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O-M (Children) [2009] EWCA Civ 1405

Reasons for dismissal of appeal and renewed application for permission to appeal by parents against orders made in care proceedings concerning a refusal to allow instruction of medical experts.

There were two children subject to the care proceedings: LO, born in 2005 and EM, born in 2008. In 2006, LO had been admitted to hospital and diagnosed with a fracture as a result of which he was temporarily placed with foster parents. However the injuries were found not to be non-accidental but were thought to be a result of a pathological process in his bones though there was no certain diagnosis. In 2008 EM was taken to hospital and found to have fractures and the possibility of EM suffering from a similar syndrome as her sibling was investigated. This involved not only the treating doctor but also referrals to other leading experts in the area. As a result a consensus formed that the injuries to EM were non-accidental. Accordingly the trial judge, though sympathetic to the parents, found that the children were at risk of harm and they were placed in foster care. He also refused requests by the parents to allow further medical evidence.

In this application counsel for the parents argued primarily that, following Ryder J in Oldham, there needed to be independent expert evidence otherwise there was a lacuna in the evidence that prevented a fair hearing. Wall LJ reviews the original judgment and rejects that argument for several reasons including i) this case was distinguished from Oldham, cited by counsel, in that there was a medical consensus on the issue whereas in Oldham that had been no such consensus; ii) there should be no blanket ban on the treating doctor acting as an expert witness as that would deprive the court of badly needed expertise; and iii) most importantly

"If given what has already occurred in the case, the mother wishes there to be  a further medical opinion, there  has to be a good reason for the provision of that opinion......  it is simply not enough for the mother to assert the absence of so called external, non-clinical expert opinion. She has to show that such an opinion can make a contribution to the judge’s task and that such an opinion is properly called for".

The trial judge's approach could therefore not be faulted.

__________________

Neutral Citation Number: [2009] EWCA Civ 1405

Case No: B4/2009/2064/2065
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
a renewed application for permission to appeal against part of an order made by HHJ Waine on 6 July 2009; and an appeal (brought with the permission of the judge) against a further decision made by him on 22 July 2009,

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/12/2009
Before :

LORD JUSTICE THORPE
LORD JUSTICE WALL
and
LORD JUSTICE PATTEN


Between :

 GM (and KM) (Appellant)

 - and - 

 The Local Authority (1st Respondent)

 LO and EM (The Children) (2nd Respondent)


O-M (Children)

(Transcript of the Handed Down Judgment of
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Dafydd Griffiths (instructed by William Bache & Co. - Solicitors) for the Appellant
John Gibson (instructed by Northamptonshire County Council) for the 1st Respondent
Anita Thind (instructed by Wilson Browne – Solicitors) for the 2nd Respondent

Hearing date: 9th December 2009
Judgment
As Approved by the Court

Crown copyright©
 
Lord Justice Wall:

1. This is the judgment of the court. It is also a judgment to which reporting restrictions apply, and is written anonymously. Nothing must, accordingly be published which in any way identifies either of the children concerned in the case.

2. It may be helpful if, at the  outset of the judgment,  we provide a short glossary of the abbreviations which we propose to use throughout:-

3. (1) “The Act” means the Children Act 1989;
    (2) “A&E” means the accident and emergency department of the local hospital;
    (3) “CRMO” means chronic recurrent multifocal osteomyelitis;
    (4) “GOH” means Great Ormond Street Hospital for Children;
    (5) “LCH” means Langerhans Cell Histocytosis;
    (6) “NAI” means non-accidental injury / injuries;
    (7) “OI” means osteogenesis imperfecta;
    (8) “Sheffield” means the Sheffield Children’s NHS Foundation Trust.

Introduction
4. In our judgment, this case raises an important point about the instruction of  expert witnesses in family proceedings relating to children. Accordingly, although we heard the matter on 9 December 2009 and announced our decision at the conclusion of that hearing, we reserved our reasons.

5. GO and KM are respectively the mother and the father of two children, a boy LO born on 1 April 2005 and a girl EM born on 19 May 2008. Both children are the subject of care proceedings under Part IV of the Act pending in the Northampton County Court and being conducted by His Honour Judge Waine (the judge).

