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M-M (A Child) [2007] EWCA Civ 589

Appeal by parents against refusal to allow evidence from an expert on osteogenesis imperfecta (a condition that makes bones break easily) after allegations that they had physically harmed their child. Appeal dismissed.

In his judgment, Thorpe LJ firmly upheld the decision of the trial judge on the grounds that a judge has a wide discretion on case management decisions and that he had clearly decided that "enough was enough" after hearing other expert evidence that the chances of the child having the condition were minimal. The procedure would be unnecessarily costly and the judge had been wise to refuse the application.


Case No: B4/2007/0915
Neutral Citation Number: [2007] EWCA Civ 589

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 16th May 2007


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(DAR Transcript of
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Miss Wiley (instructed by Messrs Fitzhugh Gates) appeared on behalf of the Appellant.

Ms Bishop appeared on behalf of the Respondent local authority.

Ms J Venters QC appeared on behalf of the Respondent guardian.

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(As Approved by the Court)
Lord Justice Thorpe:

1. This is a familiar enough case in which a very young baby is found on x-ray examination in the paediatric department of a local hospital to have fractures. In this instance, a rare fracture of the ulna and a common place tibial fracture. As is so often the case, the parents are distraught and have no seeming explanation nor can they seemingly recall any expression of the extreme pain that a child inevitably experiences at the moment of fracture. So, there is a deep mystery and medical experts are introduced to try and resolve the vitally important issue of causation.

2. All this then develops into a preliminary fact-finding hearing which is conducted by HHJ Coates in the Brighton County Court. The hearing is due to get off the mark on 19 March but there is some question as to whether the grandparents, that is to say the two grandmothers, should be made parties, being within a pool of possible perpetrators, and the case is adjourned on 20 March.

3. On 30 March Miss Wiley, who has presented the mother's case vigorously throughout, reintroduces the possibility of a very rare condition, osteogenesis imperfecta, which might incline the bones of the child to break abnormally easily. She had cross examined two of the experts, Dr Lloyd and Dr Chapman, in that territory and on 30 March she applied successfully to HHJ Coates for leave for Professor Patton, a leading expert on genetics and on osteogenesis imperfecta, to carry out an examination and consultation when it seems that he was fortuitously in the area.

4. The examination duly took place and he reported in these terms:

"I did not find evidence of a family history of osteogenesis imperfecta from my interview with M's parents nor did I find any additional clinical signs of osteogenesis imperfecta on examination. In addition Dr Chapman states there was no radiological evidence for any underlying condition that would predispose to fractures. On the basis of this I believe a diagnosis of osteogenesis imperfecta is extremely unlikely in M."

5. However he did go on to add, in a passage that the judge was later to criticise:

"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."

6. So, it is not surprising, with that encouragement, that on 30 April the judge had an application from Miss Wiley for permission to refer the case to Professor Bishop, who would, from a sample of M's blood, carry out a test which now can be completed in six to eight weeks and now costs some £5,000. Apparently the test used to take much longer and cost much more.

7. The judge made the well-founded point that Dr Patton had exceeded his brief in giving his own view as to the forensic justification for a test. She then referred to the arguments of the parties. Miss Wiley essentially submitted that a decision of such grave consequence should not be taken without the best available evidence. The local authority opposed the application, the guardian ultimately came round to oppose and the judge concluded by saying:

"In forming my view I must look at the case as widely as possible and the very strenuous efforts of the mother to get osteogenesis imperfecta to the forefront of everybody's mind by considering this case there is no justification for putting the child through the test given the conclusions by Dr Patton before he goes on to give an opinion about what is best left to the court."

8. The judge did, somewhat unusually, grant permission to appeal and hence today we have heard Miss Wiley's well-presented argument in support of the case for referral to Professor Bishop. She is opposed by the local authority, for whom Miss Bishop appears; by the guardian, represented by Miss Venters QC; and by written submissions in opposition from the second defendant father and from the fourth respondent paternal grandmother.

9. The position of the maternal grandmother is unclear. She has until recently been in person; both the local authority and the guardian have sought to ascertain her view on this appeal but without success. We do know that she has recently instructed solicitors. There is a rumour that she may have faxed a position statement to the court but nothing has come to hand. We will therefore assume that she has either a neutral or an unascertained position.

10. Miss Wiley has complained that the judge in her appropriately brief judgment did not do full justice to the argument that she had advanced. She says that she advanced below the argument that she presents to this court in her grounds of appeal. However, it seems to me that her first ground of appeal is essentially the submission that the judge recorded, namely that the very best evidence was essentially required for the determination of such an important issue.

11. Her second ground of appeal was to the effect that where parents deny abuse it is unreasonable for the court to refuse to allow the test. That proposition was obviously unsustainable and was revised to the submission that, in the circumstances of this particular case, the judge unreasonably refused the test. Then it is said that the judge erred in substituting her view for that of Professor Patton and Dr Lloyd, and that the judge finally erred in relying on the absence of aftermath or pain as one of her reasons to depart from Professor Patton's recommendation.

12. I will deal with these grounds comprehensively, since all of them in the end amount to a challenge to the exercise of judicial discretion. It does seem to me very important to draw a clear boundary between a medical decision as to what was clinically required in order to inform the future treatment of the child and a forensic decision as to what was necessary to ensure the proper determination of the issue in the causation hearing. Clearly the medical decision is for the doctors, and equally clearly the forensic decision is a case management decision for the judge.

13. In the present case, the doctors were not expressing a medical opinion on clinical grounds and insofar as they ventured an opinion on what was forensically required, they were trespassing onto judicial territory. The discretion of the judge in taking case management decisions is particularly generous. The judge here clearly decided that enough was enough, and enough had been achieved in Professor Patton's considered view that in this particular child osteogenesis imperfecta was extremely unlikely. The judge clearly placed considerable emphasis on the fact that the expensive blood test which was urged upon her had been demonstrated to establish osteogenesis imperfecta in cases where there were no other clinical signs in only one percent of three hundred cases researched. The judge also attached weight to the fact that testing for osteogenesis imperfecta is only 90 percent accurate.

14. So this seems to me not only a permissible decision but a wise decision. There has to be a point at which the garnering of evidence is sufficiently full and thorough to enable the court to arrive at a conclusion, even on the elevated balance of probabilities standard of proof. It seems to me that Miss Wiley's argument comes close to saying that no stone must be left unturned. I do not accept that. The value to be derived from submitting this child to what is an invasive investigation was too small to justify the considerable cost both in cash and in time. I have no hesitation at all in upholding the judge's conclusion.

Lord Justice Gage:
15. I agree.

Lord Justice Toulson:
16. I also agree.

Order: Application refused.