ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEICESTER DISTRICT REGISTRY
His Honour Judge Bellamy (Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
SIR MARK HEDLEY
|In the Matter of TG (A Child)|
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Ms Jacqueline Matthews-Stroud (instructed by Nelsons) for the mother
Mr William J Tyler (instructed by the local authority) for the local authority
Ms Kate Tompkins (instructed by Dodds) for the children's guardian
Hearing date : 20 December 2012
Crown Copyright ©
Sir James Munby (President of the Family Division) :
"I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.
I can only assume that TG's chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG's head and chest area."
"Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas  EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage."
"Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage."
Dr Van Ee also contemplated experiments using a number of children of MG's age "sitting down rambunctiously" to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.
"TG was just eleven days old when his injuries were discovered; (ii) his Mother has a relevant familial genetic history of Graves' disease; (iii) TG was vitamin D deficient at the time of his injuries (but not "sufficiently so" per the letter from the hospital endocrinologist); and (iv) Professor Taylor's initial response in an email to the lead solicitor for his instruction dated 26 November 2012 15:38 is "the retinal haemorrhages look mild which does not suggest NAI", suggesting they must have a different aetiology."
"With respect to points (ii) and (iii) the recently received medico-legal report from Dr Shaw suggests that these factors are not significant in this case. With respect to point (iv), in an e-mail to the lead solicitor dated 26 November, Professor Taylor says that he has 'not found engineer's reports very helpful in reporting on the eye injuries in similar cases.'"
"I can find nothing in these authorities that leads me to the view that biomechanical engineering evidence is reasonably required in this case, whether as a matter of fairness to the father or otherwise.
I rejected an earlier application by the father. There was no appeal. Since then the reports of the medical expert witnesses have begun to come through. Reminding myself again of the need to tread cautiously given that there are still three medical experts left to report and the evidence of those who have so far reported has not yet been tested in court, it is nonetheless the case that on the basis of Dr Fairhurst's report either the rib fractures and the skull fractures arise from two separate incidents (in which case the father's explanation could at best only be an explanation for one of them) or a single incident occurring … before the date of the incident described by the father.
In the light of that evidence as to timing, it is difficult to see what Dr Van Ee has to contribute to the forensic exercise that cannot equally (and more appropriately) be contributed by the medical experts who have already been instructed.
The proposed cost of Dr Van Ee's report is, in my judgment, disproportionate to the likely benefit to be derived from it. Furthermore, and more importantly, to allow the father's application knowing that Dr Van Ee is not able to report until 25 January is tacitly to accept that the fact finding hearing may need to be put back in order to accommodate his evidence. Given the ages of these children and the fact that these proceedings have already been in train for approaching six months, that delay, if it occurred, could not be described as purposeful or proportionate and would in my judgment fly in the face of the general principle set out in s 1(2) Children Act 1989.
I have outlined the procedural rules in detail. I am satisfied that on a proper application of the approach required by those rules to the facts of this case, the father's application should be dismissed."
"The question then arises who should address the issue of the alleged mechanism of injury in this case?
It is my view that no medical doctor can properly address this issue – they do not have the necessary knowledge or training. The issue can only be addressed by an expert in trauma biomechanics. If this expertise is not obtained then the doctors in the case will be asked to express an opinion outside their expertise – a wholly unsatisfactory, inconsistent and unscientific approach.
I strongly support the notion that an expert biomechanics report be obtained."
"(a) ensuring that [the case] is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"(b) identifying at an early stage –
(i) the issues; …
(c) deciding promptly –
(i) which issues need full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(l) giving directions to ensure that the case proceeds quickly and efficiently."
"(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(4) The court may limit cross-examination."
"… these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application … should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may … decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further."
"even in family cases the days are long past when a litigant was entitled to call however many witnesses he or she wanted. The court as part of its case management powers has undoubted jurisdiction to determine the way in which the case is to be argued, whether the case is to be argued on paper, whether the case is to be argued with witnesses giving oral evidence, who those witnesses should be, what issues they should give evidence on, and so on and so forth. Plainly, this being a final hearing, it was appropriate for the judge to contemplate that the witnesses would give oral evidence, but the mere fact that she limited the number of witnesses in the way in which she did does not of itself demonstrate any error on the part of HHJ Robertshaw; it was in principle within the scope of her case management powers to determine that the witnesses she had identified were the witnesses who the court required to hear in order to determine the issues raised before it."
"No party may call an expert or put in evidence an expert's report without the court's permission."
Rule 25.1 provides that:
"Expert evidence will be restricted to that which is reasonably required to resolve the proceedings."
"In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court."
Rule 25.1 is significantly amended, to provide that:
"Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings"
It is a matter for another day to determine what exactly is meant in this context by the word "necessary", but clearly the new test is intended to be significantly more stringent than the old. The text of what is "necessary" sets a hurdle which is on any view significantly higher that the old test of what is "reasonably required."
"there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown."
My Lord elaborated the point in an important passage (para ) which merits quotation in full:
"I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."
Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children)  EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.
"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark."
"Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process."
Second, as she went on to observe:
"the judge dealing with case management is often better equipped to deal with case management issues."
The judge well acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and 'feel' for the case superior to that of the Court of Appeal.
"The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case which they are managing. This court can intervene only if there has been serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals."
As Black LJ very recently observed in Re B (A Child)  EWCA Civ 1742, para :
"a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task."
"Robust case management … very much has its place in family proceedings but it also has its limits."
I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted "justly", "expeditiously and fairly" and in a way which is "proportionate to the nature, importance and complexity of the issues", but never losing sight of the need to have regard to the welfare issues involved.
"reasons for judgment will always be capable of having been better expressed … reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
"This is a complex, developing and (as yet) necessarily uncertain area of science, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault."