6. Before us on 9 December 2009 were (1) a renewed application for permission to appeal against part of an order made by the judge on 6 July 2009; and (2) an appeal (brought with the permission of the judge) against a further decision made by him on 22 July 2009, albeit not perfected until the order drawn on 4 September 2009. In the event, both (1) and (2) raise the same point. In each case, the judge refused the mother’s’ application (which was supported by the father) for permission to instruct, firstly a consultant paediatrician “to provide a paediatric overview” of the case; and, secondly, a geneticist “to provide (an) expert opinion on bone fragility”. In the event, we refused the renewed application and dismissed the appeal. This judgment explains our reason for reaching those conclusions and upholding the judge’s orders.

The background in relation to both children
7. The factual matrix of the case is both complex and worrying,  and although the proceedings are ongoing, we propose to set it out in some detail.

8. LO was born on 1 April 2005. His parents’ case is that he suffered much ill health in the first year of his life. On 13 April 2006, when he was just over a year old, he  was diagnosed as having “a compression fracture of his T11 vertebral body”. An investigation under section 47 of the Act was undertaken and LO was voluntarily accommodated with local authority foster parents. GO and KM were, however, advised by the treating doctors that his injuries were unlikely to have been caused by trauma, and LO was returned to his parents' care in May 2006.

9. The precise medical condition from which LO suffers has not been diagnosed, although on 10 May 2006, a consultant paediatric radiologist at the Birmingham Children’s Hospital described LO’s case as “very interesting” and  expressed the opinion that the radiological findings were suggestive of CRMO, which the consultant considered “the more likely diagnosis”. CRMO (leaving aside the three adjectives) we take to mean an infection of the bones and the bone marrow.

10. No  specific treatment is recommended for LO. On 5 February 2009. an oncologist at GOSH, having examined LO and taken a history from the parents, wrote to the paediatrician at the local hospital, Dr. A: -

I think we have to say that (LO) has an unexplained, pathological multifocal process in his bones. He remains clinically well. I would advise that no intervention is required for (LO) at present other than some general follow up by yourself. I think it is unlikely that it will ever be possible to give specific diagnosis for (LO) and he should be managed pragmatically.

11. The oncologist commented that her radiologist did not think LO’s findings were consistent with OI and – to anticipate for a moment – he thought further testing only appropriate “for the parents’ peace of mind”.

12. EM was born on 19 May 2008. On 17 July 2008, whilst changing her nappy, the father says he heard a “clicking sound” coming from EM’s right hip.  She was taken to A&E, where she was X rayed. No fracture was identified, and she was allowed home.

13. On 19 July 2008 EM was once again taken to A&E at the local hospital by her parents. On this second occasion, she was referred to the paediatric team and admitted. On 21 July 2008  a repeat X ray showed  a spiral fracture of the right proximal femur with displacement of segments. Healing rib fractures were also subsequently identified. Both parents, when seen at the hospital,  denied any form of trauma or physical injury. Dr A and his paediatric colleague Dr O  recorded that EM’s injury “would suggest a high suspicion of (NAI). However, they also agreed that -

In the light of the previous sibling with a rare diagnosis presenting with multiple fractures and also Von Willebrand’s disease (hereditary coagulation abnormality) we must investigate thoroughly for any organic causes that (EM) might have as a cause of her current presentation.

14. It is clear that Dr A was both concerned and puzzled by the condition of the two children. The result, following the discovery of EM’s fractures, was that Dr A referred her (and LO) to a number of specialists around the country. Thus, for example, on 5 August 2008 a consultant in clinical genetics at another hospital took the view, so far as EM was concerned that it would be reasonable in the circumstance to look for mutations in the genes identified as COLIA1 and COLIA2. He advised Dr A to approach Sheffield, which enjoys an international reputation and has Professor N.J. Bishop, who is one of the leading authorities in the United Kingdom on the subject as its Professor of Paediatric Bone Disease. This Dr A duly did.

15. On 14 August 2008 the radiographs taken of both children were reviewed by a consultant paediatric radiologist at GOSH. He wrote to Dr. A, concluding (subject to COLIA1 and  COLIA2 testing) that the findings in LO were those of a pathological condition such as LCH whereas those in EM were consistent with physical child abuse.

