed to call it. "

38. It is in the light of these observations that I am content, speaking for myself, to rely on the overriding objective in the CPR, and not to consider the case in ECHR Article 6 terms.
39. The proviso which I have identified finds appropriate expression, in my judgment, in the submission made by counsel for the parents which I have recorded in paragraph 10 of this judgment. They rightly recognise that it would be both unrealistic and unnecessary for the court to permit parents to obtain a second opinion in every discipline. Such a second opinion, accordingly, should in my judgment normally only be permitted where the question to be addressed by the chosen expert goes to an issue of critical importance for the judge's decision in the case. For the reasons I have already given, the instruction of experts in family cases needs to be stringently controlled by the court, but in the circumstances described by Messrs Hayden, Rowley and Hayer in the extract I have cited, they are in my judgment right to submit that the court should be slow to decline an application for a second expert.
40. It is, I think, also important to remember that a second opinion does not necessarily mean additional litigation and substantial additional litigation costs. If the second opinion confirms the first, my experience is that the issues in the case addressed by the two experts are likely to be radically reduced if not eliminated. However, as is self-evident, any medical consensus must be a true medical consensus – that is with each medical discipline making its proper contribution. The medical consensus in the hearing before Judge Newton was only a consensus because all the other doctors, including the neurologists and neuroradiologists, deferred to Dr. A.

Two further points

41. I wish to add two further points. The first is that time-tabling in care cases is not only a statutory duty (see Children Act 1989, section 32), but forms an essential part of the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719 (the Protocol). As counsel for the parents point out, the Protocol is sufficiently flexible to accommodate the obtaining of a second opinion in appropriate cases, but plainly, the likely need for a second opinion requires to be recognised and acted upon at as early a stage of the proceedings as possible. As the chronology of the instant case demonstrates, had a report from Dr. B been ordered on 22 February 2005, the judge's time-table for the hearing on 5 April 2005 could have been sustained. By 22 March 2005, obtaining a report from Dr. B would have meant an adjournment of the 5 April 2005 fixture, and an adjournment on the first day of the hearing would have meant substantial further delay.
42. The second point is more general. Cases in the family justice system involving the deaths of, or serious injuries to children are heard by experienced, specially selected and qualified judges. One of the reasons, in my judgment, why the family justice system has not been the subject of the criticism to which the criminal justice system has recently been exposed, is that family judges rarely decide cases on the evidence of a single expert.
43. Following the decision of the criminal division of this court in R v Cannings [2004] EWCA Crim 1, [2004] 1 All ER 725, and the government's announcement that a number of decisions made in the criminal and the family courts would be referred to the two divisions of this court, only two family cases have in fact reached this court. They are reported as Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA 567, [2004] 2 FLR 263. In both cases the challenge failed. The judgment of the court was given by the President, Dame Elizabeth Butler-Sloss P. in paragraph 26, she pointed out that in a family case involving the death or the non-accidental injury to a child:

"….. the judge invariably surveys a wide canvass, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian."

44. Thus in a child case involving complex and serious injuries, the expert evidence has to be carefully analysed, fitted into a factual matrix and measured against assessments of witness credibility. To achieve justice for parents and for children, medical evidence given in court is tested fully by the advocates, and family judges subject it to rigorous analysis. In this context, where complex medical issues arise, the need for a second opinion on any critical medical issue in the case is, in my experience, rendered all the more important. Furthermore, its provision and analysis by the judge may well render the final judicial decision more secure.

Other matters: the position of the local authority

45. For the local authority, Miss Sarah Singleton put in a skeleton argument which was carefully defensive of the local authority's position. In my judgment, the local authority in this case has nothing with which to reproach itself in its conduct of these proceedings. Local authorities are in a difficult position in contested care proceedings involving NAHI. Parliament has laid on them the burden of proving the threshold criteria. This requires a delicate balance between the need to make out a case and the duty to place all relevant information before the court. In my judgment, this local authority trod that delicate path correctly. Most important, for present purposes, it did not oppose the parents obtaining a second opinion on 22 February 2005 and only did so later when it was apparent that obtaining the report would delay the fixture. In each case that seems to me a perfectly proper stance for the local authority to adopt. The terms in which it wrote to Dr A on 13 January 2005 (see paragraph 19 above) do not, in my judgment, imply a prejudgment on behalf of the local authority. I accept Miss Singleton's submission that the local authority simply wished to obtain clarity of view and to be assured that alternative hypotheses to NAI had been properly considered.
46. Whilst there is a clear distinction to be drawn between the functions of treating clinicians and expert witnesses, I agree with Miss Singleton that the fact that Dr. A had had some clinical involvement by reason of his initial review of the MRI scan did not, of itself, affect his capacity to act as an expert witness, I also agree with Miss Singleton that a blanket approach which precludes treating clinicians from becoming jointly instructed witnesses in respect of children they have in fact treated runs the risk of the court being deprived of expertise and excellence in those cases where children have been fortunate enough to have encountered clinically one of the diminishing number of doctors who are also ready willing and able to participate in the forensic process. At the same time, however, the fact that an important opinion is being expressed by an expert who has had clinical involvement seems to me to provide an additional argument for a second opinion, if one is called for by the parents.

The position of the guardian

47. Although the guardian invited this court's guidance on the enquiries that should be made and the reports which should be obtained on behalf of the child in this type of cases, I do not think it either appropriate or even possible to give such guidance. I would make only one general point.
48. Whilst a guardian, quite properly, may well wish to remain neutral in a finding of fact hearing, it seems to me worth remembering that the guardian (and the solicitor instructed by the guardian) do, in my judgment, have a proactive role to play in ensuring that a case is ready for hearing, and that all the appropriate evidence has been assembled. Accordingly, if a guardian takes the view that a second opinion sought by parents is properly necessary to achieve justice, he or she should not hesitate to say so. As I made clear in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211, 229-230, the relationship between the guardian and her solicitor needs to be intellectually rigorous, and in my judgment it is for the guardian and the solicitor he or she has instructed carefully to examine the factual sub-stratum of the case, and to advise the judge what evidence is required to enable the judge to reach a just conclusion.

Conclusion

49. Although I referred in paragraph 45 above only to the local authority, none of the professionals, from whatever discipline has, in my judgment, anything with which to reproach themselves in this case. I hope, however, that the observations which I have made will be of assistance to the profession, and answer some of the questions they posed.

Mrs. Justice Black:

50. I agree

Lord Justice Thorpe:

51. I also agree