"In the present case the argument was, and is, that biomechanical engineering evidence could, by saying that it was either possible or impossible, help to confirm or refute the father's account that his tripping against the blanket and causing B to hit her head against the door frame caused or triggered her injuries. At best this argument is premature. Mr Collier casts this argument upon the basis that it might assist the medical experts in their review of the case. But let us see whether it does assist them, indeed whether they contend that they would be thereby assisted. It is possible that, when their evidence is collected, it might throw up the need for expert evidence of this character, whether to be given by the distinguished American professor or otherwise. In my view, however, the likelihood is that even at that stage the procurement of such evidence will be seen as unnecessary … I have to say that, in my long and recent experience of trial work in the Division, I have determined a number of cases in which parents put forward versions of events involving a sudden impact of the child's head upon some sort of surface in the course of an accident; and I cannot recall a case in which I considered, or in which it was suggested to me, that the probabilities could not safely be balanced without biomechanical evidence."
Moses LJ and Hedley J agreed.
"It must be recalled that it was part of the appellant's case at trial that the baby's injuries may have been attributable to a fall whilst being held by his mother. This possibility was rejected by the jury. We do not think that the [biomechanical engineering] evidence of Dr Jones could afford any ground for allowing the appeal. Dr Jones accepted, both in his oral evidence and in his written report, that there was very little data to be derived from experiment, as we would expect. He also accepted, both in his oral evidence and in his report, the difficulty of drawing conclusions because of the complexity of a baby's brain. This court, in the Cherry appeal in R v Harris & Others  1 Cr App R 5 heard conflicting evidence from biomechanical engineers, both in relation to the injury to be expected from a fall and the extent to which injury could be caused by shaking (see [81-96]). At [213(iv)] the court described the science of biomechanics as "complex, developing and (as yet) necessarily uncertain". Nothing that we heard from Dr Jones led us to take a different view as to the science from that adopted by the court in Harris. Nothing we heard from Dr Jones leads us to question the safety of the jury's verdict."
"Dr Van Ee is a Professor of Biomechanical Engineering at Wayne State University, working part time. The balance of his time he works for a commercial consulting agency. He has a PhD in Biomechanical Engineering and his area of academic and scientific research is in impact and orthopaedic biomechanics. He studies the influence of forces or impacts on the human body and the injuries the body can sustain. The focus of his research is to define the level of forces or the nature of forces that result in specific types of injuries. The orthopaedic biomechanics is more the study of bones and joints and orthopaedic interventions, such as artificial joints, braces etc which can protect the person from injury during an impact.
I can take his evidence quite shortly as it doesn't contain anything that is not already known to these courts or is already before the court from other witnesses. His evidence both at the CCC and in this hearing made clear there is little data to be derived from experiment and the enormous difficulties in drawing conclusions because of the complexity of a baby's brain. He concluded from his tests and expertise that the mechanism of shaking is unlikely to result in the angular accelerations necessary to tear the cranial vessels resulting in intradural haemorrhage including traumatic SDH, however he accepted that trauma to the head is associated with SDH. He said violent shaking is much more likely to result in neck and torso injuries than an isolated head injury; a child with decreased bone strength would be more likely to incur chest, rib and cervical injury from a shaking mechanism and there were no signs of external trauma consistent with a shaking injury or impact."
"Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known]."
In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.
"The court will be much assisted by submissions from the children's guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice."
Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party's stance. Was this not such a case?
"We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved."
He went on (para ) to refer to the possibility of parties confining themselves to written representations and (paras , ) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.
Lord Justice Aikens :
Sir Mark Hedley :
Suggested Plan for Further Analysis
1 When TG was placed on his side in the bouncy seat, which side was down (left or right)? Did it vary? Was he placed sideways in the seat on the morning of the 22nd?
2 Get consensus from medical experts which, if any of the injuries are specific to direct contact, the range in location where that contact occurred on the body and the nature of the contact (geometry and level of force: 1 lb, 10 lb 100 lb 1000 lb; note: significant is not a level of force). What specific study(s) are they relying on for these conclusions?
3 Get consensus from medical experts on the age of the rib fractures.
4 Get consensus from medical experts if there are indications that this child had a preexisting medical condition or some other predisposition for skeletal or intracranial trauma.
5 If the rib fractures predate the morning of the 22nd, do they show new signs of trauma associated with the June 22 event?
6 Obtain diagram of skull fracture pattern and location
a Does the stellate fracture indicate a specific impact point or could it be a remote branching fracture?
b If the impact point is at the stellate center is the transverse fracture location in the opposite parietal an out bending location consistent with being a remote fracture?
7 Obtain bouncy seat and place CRABI-6 infant crash dummy in it with head accelerometers. Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee at al. 2009 and published injury reference values associated with subdural hemorrhage.
8 If overturn can produce head acceleration consistent with occurrence of skull fracture answer the following question
a Is it possible for a 13-14 month old child to overturn the bouncy seat with a child the size of TG in it?
b If there is reasonable question about if possible performed experiment to address this issue.
i Weight up an appropriate test device to approximate the weight and weight distribution of TG.
ii Two options
1 Have 3-4 13-14 month old children attempt to overturn the bouncy seat with weighted test device strapped in seat (caution: does this teach children it is ok to do this?)
2 Measure forces required to lift and overturn the bouncy seat in lab. After quantifying the forces and motions required construct a small device/structure that does not resemble a seat with a child but takes similar forces and motion to overturn. Ask 13-14 month old children to overturn the device.
9 Review literature for chest forces related to CPR and other medical treatments where rib fracture has been documented to occur. Compare forces to sit down forces of a 13-14 month old sitting down rambunctiously. Experiment to measure sit down forces could be performed by placing a load plate under a test device approximating the important geometry of a child/bouncy seat.