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Court Reporters -CAFCASS - Sexual abuse Expert diagnosis
The Court of Appeal has made an order in
this case restricting disclosure, or reporting, of information
in this judgment. Anyone to whom a copy of this judgment is
supplied, or who reads it in whatever circumstances, is bound
by that order, details of which may be obtained from the clerk
of the court.
____________________
RE T (CHILDREN)
____________________
1. The local authority supported by the guardian of a little
girl, ET, now aged three, sought permission to appeal the
decision of His Honour Judge Wade given on the 24th November
2003 in which he found that the threshold criteria under section
31 of the Children Act 1989 had not been met and dismissed
the care proceedings brought by the local authority, in respect
of ET and her elder brother LT. Mr Jonathan Baker QC, Mr Jonathan
Sampson and Mr Ian Robertson appeared for the local authority
and for the guardian. Miss Pamela Scriven QC and Mr Richard
Hadley appeared for the mother and Mr Stephen Wildblood QC
and Mr Andrew Grime appeared for the father. The father's
brother NT was not represented on the appeal. This Court granted
permission to appeal; allowed the appeal and transferred the
case to the High Court for a rehearing. We made interim care
orders. We reserved our reasons for our decision, which we
have set out below.
The Background
2. The mother is 29 and the father is 28. The father has a
younger brother NT who is 23 or 24. He has learning difficulties.
The mother and father met and commenced a relationship in
1997. Their first child LT was born on the 16th October 1998.
Their second child and the subject of the medical concerns,
ET, was born on the 19th January 2001. NT moved to live with
the family in August 2002 in order that the father might help
him to find a job. ET was a large and heavy child and in September
2002 her weight was on the 97th percentile and was approximately
that of a child of over four years old. ET shared a room with
her brother LT. On the 4th September in the early morning
NT went to work before 6.00 am. The mother was sleeping with
E in her bunk bed and the family got up about 6.15 am. The
father went to work at about 7.00 am and the mother changed
ET's nappy which was wet. She saw nothing of concern. A little
later she changed ET's nappy again because it was dirty. Again
there was nothing of concern. ET went to sit on the potty
in the living room. The mother's account was that, as she
went into the kitchen, she heard a hysterical scream and she
ran back into the living room and found ET bent down on the
potty. The mother picked her up and saw lots of blood coming
from between her legs. The mother went as soon as possible
to her local surgery with both children. The general practitioner,
Dr F, examined her superficially. The mother did not tell
him about the child screaming hysterically nor that she had
fallen on the potty. In the absence of any evidence of trauma,
Dr F was not unduly worried. After discussions with her mother,
the mother took the child to the accident and emergency department
of the local hospital. A triage nurse first saw the mother
and ET. Her note of the discussion recorded 'no evidence or
memory of trauma.' The child was then seen by the duty doctor,
Dr B, and the mother told him that she had heard ET scream
but had seen no evidence that ET had hurt herself. The child
was then referred to a paediatrician, Dr A, who identified
a perineal tear and referred the child to a paediatric consultant,
Dr G who saw her on the following day, the 5th September.
She saw the perineal tear and arranged an examination under
general anaesthetic which was conducted by a police surgeon,
a gynaecologist and Dr G. This disclosed a perineal tear,
one centimetre deep and two centimetres long extending from
the posterior fourchette to the perineal body near to the
anal margin. The perineal body was partly disrupted. The tear
was very recent. The hymen was intact and no injury was found
in the upper vagina. The tear required two stitches. Examination
of the anus revealed fissures at 10 o'clock, 12 o'clock, 2
o' clock and an anal tag at 4 o'clock. There was no bruising
round the injuries. Drawings were made and photographs taken
of the injuries. LT was examined and nothing of significance
was found.