16. EM was seen, with her parents, by a consultant paediatric endocrinologist at Sheffield, and on 22 September 2008, he reported to Dr A  in the following terms: -

We have discussed (EM’s) images with one of our paediatric radiologists, (Dr AS) who has expertise in bone disease. He identified some radiological abnormalities that had been identified by you locally, i.e. the two lateral and two posterior rib fractures and the fracture of the right proximal femoral metaphysis. He could not identify any radiological evidence of underlying bone disease, and in the absence of a clear and plausible history of injury to the right femur, the radiological findings strongly suggest (NAI).

Summary and Findings
There are no findings from clinical examination or imagining studies to suggest that EM has either (OI) or any other underlying bone disorder to explain her fractures.

(LO’s) background and radiological findings do present come difficulty. At present we cannot offer any diagnosis with confidence. The evidence does not suggest a diagnosis of (OI) but does not exclude (NAI).

(OI) cannot be excluded by COLIA1 and COLIA2 analysis, but the likelihood of (OI) is reduced if testing is negative. However, as there is not strong clinical evidence fro the diagnosis of (OI), it is not justified on clinical grounds to arrange for the investigation of the COLIA1 and COLIA2 genes in this pair at present. Neither would Professor Bishop or I recommend any further investigation at this stage, on the grounds that there are none that we would reasonably expect to be useful if shedding further light on the situation.

17. We note in parenthesis that on 8 July 2009, having been specifically reminded of the paper referred to below in paragraph 39 of this judgment, the Sheffield consultant paediatric endocrinologist remained of the view that COLIA1 and COLIA2 testing was inappropriate.

18. The parents then put forward an explanation for EM’s injuries. They recalled that LO had projected himself onto EM whilst  she was sleeping on a mattress on the floor. That explanation, however, did not find favour with the doctors. The matter is, perhaps, put most favourably by a consultant paediatric surgeon at GOSH. On 3 November 2008, he expressed the opinion what whilst LO diving on EM whilst she was sleeping on the floor would possibly account for her femoral fracture, although he could not be definite, what was “more worrying” was the rib fractures. “for which there is no obvious cause”.

19. On 26 May 2009 there was a meeting of the doctors involved in the case. Some were present in person: others participated by means of telephone conferencing facilities. We have a transcript of this meeting, albeit that the transcriber encountered considerable difficulties in compiling it, with the consequence that it is, in places, incomplete. We are, however, content to deal with the matter by reference to the judgments given by the judge, and our inability to piece together the medical consensus arising from the meeting is not material.

20. Following the meeting on 26 May 2009, the solicitor instructed by the guardian, who had chaired the meeting, produced a schedule of areas of agreement and disagreement between the doctors. That document was available to the judge, but  unfortunately, there is no copy in our papers.

21. On 13 July 2009, Dr A agreed that COLIA and COLIA2 tests were not warranted for either child.

The judge’s judgments
22. The judge’s first judgment was given on 6 July 2009. The judge refused the mother’s application, made by Mr. Griffiths for a preliminary paediatric overview of the medical evidence and permission to instruct a geneticist / endocrinologist on the bone fragility issue. The judge referred to ECHR Articles 6 and 8 and recognised that it was “extremely unusual for what are described as the treating doctors to be the ones who are going to give expert evidence”. He said, however, that this was not a “normal” case. He referred to the history and to the meeting of the doctors on 26 May. He said:-

If I thought, on the evidence that is so far presented to me, that in some way the referral doctors failed to represent an entirely balanced and objective view of the position and of the papers and of the notes that they had received as well as the questions that they have had to consider, then I would be much more sympathetic to the application that is being made today. On balance, however, I do no think that is the case. I think this is one of these very rare cases where the matter can proceed on the basis of the medical evidence that he have and, in particular, those referral experts.  They (the referrals) are extensive and I am satisfied that the court does have ample evidence upon which it can reach what are undoubtedly very serious decisions.

I think that this does create a level playing field because of the quality of the experts who will be called. I hold out only this olive branch to the parents that, of course, if it becomes apparent that the decision I …… reach today is the wrong one to have reached then, albeit it will mean even greater delay, other experts may yet have to be instructed. Time alone will tell. I will keep the matter open during the threshold hearing. So, on balance, I am going to refuse the application which is made for those two experts.

23. It is to be noted that at this hearing the judge was happy for further questions to be put to the doctors in the case, and that this was duly done.

