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Recent Developments in the Field of Expert Evidence in Family Proceedings

Lord Justice Wall reviews the impact of the recent decision in GMC v Meadow and the proposed reforms of expert witnesses set out in the Chief Medical Officer's report 'Bearing Good Witness'

Lord Justice Wall

Like the story of the proverbial bus, two important, closely related and long awaited developments in the field of expert evidence as it applies to Family Proceedings have come along almost together. I refer, of course, firstly to the decision of the Court of Appeal in The General Medical Council v Professor Sir Roy Meadow (Her Majesty's Attorney General intervening)(1) (GMC v Meadow); and secondly to the report by the Chief Medical Officer, Sir Liam Donaldson entitled Bearing Good Witness – Proposals for Reforming the Delivery of Medical Expert Evidence in Family Law Cases (2) (the Report). This article will concentrate on the Report, which is a consultation document requiring responses to it by 28 February 2007. although the inter-relationship between it and GMC v Meadow is, I think, important.

The context for GMC v Meadow was not, of course, a family case. It was Professor Sir Roy Meadow's ill-advised excursion into statistics in the trial of Sally Clark for the alleged murder of her two sons which resulted in proceedings before the Fitness to Practice Panel (FPP) of the GMC. The outcome was a finding that Professor Meadow had been guilty of serious professional misconduct, and the penalty imposed by the GMC was the erasure of his name from the register. Professor Meadow appealed to the High Court, where his appeal was allowed by Collins J. The finding of serious professional misconduct was quashed, and with it, of course, went the penalty of erasure. However, the judge decided, apparently of his own initiative, that expert witnesses enjoyed not merely immunity from civil suit, but also a wide, albeit not absolute immunity from disciplinary, regulatory or fitness to practice proceedings (collectively identified in the judgments as FTP proceedings) in relation to statements made or evidence given by them in or for the purpose of legal proceedings. It was this particular finding which prompted the Attorney General's intervention. The Court of Appeal held unanimously that the immunity identified by the judge did not exist. The GMC did not seek to reinstate the penalty of erasure, and the Court of Appeal, by a majority (Auld and Thorpe LJJ, Sir Anthony Clarke, MR dissenting) held that whilst guilty of professional misconduct, Professor Meadow had not been guilty of serious professional misconduct.

Although not directly germane to this article, two particular aspects of the case are striking. The first is that the FPP did not have before it either of the judgments of the Criminal Division of the Court of Appeal in Mrs. Clark's case. This was because of an agreement between leading counsel. Counsel for the GMC wanted the FPP to have the second judgment, which allowed the appeal, and quashed the conviction, but not the first, which had dismissed Mrs. Clark's appeal. Counsel for Professor Meadow wanted the FPP to have before it the first judgment, in which Professor Meadow's evidence had been discussed, but not the second. The compromise they reached, which appears to have been accepted by the FPP, was that it should have neither.

The second point which is striking can be sub-divided into two. The first is that there was no attack made on Professor Meadow's evidence that in his opinion neither death was due to natural causes. The second is the extent to which the premise for the statistical evidence which Professor Meadow gave at the criminal trial was not in dispute. As Auld LJ demonstrates in his judgment (3), not only was there no objection made by the defence to its admissibility on the ground that it was irrelevant or unfairly prejudicial; the defence did not challenge in cross-examination of Professor Meadow either the underlying statistics relating to the chances of a child dying from sudden infant death syndrome (roughly 1 in 1,000) or the erroneous proposition that a second death from the same cause could be estimated statistically by squaring the initial figure. Counsel did challenge the figure of 1 in 8,543 as the chance of a child dying from natural causes as being too high, but did not cross-examine Professor Meadow on the erroneous proposition that the prospect of two children in the same family dying from natural causes could be calculated statistically by squaring the figure for one child – so that for a second child, the chances were 8,543 x 8,543, and thus 1 in 73 million.

The reason the Criminal Division of the Court of Appeal allowed the second appeal was, of course, the fact that the crown's pathologist had not disclosed material evidence to the defence, with the consequence that the jury's verdict was unsafe. As a further consequence, full argument on Professor Meadow's evidence was not heard during the second appeal (as it had been during the first), although the court in the second appeal indicated that, had the point been argued, the appeal would "in all probability" have been allowed on that ground also. A re-trial was not ordered for the obvious reason that had disclosure been made, as it should have been, other tests would have been conducted which were now impossible.

The upshot of GMC v Meadow, accordingly, is, in broad terms, that the law remains as it was before the judgment of Collins J in the High Court was delivered. Furthermore, the judgments appear to confirm the advice consistently given by Family judges that experts should never stray outside the particular area of their expertise (4).

