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Challenging Interim Threshold

Anna McKenna QC, 1 King’s Bench Walk, Emily Boardman, partner, Boardman, Hawkins & Osborne LLP and Anna Sutcliffe, barrister, 1 King’s Bench Walk consider the circumstances when it may be appropriate to challenge interim threshold findings in an alleged NAI case without waiting for evidence from a single joint expert.













Anna McKenna QC
, 1 King's Bench Walk, Emily Boardman, partner, Boardman, Hawkins & Osborne LLP and Anna Sutcliffe, barrister, 1 King's Bench Walk
(Anna McKenna QC and Emily Boardman acted for Mr C, the second respondent father in Re C (Permission to withdraw: Medical evidence: Interim threshold not crossed) [2018] EWFC B37)

The recent judgment of Re C (Permission to withdraw: Medical evidence: Interim threshold not crossed) [2018] EWFC B37, raises a number of issues in relation to when it is appropriate to challenge interim threshold in a non-accidental injury (NAI) case without waiting for the instruction of a single joint expert(s) and how to go about doing so. Often it is assumed that expert evidence is needed before any successful challenge can be mounted – but is that always the case?


Background

The case involved a young baby who presented with unexplained markings on her face. When the child was 10 days old, the mother pointed out "purple spots" to the health visitor who felt that they were "a superficial blood vessel on the child's forehead".

Approximately 8 weeks later, the health visitor visited again and noticed "a small, roughly pea-sized faint/ purple yellow mark" on the child's left cheek. An appointment was made to see a GP on that day who also considered the mark to be a superficial blood vessel and suggested that the child come back for a review in a week's time.

The following day, the mother told the health visitor there was another mark on the child's face. The mother took a photograph on her phone. The health visitor came round the day after the photograph was taken and noted a further purplish/yellow mark on the child's right cheek and a very small mark under her chin.

One week after the first GP appointment, the child was seen by a second GP. She did not have any marks at all on examination but the second GP looked at the photographs taken by the mother and felt that they showed "quite clear and different bruises". The GP made a referral to a paediatric radiologist, noting in her referral that there was "nothing in the history to suggest that these are traumatic bruises".

The child was seen at the hospital 3 days later. Again there were no marks on examination but the consultant paediatrician looked at the photographs taken by the mother and concluded that the marks in the pictures were consistent with bruises. The child remained in hospital overnight before being discharged to her parents the following day. She was seen again after a further 3 days, by which time the consultant radiologist had raised concerns that the marks represented bruising which, on a non-mobile baby, were indicative of non-accidental injury.

The Local Authority made an application for an Emergency Protection Order the following day on the basis of bruising to a non-mobile infant. The application was not opposed by the parents and the mother and child were placed in a mother and baby placement.

A week later an Interim Care Order was granted on the basis that the mother and child would move to live with the maternal grandmother and would be supervised by her. The father also moved to live at the property shortly thereafter. The court found the interim threshold to have been crossed largely due to the report from the consultant paediatrician and the evidence that the clinical safeguarding team at the hospital had, as a result of that report, identified a risk of non-accidental injury. They had in the main relied entirely on the photographs taken by the mother on her smart phone.

Following the making of the Interim Care Order, the child was taken to hospital with new marks on her face on a further 3 occasions. The clinicians who examined her on each occasion concluded that the marks represented blood vessels visible through the skin and there was no cause for concern.

In light of the further trips to hospital, and the universally positive observations of the parents' interactions with the child, the parents invited the court to make a determination that the interim threshold was not crossed at this early stage rather than waiting for the instruction of experts.

A hearing to determine the issue of interim threshold was listed 7 weeks after the making of the initial interim care order. Prior to the hearing the various clinicians involved in the case held a meeting, a note of which was available to the court. 

After hearing evidence from the first GP to examine the child (who had not identified any bruising), and the consultant paediatrician (who had seen only photographs of the marks), the Local Authority sought permission to withdraw their application, correctly anticipating that the court would not be able to find on the balance of probabilities that the marks on the child's face were bruises. This application was granted.

