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Home > Judgments > 2019 archive

Re F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244

An appeal against findings that the father had inflicted petechial haemorrhages to his 6 month old child. Appeal allowed. Moylan LJ made general observations as to treating clinicians becoming involved as experts in care proceedings.

Background
Her Honour Judge Hudson heard a fact-finding hearing.  She determined that petechial injuries sustained by the child were inflicted by the father. 

The court heard evidence from the treating clinician and two court appointed experts, a consultant paediatrician and a consultant pathologist.  The treating doctor did not undertake work as an expert witness but was willing to give evidence as a witness with expertise.  She attended the experts' meeting. 

None of the medical witnesses had experience of petechial haemorrhages and areas of sparing of the nature and pattern seen in this case. The child's presentation was "incredibly unusual".  The judgment recorded that the doctors had found the case "exceptionally difficult".  They could not identify a clear medical cause. None could provide a mechanism which explained the petechiae and sparing in the absence of other injuries.  The two experts did not support inflicted injury as being a probable cause.  The judge's conclusion was based on her understanding of the treating clinician's evidence and her evaluation of all the evidence, particularly her assessment of the parents. 

The father appealed. He contended that the judge's conclusions as to the effect of the medical evidence was flawed and that the judge had insufficiently explained her conclusions. The court was invited to guidance on the application of s.13 of the Children and Families Act 2014 and Part 25 of the FPR 2010 when a treating clinician becomes involved as an expert in care proceedings.

Decision

In the lead judgment, Moylan LJ gives a detailed summary of the medical evidence [para 52-108].  He observes that the way in which the medical evidence was obtained appeared to make the picture more diffuse.  It may have been helpful for a summary of the evidence to have been prepared by the child's solicitor following the experts' meeting for the doctors' consideration and agreement. 

The trial judge appeared to have misstated the evidence of the treating doctor as to the probable cause of the injuries.  Absent this, the judge's conclusion as to the likely mechanism was unsupported by the evidence. 

A judge may make a finding based on the evidence of a treating clinician in preference to that of an expert.  However, in this case, the judge did not engage sufficiently with the evidence that did not support her findings.  It was not clear from the judgment why the judge discounted evidence which pointed against inflicted injuries or how these features were outweighed by other evidence. 

The appeal was allowed and the judgment set aside.  The court was not in a position to determine that the local authority's case had no sufficient prospect of being established to justify dismissing proceedings. The local authority was permitted to pursue a rehearing if they chose to do so.

Guidance
Moylan LJ was hesitant about giving guidance about the manner in which s.13 and Part 25 should be applied but made some general observations.  The issues raised would benefit from broader consideration by the President's Working Group on Expert Witnesses.

In this case, the treating doctor had made clear that she was not in a position to act as an expert witness.  However, this did not mean that she was not able to give expert evidence. There can be good reason for the provisions of s.13(5), (6) and (7) to be applied with a light touch.  Though her evidence would seem to come within the scope of s.13(5) "expert evidence (in any form)",  she was not initially engaged for the purposes of proceedings. However, through involvement in the experts' meeting she was then providing expert evidence for use in the proceedings (FPR 25.2(1)).

It is important that the court and parties recognise the different between treating professionals and those instructed to provide expert evidence. A treating professional brings a different perspective and there is no expectation that they would undertake research for the purposes of preparing a report, as would an instructed expert.  This does not mean that their evidence could not be accepted in preference to the expert but it is a feature that the judge must have in mind when assessing the evidence. 

It would not support the proper and expeditious determination of cases if unnecessary or disproportionate obstacles were placed in the way of expert medical evidence being available to the court. In that context, Moylan LJ opined that a treating professional who is also an expert will in some cases be able to give expert evidence without all or even any of the requirements of Part 25 being applied. However, this requires broader analysis than can be undertaken in a single decision. 


Summary by Victoria Roberts, barrister, Coram Chambers

You can read the full judgment of Re F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244 on BAILII