WALL J: In Re M (Minors) (Care Proceedings) (Child's Wishes) [1994] 1 FLR 749 I set out my thoughts on the manner in which expert witnesses should be instructed in children's proceedings. I stated, inter alia, the following:
(1) experts should always be invited to confer with each other pre-trial in an attempt to reach agreement or limit the issues; and
(2) careful co-operative planning between the legal advisers to the different parties at an early stage in the preparation for trial should be undertaken to ensure the experts' availability and that they can be called to give evidence in a logical sequence.
I also emphasised the non-adversarial nature of children's proceedings and stressed the vital importance of expert evidence in assisting the judge to reach the right solutions. I concluded that judgment by stating:
'It is preferable that parents and other litigants approach cases with as many of the factual issues as possible resolved, where such resolution is possible pre-trial. Efficient preparation and presentation of medical evidence is in my judgment an important part of that process.'
In Re MD and TD (Minors) (Time Estimates) [1994] 2 FLR 336, I dealt with the procedure for giving estimates of time in children's cases. In the course of that judgment I emphasised the importance of directions appointments and said, inter alia, that where medical experts are involved there should be careful co-operative planning by all the lawyers involved in a case to ensure that sufficient time is set aside for their evidence.
My judgments in Re M (Minors) and Re MD and TD (Minors) (above) were based upon a number of assumptions. Principal amongst them were the propositions: (a) that not only is leave required before the papers in a public or private law Children Act case can be shown to an expert; but also (b) that the court has a proactive role in the grant of leave. Thus in my judgment the court in each case:
(1) has the duty to analyse the evidence and decide the areas in which expert evidence is necessary; and
(2) both the power and the duty:
(a) to limit expert evidence to given categories of expertise; and
(b) to specify the numbers of experts to be called.
A further assumption behind both judgments was that the court should also be proactive: (a) in laying down a timetable for the filing of expert evidence; (b) in making arrangements for the dissemination of reports; and (c) in giving directions for experts to confer.
Those assumptions require to be re-examined in the light of what has occurred in the instant case.
I have been dealing in public law Children Act proceedings with two children, half-brothers, whom for the purposes of this judgment I will call 'X' and 'Y' respectively. X is aged 5, and Y is aged 2. At the conclusion of the hearing I made a residence order in favour of X's father; I made a care order in relation to Y. I found as a fact that Y had been the victim of both factitious and induced illness abuse committed on him by his mother. For the purposes of this judgment I propose henceforth to refer to this aspect of the matter under the initials MSBP (Munchausen's syndrome by proxy).
The parties to the proceedings before me were a local authority, which initially sought care orders in relation to both children but which subsequently limited its application for a care order to Y; X's father, who sought a residence order relating to X; the boys' mother who sought the return of both children to her care; and the boys themselves, appearing by their guardian ad litem. The father of Y took no part in the proceedings.
I do not propose in this judgment to identify any of the parties or their legal representatives (including, of course, the children, but also the local authority). The case does, however, throw up important points of practice, and for that reason I am giving this part of my judgment in open court.
The local authority instituted care proceedings in relation to Y on 18 May 1993, and on the same day made an application for an emergency protection order in relation to him. That application was made because he had been admitted to hospital on 4 May 1993 and tests in hospital had established that prior to admission he had been given a toxic level of Tegratol, a medicine used to control epilepsy. The local authority's case was that Y's mother had admitted overdosing the child, and the local authority expressed its concern that the child would be at further risk if returned to his mother's care.
On 18 May 1993, Dr L, the consultant paediatrician treating Y, made a statement setting out the facts relating to Y and expressed the opinion that Y was suffering from MSBP. I am told that he gave evidence to like effect at the hearing of the application for an emergency protection order.
On 20 May 1993 a circuit judge made interim care orders in relation to both X and Y and directed a s 37 investigation by the local authority. A guardian ad litem was appointed; leave was granted for both X and Y to be medically examined by a paediatrician on behalf of the guardian ad litem and the local authority. Leave was granted for the disclosure of the medical records of both children to all parties and for the disclosure of the mother's medical records 'to a paediatrician and the guardian ad litem'. I am not quite sure what this latter order means, but assume that it should read 'a paediatrician instructed on behalf of the guardian ad litem'. In addition to the s 37 assessment in relation to X, the judge ordered an assessment of the mother and the children as a unit or individually and an assessment of the father in respect of X. I am not entirely clear why two orders were made in relation to assessments; I also assume that there were parallel orders in relation to Y, although the only order I have seen in relation to him provides for him to be placed in the interim care of the local authority until 17 June 1993.
In the event, the matter came back before the same circuit judge for directions on 27 May 1993. Apart from directions dealing with a paternity issue which had arisen in relation to Y and ordering that the mother's contact to X was to be at the discretion of the local authority, the order of 27 May 1993 contains this direction:
'(5) Directions in writing, if agreed, to be fixed within 21 days.'
Once again, I am not entirely sure what this means. It was suggested to me that it meant that if the parties had agreed directions they were to be filed within 21 days. But even with this meaning, leading counsel for the mother conceded that if directions were not agreed, they would not be filed and there was no obligation on any of the parties either to agree them or, a fortiori, to file them. Such an order, in my judgment, is a recipe for drift, and should not have been made.
It is the duty of the court to keep a tight grip on every child case. It is for the court to give directions and it is inappropriate for the responsibility to be delegated to the parties. As I said in Re MD and TD (Minors) (above), directions appointments are extremely important occasions, and the giving of directions is an important, indeed critical, part of the process of ensuring both that a child case is brought on for trial swiftly and that all the relevant evidence is produced within the timescale set down by the court.
The interim order of 27 May 1993 was expressed to take effect until 17 June 1993. On 16 June 1993 the district judge simply renewed it until 15 July 1993. On 14 July 1993 a further 28-day interim order was made by a different district judge who directed that the matter be relisted for 6 August 1993 at 2.05 pm with 5 minutes allowed. On 6 August 1993 a third district judge renewed the order and directed that it be relisted on 7 September 1993, this time with an estimate of 10 minutes.
I am very unhappy about any succession of interim orders made on the nod, but I have not heard detailed argument on the point. No doubt the reason for the orders in this case was the fact that the local authority was still carrying out the assessment ordered by the circuit judge on 20 May 1993: however, the judge had not set a timescale for that assessment and the court had thus deprived itself of the opportunity to take procedural control of the case, which in my judgment was in grave danger of drift.
On 18 August 1993 the mother's solicitors issued an application for interim defined contact to both children and for 'leave to be granted for disclosure of medical records to be disclosed to experts instructed on behalf of the (mother)' (sic). Those applications were returnable before the circuit judge on 1 September 1993.
On that day the circuit judge renewed the interim care orders until 5 October 1993 and granted leave for disclosure of medical records to 'an expert' of the mother's choosing. It is from this order that the subsequent difficulties in the case are said to flow, and I will return to it shortly.
On 4 October 1993 the circuit judge once again renewed the interim care orders until 1 November 1993. Directions were also given that additional statements by the local authority were to be filed within 14 days and any further statements by other parties were to be filed within 14 days after that. The guardian ad litem was directed to prepare an interim report 7 days after the other parties had filed their statements.
On 8 November 1993 the district judge renewed the interim care orders until 29 November 1993.
On 15 November 1993 the case came before the circuit judge on what was described in the court's notice of hearing as a 'contested care hearing' for which a day was allowed, but which was in fact an application for interim contact. Both the mother and the local authority were represented by leading counsel. It was, however, clear that the case was nowhere near ready for trial.
From a bundle of correspondence and a chronology which has been helpfully prepared by junior counsel for the local authority, it appears that the limitation imposed in the order of 1 September 1993 to 'an expert' was a mistake (certainly the summons returnable on 1 September 1993 referred to 'experts' in the plural) and one of the purposes of the hearing on 15 November 1993 was for the mistake to be corrected. There was a summons before the circuit judge seeking correction of the order and it appears from an attendance note prepared by the mother's solicitor that the judge made the order amending 'expert' to 'experts'. It is most unfortunate that this amendment does not appear in the order as drafted by the court.
It is even more unfortunate in my view that the circuit judge was not told that the mother intended in all to instruct six experts: two adult consultant psychiatrists, a consultant child psychiatrist, two paediatricians and a consultant in paediatric biochemistry. Had the judge been told this the case would, in my judgment, have taken a different course.
The order made by the circuit judge on 15 November 1993 states that the full hearing of the matter was to take place on 22 February 1994. I was, however, told at the Bar that this date was not given at the hearing itself but was subsequently incorporated into the order. This was due to the unavailability on 15 November 1993 of the relevant listing officer. I regard this as most unsatisfactory.
On 16 December 1993, a month after the care order of 15 November 1993, the mother's solicitors supplied a list of the six experts she intended to instruct. Nobody appears to have reacted adversely or at all to this information: certainly nobody appeared to think it necessary to advise the court that the mother had instructed six experts.
Principally as a result of the unavailability of the paediatrician instructed on behalf of the guardian ad litem, the case had to be put back to 25 February 1994. On 13 January 1994 solicitors for the guardian (who of course had been quite unable to complete her report due to the absence of medical reports) wrote to the mother's solicitors pointing out this fact and requiring that reports be filed not later than 7 February 1994. On 2 February 1994 the solicitor for the local authority wrote to the mother's solicitors asking them whether their client was intending to oppose the application for a care order in respect of Y and asking for confirmation that all the medical reports would be available by 11 February 1994. There appears to have been no reply to that letter and on 15 February 1994 the local authority's solicitors wrote again expressing extreme concern at the absence of medical reports. It was not in fact until under cover of a letter dated 23 February 1994 that the reports of the two paediatricians, the consultant child psychiatrist, the clinical chemical psychologist and one of the adult child psychiatrist were served. One preliminary report from the second adult psychiatrist arrived on the first morning of the trial (25 February 1994); the second, and much longer, report did not arrive until Monday, 28 February 1994.
Such a situation is wholly unsatisfactory and should never have arisen. What went wrong?
For the purposes of this judgment I identify and wish to examine only one area of particular concern. That is the absence of specific directions being sought from and specific information being provided to the court. It is on this point that I heard argument. I have not examined the chronology in sufficient detail to comment on any other aspect of the procedure, and I recognise that on the mother's side it cannot always have been easy to obtain instructions.
The summons from which I have quoted dated 18 August 1993 is general in its terms. It does not identify any particular expert or area of expertise in respect of which the mother was seeking leave to adduce evidence. As I have already stated, the court was not informed at any stage that the mother intended to instruct six experts. In my judgment a generalised order permitting a party leave to show documents 'to experts' should never be made.
Leading counsel for the mother argued that once the principle was established that expert evidence was required in a given case it was sufficient for the court to grant general leave. Any decision as to the nature of the evidence adduced or the identity of the expert in question was a matter for the mother's legal advisers and the Legal Aid Board. A party, it was argued, must be free to present his or her case as he or she is advised and the court should not seek to fetter the professional discretion of the lawyers advising the mother.
These are powerful arguments, but I do not accept them. I am quite clear that in giving directions for leave to show the papers to experts the court must have at the forefront of its mind the principle that no party should be inhibited or disadvantaged in the presentation of its case by unnecessary restrictions placed on the grant of such leave. At the same time, I am quite satisfied that the principal set out in the previous paragraph is but one of the many factors which weigh in the balance when the grant of leave is being considered.
In my judgment, the overriding principle is that the confidentiality which requires that leave be sought before papers are disclosed is the confidentiality of the court. It is the duty of the court to ensure a fair trial: it is also the duty of the court to exercise control over the evidence which it permits to be adduced before it, in the interests both of justice and of the child or children with whom it is concerned.
The court must also bear in mind that nearly all public law Children Act cases are publicly funded, and in my judgment the court owes a duty to the public to ensure that public funds are not wasted on unnecessary investigation.
Restrictions on the calling of expert evidence are not unique to the Family Division - see, for example, RSC Ord 38, rr 4 and 36. The difference in the Family Division is that because of the interests of minors and the confidentiality of the proceedings, leave to instruct experts has to be sought from the court. In my judgment this confidentiality is something which must be jealously guarded, and the full involvement of the court in the process of defining and limiting the scope of expert evidence is of crucial importance.
I am therefore in no doubt at all that the court has the proactive duties and responsibilities which I set out at the beginning of this judgment. I am also in no doubt that the advocate must come to court prepared to demonstrate the area of expertise for which leave is sought and to justify the grant of leave by reference to the specific facts of the case and the relevance of expert evidence to those facts.
It follows, in my judgment, that orders giving general leave to the parties to show the documents to 'experts' without further definition should never be made. Every order granting leave should either identify the expert or define the area of expertise in respect of which leave is given.
I regret to say that this did not happen in the instant case. The result has been a proliferation of evidence and the risk that the case would have to be aborted.
For example, I see no justification at all for the instruction of two paediatricians on the mother's side; two adult consultant psychiatrists can only in my judgment be justified if the mother genuinely had no confidence in the first and wanted a second opinion. In such circumstances, she can come to the court for leave to seek such an opinion. The chemical psychologist was reporting as to information of scientific fact and analysis. In my judgment an expert of sufficient standing should have been instructed jointly and only if the result was wholly inconsistent with the mother's instructions should two biochemical experts have been approached.
Furthermore, it is quite unacceptable for a total of six reports to be produced within days (and in one instance after the beginning) of an important trial. Had the evidence been in conflict, and had it been necessary for the experts all to be called the trial would have been aborted, to the enormous detriment of the children and the parents of the children.
In the event, by good fortune and by reason of the quality of much of the medical evidence it was only necessary to hear oral evidence from Professor M, and the two adult psychiatrists called on behalf of the mother. Even so, the trial occupied the 6 days set aside for it.
Propositions
What lessons can be learned for the future from this case? In my judgment, the following propositions should govern the grant of leave and consequential directions for expert evidence in children's cases:
1. Generalised orders giving leave for the papers to be shown to 'an expert' or 'experts' should never be made. In each case the expert or area of expertise should be identified.
2. As part of the process of granting or refusing leave either for the child to be examined or for papers in the case to be shown to an expert, the advocates have a positive duty to place all relevant information before the court and the court has a positive duty to inquire into that information and in particular into the following matters:
(a) the category of expert evidence which the party in question seeks to adduce;
(b) the relevance of the expert evidence sought to be adduced to the issues arising for decision in the case;
(c) whether or not the expert evidence can properly be obtained by the joint instruction of one expert by two or more of the parties;
(d) whether or not expert evidence in any given category may properly be adduced by only one party (for example by the guardian ad litem) or whether it is necessary for experts in the same discipline to be instructed by more than one party.
3. where the court exercises its discretion to grant leave for the papers to be shown to a particular expert (whether identified by name or by category of expertise) the court should invariably go on to give directions as to:
(a) the timescale in which the evidence in question should be produced;
(b) the disclosure of any report written by an expert both to the parties and to the other experts in the case;
(c) discussions between experts following future disclosure of reports;
(d) the filing of further evidence by the experts or the parties stating the areas of agreement and disagreement between the experts.
4. Where it is impractical to give directions under para 3 above at the time leave to disclose the papers is granted, the court should set a date for a further directions appointment at which the directions set out in para 3 can be given.
5. Where it is necessary to consider the estimated length of hearing at a directions appointment the number of expert witnesses and the likely length of their evidence should be carefully considered and the exercise which I have set out in Re MD and TD (Minors) (above) undertaken.
6. It is a commonplace of care cases for the local authority to wish at the outset to carry out an assessment. Where this occurs, the court should in my judgment adopt the following approach.
(a) It should specify the time in which the assessment is to be carried out and direct that evidence of the outcome of the assessment be filed by a given date.
(b) It should fix a directions appointment for a date immediately after the date fixed for the completion of the assessments to reassess the case and give further directions for a speedy trial.
(c) Once the local authority assessment is available, immediate thought should be given at the directions appointment following its disclosure to the evidence (expert and otherwise) required to bring the case speedily and fairly to trial. Any directions for expert evidence should identify the areas of expertise for which leave is given and lay down a timetable as per para 2 above.
(d) Where a date for the final trial can be fixed before the assessment is complete that should be done. More commonly, however, it will only be possible to assess the likely length of a case once the initial assessment is complete and the issues in the case emerge.
It follows that advocates who seek the leave of the court to disclose the papers to an expert must apply their minds at an early stage of the proceedings to the issues in the cases to which medical evidence will be relevant. Applications for leave to instruct experts should thus be made at as early a stage in the proceedings as is possible, commensurate with the state of the evidence. Advocates must come to the directions appointment at which the application is to be decided prepared to satisfy the tribunal as to the need for expert evidence of the specified type sought. Given the pressures of work on expert witnesses, particular experts should be identified and instructed at the earliest possible moment, and whenever possible an inquiry should be made of the expert concerned to ensure that he or she can meet the likely timetable of the case.
Had the court been asked to give leave to the mother to instruct two consultant paediatricians (Professor S and Dr B), I am in no doubt at all that such leave would have been refused. Leading counsel for the mother sought to justify the instruction of both experts on the ground that Professor S was essentially an academic paediatrician (albeit with a detailed knowledge of MSBP) and Dr B was the doyen of practising paediatricians with a wealth of clinical experience, but no experience of prognosis in MSBP cases. I am wholly unimpressed by that argument. Both Professor S and Dr B are men of the highest integrity and professional distinction in the paediatric field: if (which I doubt) Dr B did not feel himself qualified to advise in relation to MSBP then Professor S could and should have been instructed alone.
I am, moreover, in no doubt at all that the mother's advisers should have identified to the circuit judge the areas of expertise and the numbers of experts she sought to instruct. Had they done so, I am sure the circuit judge would have made a much more precise order.
As a footnote to this judgment I repeat the concern which I expressed in Re MD and TD (Minors) about the form in which orders under the Children Act are drawn up. In this case, as in others, it became important for the court to understand what had occurred at previous hearings. The current form of orders does not specify what documents the court has read or who appeared. Usually, this information is limited to a statement that the order has or has not been made ex parte. I find this state of affairs unsatisfactory and respectfully invite the relevant rules committee to reconsider the drafting of orders.
DEBORAH DINAN-HAYWARD
Barrister