3. As a result of these findings in relation to ET, Social
Services became involved and the children were voluntarily
accommodated with the maternal grandparents with whom they
have remained throughout the proceedings. Interim care orders
were made in respect of both children on the 13th January
2003. The case was transferred to the county court.
The medical evidence
4. Dr G, the consultant paediatrician who examined E and two
other consultant paediatricians instructed as experts, Dr
P and Dr W, gave evidence at the hearing before the judge.
All three produced reports and discussed their findings with
each other. Neither Dr P nor Dr W was able to examine ET.
Most unfortunately, for reasons which I shall explore later
in this judgment, Dr W was unable to have proper access to
the photographs and then only to see some of them before the
hearing. This had several most unhappy results; Dr W gave
his first opinion without seeing any photographs and there
were months of delay before the photographs were made available
to him; he eventually saw some of them, but when Dr W and
Dr P discussed the case, they did not know that they had not
seen the same set of photographs and their differing conclusions
were at the time difficult to reconcile. It was not until
Dr W came to court on the 19th May 2003 that he was shown
another set of photographs for the first time. Not surprisingly
Dr W had changed his opinion about the injuries by the time
the case was eventually heard in October 2003.
5. After Dr W saw the first set of photographs he formed the
view that the anal injuries were not as serious as described
by Dr G. The new set of photographs were clearer and he came
to the conclusion that the anal fissures were serious and
he was able to see the depth of the vulval injury which in
his oral evidence he said had impressed him. By the time the
medical evidence came to be considered by the judge, he had
to deal with the changing opinion of Dr W and to disentangle
the stages of the medical evidence in line with the degree
of information available at each stage. I have considerable
sympathy with the task which the judge faced and his failure
to come to grips with it was another sad result of the non-disclosure
of the crucial photographic evidence.
The judgment
6. The judge gave a most careful and detailed judgment in
which he set out a summary of the evidence of the three paediatric
experts. He found that Dr P concluded that the probability
of sexual abuse was higher than a straddle injury. Dr W originally
considered that the evidence for either was fairly scant,
but straddle injury was more probable. The judge said that
"Significantly at that stage, both experts were concerned
'as to whether the probability of either cause can be determined
to the level required for the court.'"
7. The judge then considered Dr W's change of mind. The judge
recognised that the photographs seen by DR W for the first
time at court had a very significant part to play. The judge
concluded
"Dr W said this in his letter to Mr Robertson: 'Given
the photographs that I examined, I came to the view that I
could not equate Dr [G's] descriptions with the photographic
evidence.' Although he does not go so far as to say it, that,
it seems to me, is really saying that Dr W did not accept
the accuracy of Dr [G's] findings in their entirety. It was
not until he saw the 'new' photographs that he had to acknowledge
that she was right after all as to the depth of the vulval
injury. It is right to say that the way that is has happened
is unsatisfactory, and I am urged on behalf of the father
to consider the quality of Dr [W's] evidence. Taking all the
circumstances into consideration, whilst I am satisfied that
he has had a genuine change of mind, and that the reasons
he gives for that are understandable, I do consider that it
highlights the medical difficulty in this case. That difficulty,
in my view, is that there is a considerable lack of certainty
in the opinions of the experts, and it does not take much
of a change in emphasis in the way a particular piece of evidence
is looked at, to result in a move from one side of the 'fence'
to the other. I think Dr [W] – and he has not been alone
in this – has found this to be a particularly difficult
case. In my view, his change of mind has the effect of emphasising
the difficulty the experts have had in reaching conclusions
with any real degree of certainty."
8. The judge said that at the experts' meeting they were tending
to the view that the injuries were caused as a result of sexual
abuse. He added
"….there was in my view a significantly more cautious
approach by both Dr [W] and Dr [P] when they came to give
evidence, again emphasising the difficult task of reaching
firm conclusions in this case."
…..I have reached the conclusion that the expert and
other medical evidence, by itself, is insufficient to establish
that [ET] has been sexually abused. Support for that conclusion
comes from the differences of opinion seen in the evidence
of Dr [W] and Dr [P], to which I have referred in more detail
elsewhere, and the view I have taken as to Dr [W's} change
of mind."
9. He referred to the answer given by Dr [P] at the end of
her evidence that she was more than 50% certain and that in
her professional view this was sexual abuse, but he discounted
the answer since it was in response to a leading question.
He found it difficult to reconcile her answer with her other
comments as to the diagnosis and said
"…Ultimately, both these experts have accepted
that what has been found cannot be said to be diagnostic of
sexual abuse…….
I have looked at it all in the context of re B [Non-Accidental
Injury: Compelling Medical Evidence [2002] 2 FLR 599] referred
to above, but in my view the evidence here does not approach
the degree of certainty present in that case."
10. In relation to the evidence given by the family the judge
said that in the absence of any or any adequate explanation
by the mother as to what might have caused the injuries, it
was easy to see why the doctors had 'heightened suspicions'
and concerns. The absence of any explanation as to what might
have occurred was worrying but it would be wrong to speculate.
He formed the view that those suspicions and concerns did
not provide evidence strong enough to discharge the burden
of proof. He considered that each of the parents and NT gave
a consistent account of the events prior to the discovery
of the injuries. They did not attempt to inculpate one another
and the mother acted responsibly in seeking medical assistance.
ET showed no sexualised behaviour .He also pointed to the
absence of any evidence of abuse of the elder child. He found
that there was no strong evidence to support the case of the
local authority and that the threshold had not been crossed.
The appellants' case on appeal
11. On appeal, the appellants' main submissions were directed
to the standard of proof actually applied by the judge, what
was submitted to be his misinterpretation of the medical evidence
at the hearing, his conclusion that the medical evidence alone
was insufficient to establish sexual abuse, and his failure
to analyse the evidence of the parents and to make findings
about the explanations and lack of explanations about the
injuries.
12. The appellants submitted that, despite a correct self-direction
on the standard of proof and the test to be applied in accordance
with re H [1996] 1 FLR 80, the way in which the judge approached
the case was fundamentally flawed. After quoting from the
Royal College of Physicians booklet, entitled 'Physical Signs
of Sexual Abuse in Children', he asked himself the question
" I have had to consider very carefully indeed therefore
whether this is one of those rare cases where a diagnosis
of sexual abuse would be justified on physical signs alone."
13. He answered that question at the end of his judgment in
the negative. The appellants submitted that he did not ask
himself the question whether he was satisfied on the balance
of probabilities to the sufficient degree of cogency that
the injuries of the child were due to sexual abuse. His approach
to the medical evidence fell into the error of requiring a
standard equal to the criminal standard of proof. At different
stages of the judgment he referred to 'it is difficult to
be dogmatic and absolutely certain'; 'degrees of certainty'
or 'degree of certainty' and 'lack of certainty'. He said
"I accept…Mr Wildblood's submission that the court
must look with care at the way in which the experts have used
words and expressions concerning degrees of certainty, such
as 'sure', 'probable', 'serious possibility', 'near as possible
to being sure.'"
14. The appellants submitted that by the time the medical
experts gave their evidence in court and Dr W had had an opportunity
to look for the first time at the photographs, their joint
evidence clearly established that it was more likely than
not that the perineal injuries were attributable to sexual
abuse rather than the possible fall on the potty, the only
explanation given by the family. It was more likely than not
that the anal injuries were caused by sexual abuse and there
was no explanation for them. Taking all the injuries together,
this was a case of sexual abuse.
15. The change of mind of Dr W was treated by the judge as
an example of the difficulties the doctors were having in
reaching a conclusion. This was a fundamental error since
it did not take into account that the reason for the change
of mind was the opportunity Dr W then had to study the photographs.
The judge misunderstood the medical evidence and the conclusions
of the medical experts. He fell into the trap of requiring
confident medical diagnosis instead of assessing the strength
of the medical evidence on the balance of probabilities and
looking at it in the context of the totality of the evidence.
16. The judge did not scrutinise the evidence of the parents,
the explanation for the perineal tear, whether it was likely
to have been caused by the potty and the failure to give any
explanation for the anal injuries. He did not make any findings
as to the credibility of the evidence of the family.
17. In a supplemental skeleton argument the appellant submitted
that the judge fell into the trap identified by the Court
of Appeal in re B (Non-Accidental Injury) [2002] EWCA Civ
752; [2002] 2 FLR 1133 by confusing the differing functions
of the judge and the medical experts.
The submissions of the respondents to the appeal
18. Mr Wildblood submitted that the judge did not apply the
criminal standard of proof. In care cases at the first stage
of reaching the section 31 threshold, the evidence had to
be proved to a high standard. If the judge did apply the criminal
standard, he was right to do so, since in reality, the distinction
between the civil and criminal standard of proof in such cases
was, as Lord Bingham of Cornhill said in B v Chief Constable
of Avon an Somerset Constabulary [2002] 1 WLR 340 at paragraph
31 'largely illusory'. This standard of proof was applied
by Bodey J in re ET(Serious Injury: Standard of Proof) [2003]
2 FLR 1203. The judge was therefore right to use words such
as 'near certainty' in his approach to the medical evidence.
The judge did not consider the medical evidence to be sufficiently
cogent to be able to rely upon it. He was entitled to come
to that conclusion.
19. He accepted that the judge did not deal with the lack
of any explanation for the cause of the anal fissures.
20. Neither Mr Wildblood nor Miss Scriven advanced any arguments
as to the relevance R v. Cannings [2004] EWCA Crim.1 since
they accepted that there was by the time of the hearing before
the judge no serious disagreement between the medical experts.
The standard of proof in civil family cases
21. The test to be applied in care cases was set out in the
speech of Lord Nicholls of Birkenhead in re H (Minors) (Sexual
Abuse:Standard of Proof) ) [1996] AC 563. At page 586 of his
speech he said
"Where the matters in issue are facts the standard of
proof required in non-criminal proceedings is the preponderance
of probability, usually referred to as the balance of probability.
This is the established general principle. There are exceptions
such as contempt of court applications, but I can see no reason
for thinking that family proceedings are, or should be, an
exception. By family proceedings I mean proceedings so described
in the Act of 1989, sections 105 and 8(3). Despite their special
features, family proceedings remain essentially a form of
civil proceedings. Family proceedings often raise very serious
issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is
satisfied an event occurred if the court considers that, on
the evidence, the occurrence of the event was more likely
than not. When assessing the probabilities the court will
have in mind as a factor, to whatever extent is appropriate
in the particular case, that the more serious the allegation
the less likely it is that the event occurred and, hence,
the stronger should be the evidence before the court concludes
that the allegation is established on the balance of probability.
Fraud is usually less likely than negligence. Deliberate physical
injury is usually less likely than accidental physical injury.
A stepfather is usually less likely to have repeatedly raped
and had non-consensual oral sex with his under age stepdaughter
than on some occasion to have lost his temper and slapped
her. Built into the preponderance of probability standard
is a generous degree of flexibility in respect of the seriousness
of the allegation.
Although the result is much the same, this does not mean that
where a serious allegation is in issue the standard of proof
required is higher. It means only that the inherent probability
or improbability of an event is itself a matter to be taken
into account when weighing the probabilities and deciding
whether, on balance, the event occurred. The more improbable
the event, the stronger must be the evidence that it did occur
before, on the balance of probability, its occurrence will
be established. Ungoed-Thomas J. expressed this neatly in
In re Dellow's Will Trusts (1964) 1 W.L.R. 451, 455: "The
more serious the allegation the more cogent is the evidence
required to overcome the unlikelihood of what is alleged and
thus to prove it."
This substantially accords with the approach adopted in authorities
such as the well known judgment of Morris L.J. in Hornal v.
Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach
also provides a means by which the balance of probability
standard can accommodate one's instinctive feeling that even
in civil proceedings a court should be more sure before finding
serious allegations proved than when deciding less serious
or trivial matters."
22. More recent cases have raised the possibility that the
principles set out in re H have been refined. In the first
case, the Divisional Court heard an appeal, B v Chief Constable
of Avon and Somerset Constabulary (see above), against the
making of a sex offender order under section 2 of the Crime
and Disorder Act 1998(the 1998 Act). The justices had found
that the defendant was a sex offender within the meaning of
section 2(1)(a) of the Act and that he had acted on a number
of occasions in a way which brought him within section 2(1)(b).
Section 2(1) states that, if it appears to a chief officer
of police that the following conditions are fulfilled ….
in subsection (1)(a)
"that the person is a sex offender; and"
in (1)(b)
"that the person has acted, since the relevant date,
in such a way as to give
reasonable cause to believe that an order under this section
is necessary to protect the public from serious harm from
him,"
then the chief officer may apply for an order under the section.
23. Lord Bingham of Cornhill, CJ in his judgment considered
the standard of proof to be applied in that appeal and said
at paragraph 31
"In a serious case such as the present the difference
between the two standards is, in truth, largely illusory.
I have no doubt that, in deciding whether the condition in
section 2(1)(a) is fulfilled, a magistrates' court should
apply a civil standard of proof which will for all practical
purposes be indistinguishable from the criminal standard.
In deciding whether the condition in section 2(1)(b) is fulfilled
the magistrates' court should apply the civil standard with
the strictness appropriate to the seriousness of the matters
to be proved and the implications of proving them."
24. I understand from that passage that Lord Bingham was drawing
a distinction between the standard of proof necessary to establish
each of the two subsections and that the standard of proof
set out in the speech of Lord Nicholls in re H (above) was
appropriate to proving the facts required for subsection 2(1)(b).
25. In the second case, R (McCann and Others) v Crown Court
at Manchester; Clingham v Kensington Royal London Borough
[2002] UKHL 39; [2002] 3 WLR 1313, the House of Lords in two
appeals was concerned with section 1 of the 1998 Act in relation
to the antisocial behaviour of three teenage defendants in
the first case and one defendant in the second case. The House
of Lords held that applications under section 1 were initiated
by the civil process of complaint and were not criminal proceedings.
At paragraph 37 Lord Steyn considered the standard of proof
to be applied in such cases. He referred to re H (above) and
said
"Having concluded that the relevant proceedings are civil,
in principle it follows that the standard of proof ordinarily
applicable in civil proceedings, namely the balance of probabilities,
should apply. However, I agree that, given the seriousness
of matters involved, at least some reference to the heightened
civil standard would usually be necessary: In re H (Minors)(Sexual
Abuse:Standard of Proof) [1996] AC 563, 586D-H per Lord Nicholls
of Birkenhead. For essentially practical reasons, the Recorder
of Manchester decided to apply the criminal standard. The
Court of Appeal said that would usually be the right course
to adopt. Lord Bingham of Cornhill has observed that the heightened
civil standard and the criminal standard are virtually indistinguishable.
I do not disagree with any of these views. But, in my view
pragmatism dictates that the task of magistrates should be
made more straightforward by ruling that they must in all
cases under section 1 apply the criminal standard."
26. Lord Steyn accepted the principles set out in Lord Nicholls'
speech above; referred to, presumably, the passage in Lord
Bingham's speech in the Chief Constable of Avon and Somerset,
but gave pragmatic advice to magistrates as how to apply the
standard of proof in applications for antisocial behaviour
orders.
