Northern Ireland

Abstract

Suspected non-accidental injury and whether to return children home from care: an update

Re A and B (No. 2) (Children: Injury: Proof: Suspicion: Speculation)

The High Court

O’Hara J

Delivered 2 February 2016

This judgment followed on from one given on an appeal from a Family Care Centre ruling as reported in the last issue of Adoption & Fostering. In the course of that judgment O’Hara J had made observations about the nature and extent of evidence which can properly be given by medical experts in non-accidental injury cases. He also expressed a concern about the way in which the term ‘non-accidental injury’ can be used too loosely. Subsequently the Trust made application to the Court of Appeal for a ruling on the following question: ‘Was the learned Family Division judge correct in law in finding that in cases involving injuries to children, medical witnesses should not be asked to express an opinion as to whether the injuries are accidental or otherwise?’

The present hearing considered that question.

The previous judgment

O’Hara J had earlier granted an appeal from a Family Care Centre ruling that injuries suffered by A (a two-year-old girl) were non-accidental and consequently she and B (her four-year-old brother), who had been removed from their mother approximately one year earlier, should remain in care. He had then directed that the children should be returned home to their mother. The Trust did not apply to reverse or challenge his decisions – that the children be returned and that the injuries were non-accidental – rather the Trust was concerned with the first of the following points set out at paragraph 24 of that judgment:

For future reference, I emphasise the following points:

In cases involving injuries to children medical witnesses should not be asked to express an opinion as to whether the injuries are accidental or otherwise.

The burden of proof always lies with the Trust which alleges that injuries are non-accidental.

A conclusion that injuries are non-accidental may be comparatively easy to reach in cases where the injuries are severe or of a type which makes an innocent explanation inherently implausible.

In other cases a conclusion as to whether injuries are accidental or otherwise will involve careful consideration of a range of factors such as those which I have identified in the course of this judgment and which are likely to go far beyond medical evidence about the injuries.

The fact that a mother seeks help from her GP because she is having difficulty with a three-year-old boy is as likely to point away from non-accidental injury as it is to point towards it.

It is not an unacceptable ‘fudge’ or avoidance of its duty for a court to conclude that while injuries are suspicious they have not been proved to be non-accidental. It is simply not possible to identify with the required degree of confidence the causes of injury to children in every case.

Counsel for the Trust submitted that O’Hara J should state a case as requested or at least clarify what he had stated at the start of paragraph 24. Counsel for the mother agreed that clarification of that point would be of assistance. However, O’Hara J did not accept that this was necessary. Instead, he took the opportunity to expand on what he had already said ‘but not without expressing some surprise that in the context of the full judgment there is any need to do so’.

Clarification

Noting that ‘medical witnesses are expert witnesses when called upon to give evidence within the area of their expertise’ and ‘they can therefore use their skill, qualifications, training and experience to express an opinion on any issues which are properly within the area of their expertise’, O’Hara J conceded that the doctors involved ‘could properly give expert opinions as to what the injuries were and whether the injuries could be considered to be accidental or otherwise’. However:

… those opinions could only be expressed by reference to the clinical evidence and any explanation offered as to how the injuries were or might have been sustained. Ultimately it is a matter for the court to determine whether injuries are accidental or otherwise, taking account of all relevant factors including, but not limited to, the expert medical evidence.

He drew attention to A Handbook for Expert Witnesses in Children Act Cases in which Wall LJ outlined the respective roles of experts and judges as follows:

5.1 It will help you, when writing a report and giving evidence in family proceedings, if you bear in mind throughout the respective functions of expert and judge.

5.2 You form an assessment and express your opinion within the particular area of your expertise. Judges decide particular issues in individual cases on all the evidence available to the court.

5.3 Your function is to advise the judge. You do not decide the case or any issue in the case. This is of particular relevance when the credibility of an adult witness is in question. Whether or not an adult witness is telling the truth is a matter for the judge, not for you.