In the judgment, the court referred to the following as factors which weighed against a finding that the marks on the child were bruises, notwithstanding the consultant paediatrician's contrary opinion which was maintained by him in his evidence:

a. The court had a number of printed images of inconsistent quality and each showing a very different picture. It appeared that there had been no consistent means of retaining the image and so the doctors did not have a single set of images to look at – some were emailed or scanned whilst some were printed copies. It was not clear that all the clinicians were talking about the same image;

b. In any event the photographs were not of a quality suitable for a clinical diagnosis.

c. There was confusion over which clinicians had seen which medical notes. In particular, it did not appear that the conclusions of the health visitor and the initial GP were followed through;

d. No clinician who had seen the marks in person (rather than in a photograph) had ever identified bruising;

e. There were no concerns about either parent's parenting abilities;

f. The photographs of the marks which appeared after the granting of the Interim Care Order appeared to be very similar to those taken before proceedings were issued. If these later marks could not be identified as bruises following full examinations by clinicians, it could not be said that the earlier ones were.

Undoubtedly the outcome of this case will have been an enormous relief for the parents. However, the impact of the disruption to their lives in the meantime cannot be overstated and this would only have been magnified had the decision been taken to wait for the instruction of a single joint expert(s) before challenging threshold. In this case the impact was lessened somewhat by the fact that the maternal grandmother was an approved foster carer and so it took less time for an assessment of her to be approved – not all parents will be so fortunate.

The purpose of this article is to examine how to identify those cases in which an early challenge to threshold might be successful, and how to pursue this.


When is an early challenge to interim threshold appropriate?
The usual approach for those advising parents in circumstances where non-accidental injury is alleged is one of caution until such time as an independent expert can be appointed to assess the child's injuries. In many cases, particularly those where there is no other evidence available beyond the initial presentation at hospital, this is likely to be the best course of action despite the inevitable delay that will ensue.

However, given the scale of disruption which an interim care order can cause to a family, it is important to consider whether there may be other evidence available at an early stage which supports the parents' account and which may justify challenging the Local Authority to prove their case at this point.

In Re C this other evidence was available in the form of notes from the Health Visitor and the GP, both of whom had seen the child during the period when the marks presented themselves, and each of whom had performed their own examinations. None of the clinicians who had seen the marks in person had identified any bruising. The parents were able to tell their lawyers about this evidence from the outset, enabling them to pull together enough to justify an early challenge to interim threshold. There was no need for an independently appointed expert at this stage because the issue for the court was not "how could the bruises have been caused?" but rather a factual dispute between the clinicians as to whether there was any bruising at all.

A further recent example of a case in which interim threshold was successfully challenged before the instruction of experts is Re G (interim threshold) [2017] EWFC B34. Again, this was a case in which the child had been seen by a number of clinicians in the run up to proceedings being issued, all of whom reported that the child appeared to bruise easily. This evidence was ultimately instrumental in the court finding that interim threshold had not been met.

The key factor in both of these cases was the availability of evidence from other treating clinicians in the lead up to the referral, who had each reached differing conclusions in relation to the child's presentation. In cases where there is a chronology of this type, from the outset practitioners need to be thinking about whether there is evidence which would justify an early challenge to interim threshold. If this can be done without the need for the delay incurred in instructing a single joint expert(s) then it should be. It is not always going to be the case that an appointed expert is in a better position to make a judgment to those 'on the ground' and treating the child. Valuable time in the child's life can be protected and the inevitability of separation pending receipt of the expert opinion, potentially avoided.


What steps to take?

It is important to establish a clear timeline of events leading up to the child protection referral, and in particular any occasions on which the child was examined by other professionals. Within that timeline, practitioners then need to consider whether there is likely to be any independent evidence available which may support an alternative explanation for the child's injuries/presentation. It will be essential to examine all manner of sources for such evidence, familial, social and medical.