27. In re ET (Serious Injuries: Standard of Proof) [2003]
2 FLR 1203, an application for a care order under section
31 of the Children Act 1989, Bodey J heard an application
in which the baby had sustained skull, brain and other injuries
alleged to be at the hands of her parents. The judge said
at paragraph 2 of his judgment that the standard of proof
was the civil standard of the balance of probabilities and
directed himself according to the principles in re H. He then
referred to Chief Constable of Avon and Somerset Constabulary
and to McCann (above) and said at paragraphs 5 and 6, citing
the passage in re H at page 586 adding his emphasis
"…Although the result is much the same, this [the
cogency requirement] does not mean that where a serious allegation
is in issue the standard of proof required is higher. It means
only that the inherent probability or improbability of an
event is itself a matter to be taken into account when weighing
the probabilities and deciding whether, on balance, the event
occurred."
"So it may very well be that, in looking at these more
recent dicta, one is (as Miss Ball put it) somewhat 'dancing
on the head of a pin'; and no counsel has gone so far as to
submit to me that, in a serious case such as this, it is now
the criminal standard which should in terms be directly applied.
I therefore propose, in applying the civil standard and the
re H (Minors)(Sexual Abuse:Standard of Proof) [1996] AC 563……cogency
test here, to have well in mind the dicta in the latter two
cases just cited. So, whenever in this judgment I 'find' something
occurred, or expressed myself 'satisfied' or 'persuaded' of
some fact or other, it is in the light of the authorities
which I have just been discussing and on the basis that, in
this very serious case, the difference between the civil and
the criminal standards of proof is 'largely illusory'."
Conclusions on the standard of proof
28. I understand that in many applications for care orders
counsel are now submitting that the correct approach to the
standard of proof is to treat the distinction between criminal
and civil standards as 'largely illusory'. In my judgment
this approach is mistaken. The standard of proof to be applied
in Children Act cases is the balance of probabilities and
the approach to these difficult cases was set out by Lord
Nicholls in his speech in re H. That test has not been varied
nor adjusted by the dicta of Lord Bingham nor Lord Steyn who
were considering applications made under a different statute.
There would appear to be no good reason to leap across a division
between crime and preventative measures taken to restrain
defendants for the benefit of the community and wholly different
considerations of child protection and child welfare, nor
to apply the reasoning in McCann to public, or indeed to private,
law cases concerning children. The strict rules of evidence
applicable in a criminal trial, which is adversarial in nature,
is to be contrasted with the partly inquisitorial approach
of the court dealing with children cases in which the rules
of evidence are considerably relaxed. In my judgment therefore
Bodey J applied the incorrect standard of proof in the case
of re ET.
29. In the present appeal, the judge correctly directed himself
in accordance with the test laid down in re H, but he then
allowed himself to elide the distinction between care proceedings
and criminal proceedings in considering the allegations of
sexual abuse. I agree with the appellants that he failed to
distinguish between the different functions of the judge and
the medical experts and was relying on a perceived requirement
of certainty or near-certainty of their conclusions in their
evidence. Thorpe LJ in re B (above) referred at paragraph
16 of his judgment to the importance of focussing upon and
not confusing the functions in a judicial investigation of
this sort and said at paragraph 17
"The expert of ultimate referral was there to guide the
judge as to the relevant medical and scientific knowledge,
inevitably expressing himself in medical language. The judge's
function was a very different one. He had to consider the
question posed by s31 of the Children Act 1989 as to whether
L was a child suffering or likely to suffer significant harm
and whether that harm or likelihood of harm was attributable
to the care given to the child, or likely to be given to him,
if the order was not made."
30. I agree with the submission of Mr Baker that the judge
applied the wrong test to the medical evidence and on that
ground alone, his decision cannot stand.
31. All Counsel invited us, if we allowed the appeal, to order
a new trial before a High Court judge. Since we have allowed
the appeal, it would be wrong for this court to express a
conclusion as to the weight to be attached to any or all of
the medical evidence or to the evidence generally. I shall
try to exercise forbearance, but Mr Baker made two other submissions
upon which I feel I should express some comments, since each
is an additional ground upon which to set aside the decision
of the judge.