5.4 The corollary to this is that it is not for the judge to become involved in medical controversy except in the extremely rare case where such a controversy is itself an issue in the case and a judicial assessment of it becomes necessary for the proper resolution of the proceedings.

Lord Justice Wall continued:

7.1… your function is to give your advice to the court on any issue properly within the area of your expertise. You do not decide the case: that is the function of the judge.

7.2 By virtue of section 3(1) of the Civil Evidence Act 1972, your opinion on any relevant matter on which you are qualified to give expert evidence is admissible in evidence.

7.3 Accordingly, while it is for the judge to decide, for example, whether a child has been sexually abused or is to be believed when recounting allegations of sexual abuse, you are entitled, if you have the relevant expertise, to tell the judge that in your opinion the child has been sexually abused or that the child is credible when he or she relates allegations of abuse.

7.4 You should, however, be very cautious when advising a judge that in your opinion a particular event occurred. You should do this only if you feel you have all the relevant information and that the expression of such an opinion is both truly within the area of your expertise and a necessary part of your decision-making process. The judge will have to decide the question on all the evidence in the case, including the oral evidence given in the witness box. You will not have access to all that information and the expression of a categorical opinion which may be invalidated by material not within your knowledge will – at the very least – substantially devalue your evidence …

As O’Hara J pointed out, ‘for these purposes there is no relevant distinction between the law of Northern Ireland and the law of England and Wales’. He then went on to explain that the expert medical witness in the present case had not confined her opinion to clinical issues. Specifically she had referred to a ‘collection of things’ which for her tipped the balance towards the injuries being non-accidental. In the view of O’Hara J ‘those “things” were not clinical and should not have formed part of her thinking, her conclusion or her evidence’. However, he acknowledged that ‘those things’ were ‘directly relevant to the social workers whose responsibility it was to form a view of the case based on all the evidence, clinical and non-clinical, in order to determine whether there were reasonable grounds for believing that the circumstances were such that the children had suffered, or were likely to suffer, significant harm in accordance with Article 50(2) and 57(2) of the 1995 Order’. Any view they took would ultimately be for the court to rule upon.

Having expanded on the initial ruling, O’Hara J declined to state a case for the opinion of the Court of Appeal but took the opportunity to add to the substantive judgment by expressing the first bullet point in paragraph 24 in the following amended terms: ‘In cases involving injuries to children medical witnesses should not be asked to express an opinion as to whether the injuries are accidental or otherwise other than in clinical terms.’

Held

Trust application dismissed.

Comment

There is a long-established body of case law differentiating the respective roles of court and expert witnesses in cases of alleged non-accidental injury to children.¹ In this jurisdiction the matter has also been specifically addressed in the Best Practice Guidelines issued by the Children Order Advisory Committee which states that:²

10.2.2 It is of critical importance to distinguish the respective functions of experts and of the Courts: (a) The expert forms an objective assessment, and expresses an opinion within the area of his expertise. This may include an opinion on the issues in the case, but the Court decides particular issues in individual cases.

Further:

10.9.1 The role of the expert is to provide independent assistance to the Court by way of objective, unbiased opinion, in relation to matters within his/her expertise in order to assist the Court to reach the right decision for the children in the case.

Finally, the Draft Letter for Joint Instruction of Expert in Children Order Cases states:³ ‘Unless you have been specifically asked to do so, you should please avoid expressing a view regarding the factual dispute(s) as this is, of course, the province of the Judge at the final hearing.’

Clearly, the O’Hara J ruling though blunt is technically correct. Within the court setting, an expert witness must tread carefully and their submission should not exceed either their brief or their expertise. This, however, would not exclude giving an opinion within those parameters in circumstances where they believe this to have a bearing on the welfare of the particular child. Arguably, they have a professional duty to do so. The weight, if any, given to that opinion is then a matter for the court.

Kerry O’Halloran, lawyer, social worker and Adjunct Professor, Centre for Philanthropy and Non-profit Studies, QUT, Brisbane, Australia, prepared these notes.