24. The mother sought this court’s permission to appeal against the order refusing her permission to obtain expert opinions. The papers were placed before Wall LJ  as the single Lord Justice on 14 July. He did not have a transcript of the judge’s judgment of 6 July, although he did have the somewhat truncated transcript of the doctors’ meeting on 26 May 2009. His view was that the application for permission to appeal was premature and that a hearing fixed by the judge for  21 July 2009 at which he was to determine whether or not the threshold criteria under section 31 of the Act were satisfied,  should proceed. Depending on the outcome, the mother would then be able to renew her application in the light of the judge’s judgment.

25. In the event, what happened was that the judge heard all the medical evidence between 21 and 24 July 2009, and at the conclusion of that part of the hearing delivered an extempore judgment in which he repeated his refusal to permit the mother to instruct experts. He then proceeded to hear evidence from the parents on the factual as opposed to the medical aspects of the causation of the injuries to EM. He delivered judgment on this aspect of  the matter on 4 September 2009.

26. The judge gave the mother permission to appeal against his second  (actually his third)  refusal to allow her to obtain additional medical evidence, and it is against the decision of 24 July 2009 that the appeal is brought. Strictly speaking, the mother’s appellant’s notice also challenges the findings of fact made by the judge and set out in the judgment which he gave on 4 September 2009. In the event, however, the mother’s appeal has focused on the question of expert evidence, and this judgment does not address the judge’s finding that the threshold  criteria under section 31 of the Act were satisfied, or the fact that the judge found himself “driven to the inexorable conclusion that the injuries suffered by (EM) were (NAI) and that there is no arguable reason to suppose that she has any underlying and as yet undiagnosed bone disorder or condition which might make her more vulnerable to fractures”.

27. The judgment of 4 September 2009 is, however, reflective of the judge’s overall thinking and it would, in our judgment, be artificial in the extreme to ignore it in coming to our conclusions on this appeal: indeed, it was in his order of 4 September 2009 that the judge both gave the parents permission to appeal against the decision contained in the judgment of 24 July 2008 and extended their time for doing so.

28. It should perhaps also be noted that, although the local authority has taken care proceedings in respect of both children, it does not intend, in these proceedings, to re-open the question of LO’s fractures. In other words, as we understand it, the local authority’s case is that the threshold criteria are met as against both parents in relation to EM (actual significant harm caused by NAI) and the very fact that  this is so means that the threshold criteria are also met in relation to LO (the likelihood of significant harm to him) based on the actual harm suffered by EM. We are told by counsel for the local authority that the tentative care plan for the two children is that they should be adopted outside the family. Both children, we were told, were currently accommodated with foster parents. We express no view, of course,  on the local authority’s proposed outcome, which will be a matter for the judge at the final hearing fixed for March 2010.  We note, however, that the stakes for both the children and their parents could not be higher.

The judgments given by the judge on 24 July and 4 September 2009
29. The first of these judgments (which, it will be recalled, was given immediately after hearing the medical evidence) sets out the judge’s reasons for refusing the parents’ application. Having set out the history of both children,  the judge deals with the position following the discovery of EM’s fractures:-

13. The concerns that that stage were that those fractures in such a young baby might be indicative of (NAI). I do not think anybody could criticise the doctors for undoubtedly considering that issue, but uppermost in their mind was also the fact that they were aware of an underlying problem with (LO). Inevitably they wanted to examine the possibility that (EM) might be suffering from some condition equivalent to that of (LO), or indeed some other condition, which might have made her more vulnerable to bony trauma than would be the case in a normal child with a healthy bone structure.

14. As a result of that, Dr (A) who was the leading paediatrician at (the local) hospital, took advice from a significant number of other doctors who I think on any basis would be considered experts within their field.

30. The judge then goes on to identify the doctors whom Dr A consulted.  They included the paediatric radiologist at GOSH, and a consultant orthopaedic surgeon (also at GOSH) specialising in  paediatrics. He also describes the reference to Sheffield, and the references to specialists at other hospitals, including a consultant clinical geneticist and another consultant orthopaedic surgeon. He refers to a consultant oncologist at GOSH and states:-

15 It is difficult to imagine a case in which perhaps more expertise could have been called in by the original clinicians who themselves covered the specialities of paediatrics, obstetrics and gynaecology, and also radiology, and all of those matters were considered.

31. In paragraph 17 of the judgment, the judge summarises the medical evidence by saying that none of the doctors, from a clinical perspective, and allowing for their different specialities can -

make a link between the condition, whatever it may be, from which LO suffers, and any indication that EM suffers from the same condition. Innumerable tests have been carried out. The doctors are not, from a clinical point of view, recommending any further tests, but nevertheless I think each and every one of them has said if the court deems it appropriate, they certainly would not object  to any further tests being carried out which the court deemed to be reasonable and need to reach the court’s decision.

32. The judge then takes up a theme which he is later to repeat. He says this:

18. I have to say that their desire to approach this matter in the fairest possible way to the parents, and in the best interests of (EM) has been absolutely obvious throughout. I have not for a single moment gained any impression that any of these doctors have been keen to find (NAI) in this case. Indeed, if anything, they have gone out of their way to try and establish that this is a case of pure accident, or some other explanation which would rule out (NAI).

That is the position we are at the moment.

33. Having then dealt with the history of the proceedings, the judge refers to the meeting of the doctors and the points of agreement reached at the meeting.

23. I think it is important that those points of agreement should be read out.  They are as follows:- (1) It is unlikely that the rib fractures were caused at the birth by the caesarean section forceps delivery – which was one of the points being contended by the parents; (2) the fall on EM by LO was unlikely to have caused her leg fracture; (3) the amount of force needed to cause the fractures would have been greater than that used in general handling of a child, and that any carer for a child would realise that they had used such force on a child; (4) there is no evidence that EM suffers from any bony conditions such as (OI); (5) there was no clinical need for COLIA 1 and COLIA 2 tests to be performed on EM; (6) it was more likely than not that EM’s rib fractures were non-accidental, and a similar view about the leg fracture appeared at number (7).  That was the view, as I say, of all of those experts meeting together.

34. The judge then deals with the hearing on 4 June 2009

25. I turned down both of those applications and undoubtedly turned down the sanction for the payment for the COLIA1 and COLIA2 tests.  I did that because in my view (the consultant paediatric endocrinologist at Sheffield) assisted by Professor Bishop, had made it absolutely clear that they did not consider that such tests were required.  Given that they were two of the leading experts in this country I considered that that was an appropriate decision to make.  I also felt that my view was supported by the fact that there was no other independent indication that such tests were required, so that the totality of the evidence veered away from the need for such further tests.  I also bore in mind on that occasion the case of Re M (Care Proceedings: Best Evidence) [2007] EWCA Civ. 589 which seemed to support the case management approach that I was taking based on the evidence before me.

35. The judge then deals with the first application to this court. Having done so , he identifies the authorities to which he had been referred and continues:-

33. Can I make it absolutely clear that I accept, of course, that there is in every case an important distinction to be drawn between the clinical experts and those who are instructed in a proper fashion as independent experts within care proceedings, or whatever court proceedings they may happen to be.  That is the starting point. Secondly, we have no such independent experts appointed in this case.  I also accept, of course, the need for fairness and the Article 6 rights of the parents to be respected.  Also if I thought there was a lacuna in the evidence that would be an important factor which would inevitably and inexorably take me towards the necessity for experts to be appointed.

34. But this case, in my view, is a singularly odd one.  What makes it particularly odd is the significant amount of medical evidence which has been garnered from referral hospitals prior to the involvement of the local authority.  It is difficult to imagine greater expertise than has already been obtained.  The views of those experts were obtained not by the local authority but by Dr A carrying out a full investigative role at  (the local)  Hospital.  Additionally, there was this meeting of the various doctors which was conducted and set up in a way which was entirely compatible with the wishes of all of the parties and in my view was undoubtedly within protocol and within the rules.  So this is not a typical case by any means.  It is also a case where a wide variety of doctors of all relevant specialties have been involved at one time or another.  It is quite unlike the Oldham case in particular where one senior consultant neuro-radiologist had in a sense taken a lead which had been supported by the other doctors.  Ultimately the view was taken that neuro-radiological experts should be appointed and they came up with a wholly different view to that of the original neuro-radiologist.  Inevitably, where the case is proceeding on the basis of perhaps one crucial medical expert, the argument put forward by the parents would be that much stronger.  This is not such a case, as I say, because of the wide disposition of the experts involved.

35. I do not wish for a single moment to go behind the general principle of the need for independent experts, but each case has to be looked at on its own facts and on its own situation, and in my view to put the matter back now for further expert evidence would fly in the face of another factor which I have to take into consideration, namely the overall issue of delay.  It has been alluded to by the parties.  It is of particular significance in this case because of the inevitable late application by the local authority for care proceedings, some six months after the original injuries were diagnosed.  So we are now already a year away from that date.  I know it was part of the matters put before me on the last occasion that LO is clearly finding the separation from his parents extremely difficult, so anything which might increase that difficulty is something that I would be anxious to avoid if I possibly can, and I do have to bear in mind the need for a fair trial so far as the children are also concerned.

36. Having then rejected any suggestion that there has been a breach of the parents’ rights under ECHR Article 6 or that there is a “lacuna” in the evidence, the judge continues:-

38. Like everyone else in this case, I have every sympathy for the concerns and the predicament of the parents in not knowing absolutely whether (EM) does or does not suffer from any underlying bony problem.   If there was the slightest indication that further experts, or further tests, might point me in the right direction, it is an opportunity that I would seize upon.  I do not enjoy the responsibility for having to reach this decision.  I am naturally content that the local authority and the guardian are supporting, in effect, the approach that I am taking.  I know equally that it has been a matter of anxious consideration by both of them.  They would not have reached such a view unless they felt that overall it was appropriate.

39. So I take the view that the case will have to proceed on the basis of the evidence that is before the court.

The judge’s judgment given on 4 September 2009
37. The parents do not, so far as we are aware, concede that they have been responsible for any of EM’s injuries. As the welfare stage of the proceedings is outstanding, we do not propose to go through the judgment of 4 September 2009 dealing with the factual aspects of the case.  It is, we think, sufficient to record that the attitude of the judge towards the parents remains sympathetic, notwithstanding the findings which he has felt constrained to make against them.

38. As the judge says, the case will now proceed to the welfare stage, “subject to any outstanding appeals and the appropriateness of the medical evidence”. This is a matter to which we will return at the end of this judgment. Suffice it for present purposes for us to record that in the concluding paragraph of his judgment on 4 September 2009, the judge aptly recorded his feelings about the case: -

59. Subject to any outstanding appeals and the appropriateness of the medical evidence, this case will now proceed to the second stage, namely the welfare considerations.  Experts have already been appointed and await instructions, as indeed no doubt they are awaiting this judgment.  There will also need to be further practical directions for completing the case, as well as possible interim care orders which I know the local authority are now seeking.

60. I can only repeat my request to the parents to be open with the experts about what happened.  I want to make it clear that I have absolutely no wish to remove these children permanently from these parents, but they are in a particularly difficult position because it is known that (LO) has a vulnerable bone condition.  This makes returning him to the parents even more problematic because it increases the risks of further trauma to him.  I would not want to split these children if that can be avoided, and hence the particular need for the most careful assessment of risk in this case, given (LO)’s difficulties.  I would finally ask that the doctors who attended this court should be informed of the decision, either by the local authority or by the children’s solicitor.

The argument for the appellant
39. For the mother, Mr. Dafydd Griffiths took us to an article in a medical journal entitled Testing for (OI) in cases of (NAI)  by three American doctors  in 2002. This argued that laboratory testing for OI and other genetic predispositions for fractures in infants where NAI was suspected was “a valuable adjunct in discerning the basis for fractures”, and that such testing “may identify a small group of children with previously undiagnosed OI”. These are  the COLIA1 and COLIA2 tests to which reference has been made.

40. Mr. Griffiths submitted that from the date of the  Report of the inquiry in Child Abuse in Cleveland  in 1987 (Cm 412) it had been recognised that there was a need for a clear distinction to be drawn between treating doctors and those advising the court. He cited dicta of Thorpe LJ in Re B (Sexual Abuse: Expert’s Report [2000] 1 FLR 871 at 873 (Re B) and argued that in the instant case clinicians were being inappropriately given the status of court appointed experts. He also relied on a number of other cases, including  the decision of this court and of Ryder J in the Oldham case: [2005] EWCA Civ 1247; [2006] 1 FLR 543 and [2007] EWHC 136 (Fam; [2007] 2 FLR 597 respectively. He submitted that expert assistance was needed in the instant case because – at present – there was no “independent” expert evidence before the court. The children’s mother had been denied the prospect of instructing  independent experts: there was thus a lacuna in the evidence and without that lacuna being filled, the children’s mother would be denied a fair hearing.

