username

password

Established
Berkeley Lifford Hall Accountancy Services AlphabiolabsIQ Legal Training

Home > Judgments

Re G (Child Post-Mortem Report: Delays) [2022] EWFC 55

This case concerns the difficulties caused in family proceedings arising from the delay in completion of Post-Mortem reports following the death of a child. Such cases reach the family court where there is a surviving sibling, and where uncertainty about the cause of death might give cause for concern that the surviving child is also at risk of harm.

___

The judgment, delivered by the President of the Family Division, Sir Andrew MacFarlane, is not (as is usual) a record of any judicial decision, because ultimately the case management issues concerning the child G were resolved by agreement. Instead the 'judgment' is "simply a narrative account of the problem…together with a distillation of the various solutions, put forward by counsel, seeking to address a significant problem which occurs in cases which concern child homicide in the Family Court." The 'judgment' also contains the President's own view on how such cases might proceed in the future, acknowledging that such 'solutions' are neither tried nor tested – and were no more than ideas.

The President is clear in stating that the judgment is not authority in any way and that decisions in other cases are for the trial judge in each case to resolve. That said, the President does give quite a strong steer to judges about the style of case management that they are expected to adopt in dealing with cases of suspected child homicide.

The 'problem' the judgment is addressing, is identified as "extreme delay that is now regularly encountered in the preparation of a post-mortem report from a pathologist following the suspicious death of a child." The court notes that "Whilst the post-mortem examination, which is conducted by a lead forensic pathologist, will normally be undertaken promptly and within days of the death, material collected during the post-mortem is then likely to be sent off for specialist analysis by other experts and it is this latter process which can generate extensive delay. The preparation of the overall post-mortem report can only move to a conclusion at the pace of the slowest contributor and it cannot be completed by the lead pathologist until the reports of each of the specialists has been received. In the present case the Family Court was told in February 2022 that it would be a further 9 to 12 months before the post-mortem report would be completed."

A simplified illustration of the potential impact upon surviving siblings and their families is provided when the dates pertaining to G are set out – the death of G's brother in October 2021, occurred when G was about 1 ¾ years old. The likely date of any decisions post fact-find would be probably 'summer 2023 or even later', by when he would be 3 ½ . Alongside that, in G's case, as in others, the police investigation had also stalled because of outstanding post-mortem information.

The President's blunt statement is that : "The timescales that are now regularly encountered in care proceedings following the death of a child are wholly outside those required by Parliament and they are plainly contrary to the welfare of any surviving sibling who is the subject of such proceedings."

The judgment analyses the causes of the delays in post-mortem reports, which relate primarily to structural and systemic issues, described in a 'note' prepared by the Home Office to assist the court. One particular area of difficulty is the severe shortage of osteoarticular pathology experts (in fact there is only one, whose timescales are, unsurprisingly, lengthy).

The judgment suggests two strands of potential solutions, potentially to be used in combination where appropriate:

(a) Instruction of an alternative post-mortem expert

(b) Use of evidence gathered prior to death

Adopting what counsel for the father had submitted, the court noted that:

"In a case such as this, involving what is a suspected inflicted head trauma to an infant, the Family Court does not necessarily require a completed post-mortem report in order to proceed to adjudicate upon threshold issues. Experts such as a neurosurgeon and neuroradiologist are regularly instructed in cases involving similar clinical presentations to those observed [here], but where the subject child survives the precipitating incident. Such experts would not ordinarily require tissue or other samples and usually prepare their reports based on the medical documentation and imaging."

"Any osteoarticular expert instructed by the Family court would need to examine the necessary bone samples to provide a full report and specifically in order to provide an opinion in relation to causation and dating of any fractures and to rule out any underlying medical cause', but 'radiologists can examine x-rays and provide likely timeframes for the causation of fractures, such as those observed [here], whilst medical records including blood testing and analysis are often sufficient for paediatric and haematological experts to consider the issue of underlying medical conditions."

Rather than wait for the final post-mortem report, the court could use the Part 25 process to instruct a suitable range of experts (for example neurosurgeon, ophthalmologist and neuro-radiologist) who could consider causation and the evidence as necessary to determine threshold issues. Where necessary for consideration by any Part 25 expert there was no reason why the samples that would ultimately be considered by the Home Office pathologist could not be disclosed to the parties to facilitate that Part 25 instruction (subject to appropriate safeguards).

The President reiterated the guidance given in Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192; [2022] 1 FLR 454 about the circumstances in which it is necessary to engage in fact-finding, and the approach that should be taken, bearing in mind the overriding objective and the need to do justice efficiently in the individual case.

He concluded that "Whilst neither H-D-H nor Lincolnshire CC v CB dealt with the situation facing the court as a result of delays in the provision of post-mortem reports, evaluation of the case management options available to the court in such cases through the lens described in Oxfordshire CC v DP and H-D-H is likely to be appropriate. In cases where the death of a child is sudden, with little or no evidence of pre-death injury or symptoms, for example where the cause of death is suspected to be suffocation, there may be no alternative but to await receipt of the full post-mortem report. But in other cases, for example the present one, where there is apparently a range of evidence prior to death which, if established, would be sufficient for the court to determine both the s 31 threshold and the ultimate welfare decision, it may not be 'necessary' to await the full post-mortem report where the impact on the child's welfare in postponing the process until that report is received may be disproportionate and unacceptable."

The judgment indicates that individual judges will need to engage in proactive case management of cases involving suspected child homicide:

"It is no longer acceptable for the Family Court simply, and passively, to accept that a post-mortem report will take a year and that the Family proceedings must therefore be put on hold. The need to meet the welfare needs of the surviving child(ren) and the statutory duty to conclude the proceedings within 26 weeks impose a requirement on the Family Court to be proactive in considering options by which such evidence as is 'necessary' to establish the s 31 threshold and determine the ultimate welfare question can be obtained from other sources."

Making clear that waiting for the post-mortem process should only be accepted where unavoidable, the President said that:

"In future the Family Court should only be obliged to delay its proceedings to await receipt of a post-mortem report in a suspected child homicide where it is truly 'necessary' to do so in order to achieve the overriding objective of dealing with cases justly, having regard to the welfare issues involved. In all other cases, the court should consider adopting alternative strategies to achieve a more expeditious resolution of the proceedings, whilst still meeting the overriding principles."

Case summary by Lucy Reed, Barrister, St John's Chambers

For full case, please see BAILII