ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
HIS HONOUR JUDGE SIMON WOOD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE TREACY
|Re H-L (A child)
Miss Angela Giovannini (instructed by Sunderland City Council) for the Respondent
Hearing date : 10 April 2013
Crown Copyright ©
Sir James Munby, President of the Family Division:
"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'."
We now have to decide what is meant by 'necessary.'
Lord Justice McFarlane:
a) A geneticist;
b) A haematologist;
c) A paediatrician to provide a general overview.
a) On the medical notes that had been disclosed the treating clinicians were proceeding on the basis of a diagnosis of spondylocostal dysostosis. Such a diagnosis could only be formally confirmed following molecular analysis, yet the medical notes did not contain any record of molecular testing. Counsel therefore questioned whether H-L in fact suffered from this specific genetic condition;
b) The question of whether or not a child suffering from spondylocostal dysostosis, or any related genetic condition, might be more susceptible to bruising than might otherwise be the case was covered in the local authority medical evidence in a superficial and unsatisfactory manner in a short letter from Dr Michael Wright, the local consultant clinical geneticist in the following terms:
"[I was asked] whether spontaneous or easy bruising was a recognised feature of spondylocostal dysostosis. I replied that in my experience this was not the case. However, I have a limited experience of this very rare condition and so sought the opinion of Dr Peter Turnpenny, consultant clinical geneticist in Exeter.
Dr Turnpenny did a lot of the original work defining this condition. He replied that he had not come across easy bruising in children with this condition before, nor was there any reason to expect that this would be the case."
c) Counsel argued that the letter from Dr Wright was unsatisfactory, in a forensic sense, for the following reasons:
i) It assumed a clear diagnosis of spondylocostal dysostosis, yet no molecular testing had been disclosed that would confirm such a diagnosis;
ii) Dr Wright, who was to be called to give evidence in the proceedings, plainly had no relevant and specific experience on the key issue of whether this condition rendered a child more susceptible to spontaneous or easy bruising. He could not therefore sensibly be cross-examined on the point;
iii) Dr Turnpenny was the true source of the evidence on this part of the local authority case and he should therefore be formally drawn into the procedure as an instructed expert witness;
d) Whilst the blood testing that had been carried out at the hospital indicated readings which were, with one exception, within the normal range, an independent haematologist should be instructed to advise whether any additional blood testing should be undertaken in view of H-L's genetic condition which, in part, may affect the collagen level in her system and therefore, potentially, the "normality" of any blood readings;
e) Finally, on the questions of the aging of bruising, the position of bruising and, more specifically, the mechanics of bruising with a child who has these deformities, an independent paediatric overview was justified. The latter point arises because, as might be expected, H-L's condition renders her physically inhibited in using her arms to break her fall when she, in common with all other toddlers, loses her balance. This in turn may render parts of her body more prone to injury in the course of a domestic fall than would be the case for a toddler who could stick her hand out in a normal protective manner.
a) Unusual bruising had not been noted on H-L at any time prior to November 2012 and no such bruising has been observed since her reception into foster care;
b) There is no medical evidence to suggest that spontaneous or easy bruising is a feature of her medical condition;
c) Dr Turnpenny's view, as recorded in the letter from Dr Wright, is one that does not admit to any possibility of a causal link between the genetic condition and bruising.
d) There is no positive evidence to suggest that any blood clotting disorder and any outstanding issue as to the significance of the testing can be dealt with by the local paediatric haematologist;
e) Any submissions about bruising and the ordinary potential for toddlers to bruise can be dealt with within the evidence and it is difficult to see how a paediatric overview from a different paediatrician could add to the evidence that already exists.
Lord Justice Treacy: