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England and Wales High Court (Family Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Birmingham Women's and Children's Hospital NHS Foundation Trust v KB & Ors [2025] EWHC 1292 (Fam) (12 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2025/1292.html
Cite as: [2025] EWHC 1292 (Fam), [2025] WLR(D) 280

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This judgment was delivered in private and a reporting restrictions order is in force.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with.   Failure to do so may be a contempt of court.

Neutral Citation Number: [2025] EWHC 1292 (Fam)
Case No: FD24P00133

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting at Birmingham Civil Justice Centre on 20-22 and 25 Nov
and at the Royal Courts of Justice on 26-27 Nov & 2 Dec

Royal Courts of Justice
Strand, London, WC2A 2LL
12 May 2025

B e f o r e :

MRS JUSTICE MORGAN
____________________

Between:
BIRMINGHAM WOMEN'S AND CHILDREN'S HOSPITAL NHS FOUNDATION TRUST
Applicant
- and -

1. KB
2. LB
3. FATIMA (By her Children's Guardian, Faye Robertson)
4. NHS BIRMINGHAM AND SOLIHULL INTEGRATED CARE BOARD



Respondents

____________________

Katharine Scott (instructed by Weightmans LLP) for the applicant Trust
Julia Cheetham KC and Eliza Sharron (instructed by Irwin Mitchell LLP) for the 1st and 2nd Respondents
Neil Davy KC (instructed by Cafcass legal) for the Children's Guardian
4th respondent neither present nor represented

Hearing dates: 20-22 & 25-27 November 2024 & 2 December 2024

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mrs Justice Morgan:

  1. On dates falling between 20th November and 2nd December 2024 I heard an application by Birmingham Women's and Children's Hospital NHS Foundation Trust ('the Trust') in relation to a child. The decision I reached is reflected in the judgment reported as Birmingham Women's And Children's Hospital NHS Foundation Trust v KB LB Fatima and others [2024] EWHC 3292 (Fam).
  2. The detail and particular circumstances of that application are unnecessary to rehearse for the purpose of this short separate judgment. The context is sufficiently understood by reference to the nature of the application the Trust made - which was for declarations in respect of a child with a rare and serious genetic health condition, that it was lawful and in her best interests that life sustaining treatment should be discontinued. It was agreed with the court that a later opportunity would be given to file further written submissions and/or evidence if so advised as to the matters with which this judgment is concerned, namely the need for timely and sufficient provision of source material and records. It was my clear view that the focus of the best interests decision should remain where it belonged, on the child concerned and that consideration of these matters should be separate and distinct.
  3. The Impact Of Insufficient Disclosure

  4. On 29th October 2024 I heard the case for a Pre-Trial Review. There were at that hearing difficulties in relation to provision by the relevant ICB of information and a dispute between the parents and the Trust over witnesses. It was possible to resolve the former at that hearing and ultimately, albeit with more court time at further hearings than I would expect, the latter. There were indications however at that hearing that all was not as it should be in relation to the medical records produced by the Trust and which had been the subject of a direction I made at a hearing on 12th July 2024. Those who acted for the parents complained first that the copies which had been produced were of such poor quality that it was not possible to work with them and second that even on what had been produced it was evident that important material was missing and requests for that which was missing had not resulted in its production. A particular issue had been raised about minutes of Multi-Disciplinary Team (MDT) meetings - enquires made of the Trust had met the response that those meetings were not minuted in writing at all. At the time that had struck me as unlikely to be the case, but it later emerged that in this Trust, formal minutes of MDT discussions at which parents are not present are not kept. A discussion, described in the hearing by one witness as a 'huddle' would not be entered in the patient's medical records but might be saved on a hospital secure database. The material missing from disclosure was not said to be esoteric data or records of granular detail, or an aspect which Counsel wanted to 'drill down' further or 'explore', but the sort of primary source material core to assessment of burdens and benefits -such as interaction records. Neither was the material being asked for at the last minute. Sometimes that happens unavoidably in this sort of case but not here. It had been raised early on in the lifetime of proceedings.
  5. On 14th November it was necessary for me to have the matter back in for further case management on urgent application. This was 4 days –or 2 'working days'- before the scheduled starting date. Although it had been asserted by the Trust at the earlier hearing that there were no further records to come and Ms Scott had been instructed that all had been provided, shortly before coming into court more had been 'discovered'. It emerged on enquiry that the additional material was in excess of 800 pages. I required a personal assurance from a named senior person in the legal department and a named senior person in the medical department of the Trust that this last tranche meant that all was now disclosed and there were no more records. It was plain that this volume of material being produced so late might jeopardise the start of the hearing.
  6. The following day on 15th November the matter returned for further case management in relation to witness difficulties. Whilst it seems to me that the difficulties in relation to witnesses within the last week could have been avoided had the matter been approached more constructively, that aspect is not the focus of this judgment. By that date however, yet more records had been found by the Trust and disclosed to the other parties. It may be that the more thorough search for them and their ultimate production was coincidental with the requirement that named senior people had been required to give the assurances I mention above, but that seems unlikely. The net effect of the position was that within the 7 days preceding the scheduled start date of the final hearing something approaching 3000 pages of material – much of it previously said not to exist and/or not to be available- had been produced by the Trust.
  7. In the later statements filed on behalf of the Trust it has been pointed out that some of the material within the 3000 pages of late disclosure was not new and was duplication of that which appeared elsewhere in the records and disclosure. The difficulty however, looking at that material not through the lens of a later review, but from the perspective of a trial starting in 2 working days, is that absent proper indexing and cross referencing it is not possible to know that. It has been properly acknowledged also by the Trust that in this case, the way in which the records were filed within this Trust meant that they were, when disclosed, difficult to follow. It is important to remember that patients' records are not made with court hearings in mind, and will not necessarily lend themselves to easy understanding by those who are lawyers rather than doctors. Late disclosure only serves to exacerbate that difficulty.
  8. Counsel for the parents applied to vacate the listed hearing. In making her application Ms Cheetham KC placed reliance on the very significant difficulty she and her junior now faced. Time had been lost from the week set aside to prepare. It had had to be spent in collating, marshalling, identifying gaps in material, making fruitless requests for it and restoring the matter for the court to make directions to achieve that which should have been forthcoming without them. Even recognising that counsel instructed in this sort of case routinely work well in excess of what many professions would regard as a working day; and having made enquires of the court about a later start for the trial and extra time, Ms Cheetham's misgivings about the task facing her in getting the matter trial ready were well founded. It was not surprising that she felt compelled to submit that she did not feel that she and her team could be sufficiently prepared in time for the start of the case.
  9. In almost any other sort of case I would have acceded without hesitation to the application to vacate the hearing. I held in my mind the judgment of the Court of Appeal (albeit in a different sort of application) given by the President of the Family Division in Re R(Children) [2018] EWCA Civ 198. There, late disclosure of important documents, relevant in that case to a fact-finding hearing, meant that there was insufficient time fairly to prepare a for a hearing notwithstanding the fact that leading and junior counsel were instructed. The circumstances in which counsel in this case found themselves were easily comparable and far more difficult.
  10. The gravity of the application made by the Trust here could hardly be overstated. The stakes do not get higher than this. Those high stakes however, by their very nature fell to be balanced in considering whether to accede to the application to vacate the hearing. As the evidence stood on the eve of the listed hearing there were 4 options open to the court – and therefore to the child – as possible outcomes at the conclusion of the hearing. Relisting this case at a later date in the new year, carried with it the risk that the number of realistic options might well reduce. A component in my thinking in determining the application to adjourn was the irony that whilst the parties who applied to adjourn were the parents, it would be the arguments advanced on their behalf which would be adversely affected if following an adjournment that were to be so. Whilst the application was not supported by those who acted for the child, no doubt similarly aware of the tension in relation to the advantages and disadvantages, who took a neutral stance, it is perhaps obvious that they would be having to form their own view of the burdens/benefits analysis for her under similarly pressured circumstances.
  11. I refused the application to adjourn the hearing. In doing so I acknowledged that it was a decision which a) flew somewhat in the face of the approach taken in Re R (supra) as to preparation; b) did so unavoidably because of the fact-specific circumstances of the subject child in this case; c) placed a burden on counsel which only in the rarest of circumstances could be contemplated. To mitigate to the extent possible, the impact of refusing the application to adjourn the hearing, I delayed the start date by 2 further days.
  12. Following The Substantive Judgment