Once the timeline has been established and it appears that there may be evidence which could support a challenge to interim threshold, the next step is obtaining this evidence as quickly as possible. If the parent has parental responsibility they do not need to wait for permission from the court to obtain medical records/notes in relation to the child – these should be made available to them on request. However, in practice most GP surgeries will provide records much quicker if they are requested by a Local Authority. 

It is important to remember that the treating clinicians are just that. They are not experts in the case. Therefore, whilst their evidence is likely to be of crucial importance at the interim stage, it should be borne in mind that when making their assessments they were doing so as a treating clinician rather than with a view to providing an expert opinion within proceedings.

Once the evidence has been obtained, and if it supports the parents' case, a listing for a contested hearing in respect of interim threshold should be sought as soon as possible. Consideration will need to be given as to which of the treating clinicians may be required to give evidence at that hearing.

In cases where there are a number of different treating clinicians whose evidence is relevant (e.g. health visitor, GP, consultant etc.) it is also important to establish whether they have, in fact, all seen each other's notes, and if not then to establish exactly what has been seen by whom. It should not to be overlooked that responsibility for this also falls to the applicant local authority as it is this evidence on which they will seek to rely and the strength and foundation of that evidence needs to be examined fully and fairly at an early stage and on an ongoing basis. Those acting for parents will need to be on 'red alert' as to whether this is happening.

In Re C it appears that this sharing of notes had not happened from the outset and this ultimately turned out to be of crucial importance. It is difficult to say whether matters would have taken a different course if the notes of the health visitor and the GP had been shared with the consultant paediatrician from the outset, but there is at least a possibility that this sharing of information could have prevented a significant amount of disruption to the child's and the parents' lives.

In circumstances where it is unclear which notes have been seen or discussed with which treating clinicians or in circumstances where the clinicians have reached differing conclusions, it may be useful, prior to a contested hearing, to convene a meeting of all the treating clinicians to clarify and/or narrow issues. The outcome of this meeting may also inform the decision as to whether, and if so, which clinicians are required to give evidence. The practicalities of arranging such a meeting raises a number of issues for consideration:

o Treating clinicians are likely to have busy schedules and so trying to accommodate various people can be difficult. The earlier the relevant clinicians can be identified and the planning for such a meeting can start the better;

o Have all clinicians been provided with the same materials in advance of the meeting? If they are being asked to consider photographs, are these photographs in the same format for each clinician?;

o What questions are the clinicians being asked to discuss at the meeting? A general discussion is unlikely to be helpful and so practitioners should try to agree in advance the issues /questions to be discussed;

o How is a transcript/note of the meeting going to be obtained?

o Which lawyers are going to attend?

Remember at the hearing that the burden of proof falls on the Local Authority to prove, on the balance of probabilities, that there are reasonable grounds for believing that a child suffered significant harm in their parents' care. The burden is not on the parents to provide an alternative explanation.


Lessons to be learned

The parties' representatives in Re C compiled a list of "lessons to be learned" for treating clinicians which is repeated in the judgment. But what lessons can be learned by the legal practitioners who encounter these types of cases?:

o Do not assume that the only option in the case of an alleged NAI is to wait for the instruction of a single joint expert. Be alert to what other evidence may be available to the parties' from the outset and consider whether any of this would justify an early challenge to the Local Authority's case;

o Be alert to the fact that the decision to issue proceedings may have been based solely on the opinion of the senior treating clinician at the hospital. Check whether they have seen all of the previous notes made by other professionals involved with the child.

o Consider whether there are any other weaknesses in the evidence upon which the Local Authority is relying. In Re C the photographs relied upon were taken by the mother on her mobile smart phone rather than by a specialist camera at the hospital and this was ultimately a relevant factor in the judgment.

o If it becomes clear that there is likely to be evidence in existence which would justify an early challenge to interim threshold, act promptly. Be pro-active in seeking the evidence and try to identify which clinicians are relevant as early as possible in order to prevent delay.

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