My starting point for a consideration of the Report is the judgment given by Thorpe LJ in GMC v Meadow. In the opening section of his judgment, under the heading Family Justice Background (5), he emphasises the importance of medical evidence in the area of child protection, and the substantial reliance which the court places on the professional integrity of the experts who advise it. Furthermore, as Thorpe LJ points out, in the field of family justice, demand for expert evidence exceeds supply. The system is thus very sensitive to increasing or newly emerging disincentives. I am confident that I am expressing an uncontroversial view when I say that it is now a matter of some urgency that the dearth of high quality medical evidence in child protection cases is properly addressed.

Everyone engaged in the Family Justice System is aware of, and understands, the reluctance of suitably qualified doctors to become involved in giving evidence in public law cases under Part IV of the Children Act 1989. Quite apart from all the well known disincentives - the time-consuming nature of the work, the inconvenience of fitting it in with other clinical responsibilities, the need to travel long distances to give evidence, the risk that the case may not have been properly time-tabled in order to accommodate the expert's evidence - comes the risk, high-lighted in GMC v Meadow that experts will be reported to their professional bodies by disaffected parties or their adherents.

Efforts have undoubtedly been made by the profession and by the judiciary to address these problems. The best example, I think, is the Code of Guidance contained in Appendix C to the Protocol for Judicial Case Management in Public Law Children Act Cases (the Protocol) (6) which sets out in considerable detail both the duties imposed on experts and the practicalities of ensuring that the maximum value is extracted from their evidence. As Thorpe LJ again points out in the same passage in his judgment, valuable work was done in this area by the President's Interdisciplinary Committee and is now being done by the recently created Family Justice Council.

Thorpe LJ also makes the point (7) which in my view is a very good one, that when, following the decision of the Criminal Division of the Court of Appeal in R v Cannings (8), the Attorney General announced that there would be a review of care orders made on the premises so severely criticised in that case, only two appeals were brought from care orders made in the Family Division, and both were dismissed (9). The reasons for this are not far to seek. Expert evidence in care proceedings in the Family Division is invariably subjected to rigorous scrutiny by the advocates and the judge. The process is quasi-inquisitorial / investigative, and a relaxation of the strict rules of evidence allows the judge to follow leads and ask questions not permitted in a criminal trial. Furthermore, the most difficult cases are heard either by the highly experienced High Court judges of the Family Division, or by Circuit judges and Recorders, most of whom have been empowered to sit in the High Court, and, all of whom, in addition to their experience as advocates, have been through specific training relating to the hearing of care proceedings.

In addition, of course, the judge rarely reaches a conclusion in care proceedings on the expert evidence alone. The whole picture, which includes findings of fact and assessments of credibility, has to be assessed Finally, the judge in Family Proceedings must give a judgment, explaining the conclusions the court has reached, and the role expert evidence has played in that conclusion. That judgment can be reviewed on appeal. By way of footnote, I observe that the Protocol (10) requires the solicitor instructing the expert to provide feedback to the expert of the outcome of the case and the use made by the court of the expert's opinion. Provision is also made, in appropriate cases, for the court's transcribed judgment to be sent to the expert. It is my personal hope that, following the consultation relating to transparency in Family Proceedings which has recently concluded, judgments in care cases will routinely be given in open court, and thus open to public scrutiny.

All this, and much else, is very valuable, but it is, it seems to me, in the final analysis, essentially palliative. What is required is a more fundamental reform, which properly recognises and implements the real need family justice has for high quality expert medical evidence. It is in this context that I welcome the Report, which seems to me to provide the structure for such a reform.

An article such as this can only accommodate headlines. It cannot argue through the detail of the report. And everything, of course, depends on the government's acceptance of, and willingness both to implement and fund the reform. However, the arguments for doing so seem to me to be extremely strong. Child protection, on any view, is a primary and highly important function of government. The family justice system, which has to deal with many of the most disadvantaged, abused and damaged children, must give those children the service they deserve. The evidential and procedural structures for doing so are all in place. The statutory criteria laid down by section 31 of the Children Act are firmly embedded and well understood. They provide appropriate protection for children and parents alike (11). Every child who is the subject of care proceedings is separately represented by a guardian and a solicitor. This tandem model, and the powers given to the children's guardian by section 42 of the Children Act provide a sound basis for the protection of children against incompetent social work or inappropriate removal from parental care whilst, at the same time, ensuring that their right not to be abused or neglected by their parents is properly protected.

But none of these factors addresses the fundamental problem. None of them seems to me sufficient to resolve the question of supply and demand identified by Thorpe LJ in GMC v Meadow. By contrast, the Report addresses precisely these issues, and it is for this reason in particular that it is, in my view, warmly to be welcomed.