  13. The solicitor with conduct for the parents has filed and served a statement exhibiting a Chronology of disclosure setting out in detail the difficulties from the first request for medical records (on 14th May 2024) following her instruction by the parents, through to correspondence between their leading counsel and Counsel for the Trust on 19th November 2024 by which time there remained queries as to – for example – where MDT decisions were recorded and apparently still missing notes. The outline description at [7] above of the impact of the late and unsatisfactory disclosure is set out in far more detail. It is unnecessary to replicate that here. The statement also highlights however, the impact on the lay parties which included not only disruption to some of the practical arrangements which had been put in place but also had an adverse effect on their perception of, and trust in, the Trust. It is notable that by the time this statement was made, the first of two statements of evidence had already been filed on behalf of the Trust and that the contents of that statement had gone some way to engendering a hope in the parents that their relationship with the Trust, and their child's treating team, could be rebuilt.
  14. The Trust filed evidence from its Legal Services manager. At the outset of her statement addressing the issues and providing an explanation in relation to disclosure failings, she said this: 'On behalf of the Trust I offer my sincere apologies for the oversight which occurred in procuring the records. I recognise that this was not what should be expected by the Trust by the Court or the parties.' . The tone, as well as the contents of the statements filed, is in my view likely to have contributed to the hope of a rebuilding of relationships to which the parents' solicitor made reference.
  15. It is again unnecessary to set out all of the detail in which the statement addressed some of the reasons why in this case, things went so very wrong with disclosure of documents. An explanation of how a combination of paper and electronic records are kept and then filed into volumes for inpatients was accompanied by an acknowledgment that the system is 'primitive' and that there is a project underway to roll out fully electronic records by May 2025. Further set out is a helpful explanation of what was disclosed in compliance with orders for rolling disclosure, and what was not. In relation to two volumes of medical records the entirely candid explanation is offered that through human error, medical records copied for disclosure and thought to have been sent to the Trust's solicitor for onward transmission had not been. It was then discovered, in a search prompted in part by discovery of the human error, that further additional records which had not been properly filed remained undisclosed. That is plainly an unacceptable state of affairs, and the Trust does not suggest otherwise.
  16. Only part of the difficulty in this case has come from the fact that records were not disclosed. A further problem was poor copying of paper records such that the quality was not sufficient. The Trust had outsourced copying of medical records to a third party. Implicit in the acceptance that it was not realised that the records were poorly copied until complaint was made, is that there was no proper check carried out. The Trust indicates that it is putting in place and audit system to ensure oversight.
  17. The final contributor to the especially problematic issues arising from disclosure in this case was the difficulty of following the records even when a) properly disclosed and b) properly copied. It is right to acknowledge that a patient with very voluminous records, as here, is more likely to have records where there is the potential for misfiling and inaccurate maintenance. Whilst I see how it is that that point it made on behalf of the Trust, it is surely as important for clinical reasons as for legal reasons to take care that this does not happen. The Trust outlines steps it will take (including additional staffing) to address this.
  18. Within the statements filed by the parents' solicitor there is further complaint as to the form of that which was disclosed in that the format meant that it was not possible or at least very difficult to search and navigate within the material. I note that the Trust's second witness statement makes clear that complaint as to this came very late in the day and that had it come earlier steps to conversion to searchable format could and would have been taken in relation to those parts of the material for which software would permit it. This aspect of the difficulties encountered in respect of disclosure is not one about which I make criticism of the Trust. It is an aspect which may warrant consideration at an earlier stage in future cases.
  19. Conclusion

  20. This short judgment is intended as a reminder to the Trusts who are, almost inevitably, the applicants in these difficult and stressful cases that the issues involved are, without hyperbole quite simply issues of life and death. There is an obligation to put before the court and provide to those acting for the subject child's parent and those appointed independently to represent the child's best interests the material necessary properly to make an evaluation of the evidence and to reach a decision on those serious issues. That includes recordings, for example play therapists notes, which are likely to give the Court information about a child's quality of life and which may be held outside the medical records. It is unusual, in my own experience at least, for applicant Trusts in this sort of case not to do precisely that. It has been disappointing that Birmingham Women's and Children's Hospital has in this case fallen short. Although this aspect of the conduct of the case does not fall to be included within the substantive judgment neither should the very real difficulties resulting from the lamentable situation in relation to proper disclosure pass without comment.
  21. I make the following observations resulting from the consequences of the difficulties with disclosure which were, I am sure, not intended, but which just the same had a real impact on the case as it unfolded before me.
  22. i) It is enormously disrespectful to families whose child is the subject of such an application to have repeated hearings at which there is focus on whether material does or does not exist / has or hasn't been produced/ will or won't be available in time to make effective a hearing which has been listed weeks perhaps months in advance, at which they know that the most serious of decisions is to be made about their child.