41. Mr. Griffiths thus argued for the ability to instruct a paediatrician to carry out a “paediatric overview” of the work of the clinicians in the case, and for a geneticist, Professor Patton, to provide an independent opinion on EM’s condition and the likelihood of a connection between EM and LO. Professor Patton would also advise on the need for COLIA1 and COLIA2 testing.

42. Mr. Griffiths developed his submissions, both in his skeleton argument and orally. We feel however, that we have sufficiently encapsulated his argument in the preceding paragraphs.

Discussion
43.  With respect of Mr. Griffiths, we take the view that his submissions demonstrate a number of misunderstandings about the true nature and purpose of expert evidence in family proceedings relating to children.

44. In the first place, as Wall LJ explained in the Oldham case ([2006] 1 FLR 543, 552 at paragraph 46:-

Whilst there is a clear distinction to be drawn between the functions of treating clinicians and expert witnesses, I agree with Miss Singleton (counsel for the local authority) that the fact that Dr A had had some clinical involvement by reason of his initial review of the MRI scan did not, of itself, affect his capacity to act as an expert witness, I also agree with Miss Singleton that a blanket approach which precludes treating clinicians from becoming jointly instructed witnesses in respect of children they have in fact treated runs the risk of the court being deprived of expertise and excellence in those cases where children have been fortunate enough to have encountered clinically one of the diminishing number of doctors who are also ready willing and able to participate in the forensic process.  At the same time, however, the fact that an important opinion is being expressed by an expert who had had clinical involvement seem to me to provide an additional argument for a second opinion, if one is called for by the parents.

45. Secondly, we think it important to recall the context in which Thorpe LJ dealt with the distinction between the clinician and the court appointed expert. In Re B (Sexual abuse: Expert’s Report [2000] 1 FLR 871 (Re B), the psychiatrist whose report was before the judge was the doctor treating the child for sexual abuse which that doctor believed had occurred: she was engaged in a therapeutic relationship with the child: her position was thus wholly incompatible with the issue before the court,  which was whether or not the child had been sexually abused.  Clearly, a clinician treating a child for sexual abuse which the clinician believes has occurred is incapable of giving an objective opinion about whether or not the child has been abused. It was in this context that Thorpe LJ stated:

46. It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert to report.  If the mother’s solicitors wished to meet the application of 15 August 1999 by asserting that F had been sexually abused on one or both of the unsupervised contacts in October 1998, it was surely incumbent upon them to put before the judge the outcome of the investigative interviews, and probably conducted in accordance with the Memorandum of Good Practice on Video-Recorded Interviews with Child Witnesses for Criminal Proceedings (Home Office, 1992) (the Memorandum of Good Practice), probably conducted by an experienced police officer and an experienced social worker jointly.  The failure to adduce that evidence in response to the application of 15 August seems to me to be curious.

11. Secondly, the mother’s solicitors should have seen that it was quite impossible for Dr Bazeley-White to make any forensic contribution to the pending litigation.  It was an error of judgment on their part to have instructed her to report.  The letter that they wrote seeking a report ignores all guidance, which has been bountifully supplied by experienced judges of the Family Division, as to the importance of ensuring that any instructions for a forensic report are impartial and, wherever possible, are joint and agreed with the other side.  A unilateral appeal to an expert for a partial report is something which should have disappeared from the litigation scene many years ago.

12. I do not criticise Dr Bazeley-White for conducting an interview with F that immediately introduced anatomically correct dolls and then proceeded to a string of leading questions.  Obviously, those characteristics are in clear breach of the guidelines that have been available to consultants, at least since the publication of the Report of the Inquiry into Child Abuse in Cleveland 1987 (1988) (Cm 412) (the Cleveland Report).  But her function was therapeutic and it may be that in her professional judgment that is what the child’s therapy required.  Where I criticise Dr Bazeley-White was in ever accepting instructions to prepare a forensic report.  She should have had the experience and the judgment to perceive that she was disqualified from making any forensic contribution by the nature of her medical reference and by the nature of the work that she had done in response to that reference.

13. The judge’s discretionary conclusion that the deficiencies in Dr Bazeley-White’s contribution could be remedied by some sort of fresh start on joint instructions is simply unrealistic.  He should have perceived that flaws as profound as this are simply incapable of rectification.  His order was plainly wrong and must be set aside.

47. As will be immediately apparent, none of the considerations identified in Re B applies in the instant case.

48. Thirdly, in our judgment, the differences between the Oldham case and the instant case are clear. In the former, the circuit judge thought there was a medical consensus. In fact, there was no such thing. What had happened was that all the treating doctors in the case deferred to Dr. X who alone, as they saw it,  had the expertise to interpret the particular scans. However, when the parents obtained a second opinion from Dr. Y, it was immediately apparent; (1) that there was no true consensus and (2) that Dr. Y, with a similar degree of expertise to Dr X, took a different view. None of that applies in the instant case.

49. Fourthly, we do think it important in this context to keep in mind what the judge correctly described as the medical evidence  needing “ to be looked at in terms of the court proceeding”. There is a clear distinction to be drawn between a medical decision as to what is clinically required for a child’s treatment and  a forensic decision about what is necessary to ensure the proper determination of an issue: - see the decision of this court in  Re M (Care Proceedings: Best Evidence) [2007] EWCA Civ 589, [2007] 2 FLR 2006 (Re M), to which the judge aptly makes reference in the judgment given on 6 July, COLIA1 and COLIA2 testing are only relevant if they assist the judge in his determination of the forensic issues.

50. Re M  is particularly apt because it involved the very expert whom the mother wishes to instruct in the instant case. In that case the expert had written:-

While the probability of a positive result here is very small I believe it is advisable to carry out genetic testing as the level of proof must be as high as possible and having raised the possibility of testing in the cross-examination it would be wrong to dismiss testing on grounds of costs or inconvenience alone.

51. This sentence was criticised both by the trial judge and in this court. It is not for the expert to advise on the forensic justification for a test.

52. A consideration of Re M leads us to our fifth, final and most important point. If given what has already occurred in the case, the mother wishes there to be  a further medical opinion, there  has to be a good reason for the provision of that opinion.  In other words, the mother has to persuade the judge that Professor Patton has a contribution to make to the case.

53. There are, of course, cases in which a second expert opinion (which may, of course, concur with the first) is necessary to enable a process not only to be fair but to be seen to be fair.  Such an opinion – if obtained by parents accused of NAI  - may well be conclusive of the issue and thus save both time and costs. But in each case it must be for the judge to decide that such an opinion is properly called for. In the instant case  the judge’s view was that the medical evidence was extensive and had, effectively, boxed the compass.  Furthermore, although it had been generated by the clinicians, it had spread much wider, and embraced external expertise such as that demonstrated by Sheffield. In these circumstances, it seems to us, it is for the judge to decide whether enough is enough, or whether more is called for. But if more is called for, there must be good reason for it.

54. The judge had nothing from Professor Patton, and therefore no basis upon which to say that Professor Patton could contribute to the case. On the facts of this case it is simply not enough for the mother to assert the absence of so called external, non-clinical expert opinion. She has to show that such an opinion can make a contribution to the judge’s task and that such an opinion is properly called for.

55. As the judge himself made clear, it is not too late for the parents to apply for further evidence, and for permission to instruct Professor Patton. But if they are to do so, they need to be in a position to persuade the judge Professor Patton has something to  contribute to the case.

56. Application for expert evidence are governed by the President’s Practice Direction: of 1 April 2008 entitled  Experts in Family Proceeding relating to Children [2009] 2 FLR 1383. Paragraph 4.1 of that Direction identifies the preliminary enquiries of the expert. In our judgment, those advocating additional expert evidence have to ask both themselves and the expert the question: what can the additional doctor contribute to the case?  As we have already made clear, it is not enough in our judgment  simply to say – as, we think, Mr. Griffiths was submitting – that there is  no “independent” expert evidence before the court; therefore the parents must be permitted to commission such evidence.

57. In our judgment, Mr. Griffiths has not even begun to make out the case for a “paediatric overview”. Whether or not he has a case for Professor Patton’s involvement remains to be seen. On any view, he has a sympathetic tribunal.

58. In our judgment, the judge’s approach simply cannot be faulted. On the material available to him, he was plainly right to dismiss the mother’s applications.

59. These, accordingly are the reasons for the course we took on 9 December.