The proposals in the Report are both radical and simple. There are sixteen proposals in the executive summary. They recognise and accommodate both the critical importance of expert evidence in family proceedings, and the deficiencies and disincentives in the current system for its provision.
The Report addresses the fundamental problem of supply and demand by proposing that the provision of medical expert evidence should be delivered as a public service. NHS Organisations (Trusts, Foundation Trusts and Primary Care Trusts) with substantial paediatric, child psychology and psychiatry and / or adult psychology and psychiatry services should provide medical expertise to the family courts through the formation of groups or teams of clinicians within the same specialty or on a multi-disciplinary basis. These teams could include other specialisms such as radiology or ophthalmology as well as clinicians who had retired within the last two years from active clinical practice. The main contract or service level agreement for providing medical expert evidence to the family courts should be held by one or more of such NHS Organisations, and delivered by specialty or multi-disciplinary teams, rather than individual named clinicians. At the same time, the instruction of an expert from outside the area or for one working as a private individual would not be precluded. This latter point strikes me as an important consideration for those who fear that such evidence from a team within an NHS organisation might not be truly independent.

The Report proposes that the funding of medical expert witness work from the NHS would be on the basis of an agreement on the service to be provided, its cost and volume, in line with most NHS activity, to ensure proper workload and workforce planning. The implementation of proposals relating to the NHS would be co-ordinated by Regional Directors of Public Health.

One crucially important recommendation, in my judgment, is that the knowledge and skills needed in all court settings should be taught as part of basic and continuing medical education. This, if effectively implemented, will go a long way towards de-mythologising the family justice system, and removing many of the anxieties felt by expert witnesses about giving evidence in court. The Report also recommends that the quality of instructions to experts should be reviewed by the Law Society, the Academy of Royal Medical Colleges and the GMC. It proposes that the Family Justice Council and relevant government departments should work with the GMC to investigate all possible ways of dealing with complaints to the GMC about the expert evidence given by a doctor, so as to ensure that routes of appeal through the courts are used when they are appropriate. All this is powerful good sense, and very welcome.

My inadequate sketch of a summary cannot, and does not pretend to do justice to the proposals in the Report. No doubt much work will be required on the detail. But the essence of what is being proposed seems to me to be of great value.

I also see the Report in its interdisciplinary context. It is crucial that experts retain their independence, and that their duty to the court (not to the parties, or to the relevant NHS organisation) to advise it to the best of their ability in the interests of the children concerned remains paramount. Any suggestion of danger from a form of institutionalised, uncritical and time-serving advice structure must be negatived by active collaboration between the participants in care proceedings, and in particular between the experts concerned and the court. It will be for the court, exercising its case management powers, to see that the right evidence is obtained, and that the ECHR Article 6 rights of the parties (and particularly the parents of the children concerned) are fully accommodated.

I see the proposals, if fully and properly implemented, as providing a coherent structure for the provision of reliable and high quality expert evidence in family proceedings. By proposing that the concept of child protection within the family justice system should be a part of the medical ethos; and by making the ability of the relevant professionals to participate in child protection within the family justice system part of the syllabus for the training of doctors, the Report, in my judgment, has addressed one of the fundamental problems of obtaining expert evidence in Children Act proceedings. If the proposals are acceptable to the government, as I hope they will be, it will be for the legal and medical professions, and the judiciary, to ensure that they are fully integrated into the family justice system. If they are, many of the problems with which we have been wrestling, and which we have seen as intractable or insoluble, will have been addressed.

In conclusion, therefore, I urge every practitioner from every discipline within the Family Justice System to read the Report. I hope very much, as the CMO says in this introduction, that his proposals will be supported by the majority of clinicians in the specialties needed in the family courts. Equally, I hope very much that they will be supported by all the non-medical disciplines within the Family Justice System.

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Notes

  1. Handed down on 26 October 2006; [2006] EWCA Civ 1390
  2. Published by the Department of Health on 31 October 2006
  3. See, in particular, paragraphs 129 to 158
  4. For a general summary of the role of the expert witness in Family Proceedings, see A Handbook for Expert Witnesses in Children Act Cases; Wall J, Jordans, 2000: see also the classic statements by Cresswell J in The Ikarian Reefer [1993] 2 Lloyds Rep 68 and by Cazalet J in Re R (A Minor) (Experts' Evidence) [1991] 1 FLR 291
  5. Paragraphs 225 to 249
  6. Reported at [2003] 2 FLR 719 at 771-783
  7. Ibid, paragraph 230
  8. [2004] EWCA Crim 01; [2004] 1 WLR 2607
  9. See Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567, [204] 2 FLR 263; and Re U (Re-opening of Appeal) [2005] 2 FLR 444
  10. (Appendix C paragraph 7.1)
  11. See the speech of Lord Nicholls of Birkenhead in Re H (minors) (sexual abuse: standard of proof) [ [1996] AC 563