    ii) It is unacceptable to take so casual an approach as there appeared to be here, to ensuring that the records required and directed are before the court. It has been in this case unacceptable also to put Ms Scott – in whose word both the court and the other counsel rightly have confidence – in the position of saying on instructions one thing only to have to within days, sometimes hours, correct the position.

    iii) That sort of approach to the production of material which everyone who acts in this sort of litigation knows will be needed so as to assess (in the case of the court) and argue (in the case of the parties) the best interests analysis is not good enough. Health Trusts are almost invariably both the applicants, and the holders of the records. There is no question that the significance of the material is not understood or that the applicants are not in the position to have that material ready or near ready as they come to make the application. That is not to say that 'everything' must be disclosed, but a Trust making this sort of application should be on notice that if not at the first then likely at the next hearing, the Judge is likely to be making directions for disclosure of at least some of the medical records and other information held

    iv) It is unreasonable – and professionally beyond discourteous- to put Counsel in the position of having to spend time making applications for material with which they should already have been provided when that time has been set aside for preparation.

    v) It is not right that decisions such as the one which fell to be made for this child in this case are made in circumstances where all involved are placed under unnecessary and unreasonable additional pressure. Neither is it acceptable to risk either that decisions might be made, or just as significantly may be perceived to be made, in a way which is rushed.

  23. Whereas in other categories of litigation in which records are necessary but produced late, inadequately copied or not at all, there is an obvious course open to the court; namely to relist the case when it is properly trial ready (and with attendant orders as to costs), that course is very often not available to the Judge in the Family Division hearing this sort of case – see [9 -10] above.
  24. On occasion the language spoken and the sanctions sounding in costs applied more often elsewhere than in the Family Division, has its place in this Division also. It has the advantage of being clearly understood and has the effect sometimes of ensuring minds are focussed. I had in this case contemplated reflecting in a costs order the consequences of the situation I have described in this judgment. I have at a little distance from the hearings, concluded that it is not the approach to take.
  25. It is not my intention in this judgment to condemn unnecessarily failings some of which lie in human error or to impose some sort of punishment for what has gone wrong and I hope it does not have too much of the flavour of that. The Trust has, in my view commendably, not sought to shy away from the mistakes and inadequacies in this case. I am heartened by the evidence as to the changes it is making and intends to make in its own practices and systems. It is however my view that there is purpose in offering suggestions which may avoid future similar applications made being affected by the issues which arose here:
  26. i) An index at an early stage should be compiled by the applicant of the records held by the Trust including, as well as the clinical and medical records any therapeutic records. A senior person at the Trust should be responsible for reviewing whether all categories of material have been included.

    ii) It is likely to be helpful to identify a person with responsibility for ensuring that the index is kept up to date.

    iii) If records are duplicated or held in more than one place, this should be indicated on that index.

    iv) At the first hearing of the application the index should be available to the court.

    v) Once disclosure into proceedings (or to the parties) is directed from the index the material disclosed should be indexed and paginated. Ideally pagination should be in a form which is then added to rather than changed.

    vi) Once disclosure into proceedings (or to the parties) is directed any material which is copied from paper records should be inspected (and a person from the Trust identified to have responsibility for inspection) to ensure that the copies are of sufficient quality, before it is added to the indexed and paginated material.

    vii) Recognising that human error may occur in any organisation a senior person should be identified with responsibility to ensure that material readied for disclosure is sent out.

    viii) It is likely to be helpful at the first hearing of any application for the parties to have discussions before disclosure of material as to whether it is reasonably possible for that material to be disclosed in a form which makes it text searchable. It will not always be realistic, but it is an issue to be raised early rather than later in the process of disclosure into proceedings.

  27. It was in this case possible to complete the hearing and to reach decisions on the application despite the issues which I have described in this judgment. Possible only because everyone involved, and I include in that those instructed for the applicant Trust, made the greatest efforts to ensure that it was. In this case, the difficulties which arose in relation to disclosure did not ultimately have an impact on the decision I made in relation to the substantive application, the reasoning for which appears in the substantive judgment.

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