32. Dr W was placed in a most difficult and unsatisfactory
position for a medical expert. He did not have an opportunity
to see and examine the child and was dependent entirely upon
the information provided by others. It is clear from reading
the transcript of his evidence at the trial that the photographs
he examined on the day of the hearing gave him a new perspective
of the case and was an important, if not the important, reason
for the change in his evidence. The judge became confused
by the changing views of Dr W and possibly those of other
experts and, I am satisfied, misunderstood the final evidence
which was presented to him. I also somewhat doubt the necessity,
in the case of an expert like Dr P, to discount an answer
given in reply to a leading question. It is clear that the
medical evidence must be re-evaluated in circumstances in
which the medical experts have access to all the relevant
documents and photographs and can give fully informed evidence
to the next judge upon which he or she can assess the cogency
of the medical evidence.
33. The final point upon which I agree with Mr Baker is the
failure of the judge to tackle the likely cause of the two
separate groups of 'injuries' to the child. There was an explanation
of the perineal tear, the straddling of the potty. The judge
only dealt peripherally with that explanation without comment.
He did not comment other than in general terms about the second
set of 'injuries' the anal fissuring. It seems to me that
the judge, having rejected the medical evidence in isolation
from the non-medical evidence found himself in the difficulty
that evidence cannot be evaluated and assessed in separate
compartments. A judge in these difficult cases has to have
regard to the relevance of each piece of evidence to other
evidence and to exercise an overview of the totality of the
evidence in order to come to the conclusion whether the case
put forward by the local authority has been made out to the
appropriate standard of proof. This, in my view, the judge
in this case failed to do.
34. For the above reasons, in my judgment, the decision of
the judge cannot stand and the case requires to be reheard.
35. I should like to add a final comment. Mr Robertson, on
behalf of the guardian, provided us with a helpful note of
the problems which arose over the photographs. Dr W asked
for the clinical photographs of the injuries in March 2003.
It appears that the photographs were held by the police who
initially refused to release them to Dr W. The police eventually
agreed, on certain conditions, and sent them to the doctor.
Most unfortunately there were two sets of photographs taken
at the examination in September 2002 and one set was sent
to Dr W and another set to Dr P. It appears that Dr G had
a complete set of photographs from the hospital which she
brought to court on the 24th November 2003.
36. I do not wish to cast blame on any particular person or
organisation but the failure of the system whereby the relevant
photographs were not seen by all the experts before their
reports were written for the court and not seen at all by
Dr W before he went to court, has had a number of serious
consequences. There were and continue to be serious delays
in the hearing of the case. It was necessary for an appeal
to be heard and a retrial of the whole case before a High
Court judge. This has had an extremely serious effect on limited
resources. It has required several additional hearings before
the original trial in addition to the appeal hearing. It has
caused the cost of the additional hearings, in judge time
and in the time and cost to the local authority which is always
short of social workers and other resources. A guardian has
been tied up for an unnecessarily long time, up to an additional
year at a time when CAFCASS is under extreme pressure from
shortage of guardians. The additional cost to the public purse
from public funding of all parties including the local authority,
albeit from a different budget, for the additional hearings
will have been considerable. Most important of all, the child
and those around her, her brother and the family have all
suffered from the unnecessary prolongation of the stress of
these proceedings. Both ET and her brother LT are entitled
to have their lives sorted within a reasonable period. In
looking at the welfare of the child section 1(2) of the Children
Act states
"…any delay in determining the question [of the
upbringing of the child] is likely to prejudice the welfare
of the child."
37. Photographs have become an increasingly important part
of medical evidence. When they are taken, suitable local protocols
should be devised as soon as possible to enable all the photographs
to be released to all the relevant experts when they receive
instructions to report in care proceedings. I do not know
if this is a widespread problem but it certainly requires
consideration at a national level for discussion between the
judiciary and all the relevant disciplines.
Lord Justice Potter: I agree with this judgment.
Lord Justice Mummery: I also agree.
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