In Defence of Experts - LB Islington v Al Alas and Wray

aug2012cotJo Delahunty QC and Kate Purkiss, leading and junior counsel for the first respondent and mother Chana Al Alas in the “Vitamin D and Rickets” case, examine the vital role played by expert witnesses and question moves to restrict their use in care proceedings

On 25 July 2009, Jayden Al Alas Wray died whilst a patient at Great Ormond Street Hospital (GOSH).  He was four months old. His parents were not with him because two days earlier they had been arrested at his bedside on suspicion of inflicting grievous bodily harm on him and they were prohibited from seeing him. The evidence of the parents’ alleged wrongdoing came from doctors at University College London Hospital (UCLH) and GOSH where he had been treated, and both hospitals attributed all his injuries to non-accidental causes.


They concluded that he had been the victim of baby shaking, demonstrated by the classic TRIAD of injuries (bleeding from a vein between the dura and the brain, disease of the brain and retinal hemorrhages) together with fractures at multiple sites and varying ages.

In due course, Jayden’s parents would stand trial at the Central Criminal Court for murder and they would be at the centre of a six-week fact-finding hearing relating to the same issue in the Family Division in which a total of 14 experts’ evidence was adduced by the respective parties. At the Old Bailey, the judge directed the jury to find the parents not guilty. In the Family Division, Mrs Justice Theis could not be satisfied, on the balance of probabilities, that any of the fractures or the traumatised fissure were as a result of inflicted deliberate harm caused to Jayden. The fractures could have been caused by the day to day handling of a young baby due to the particular fragility of Jayden’s bones as a result of the severity of his undetected rickets.  She found that it was more likely than not that Jayden was suffering from seizures caused by a low level infection prior to his admission to UCLH. 

The treatment he received at UCH between about 2 – 6pm on 22.7.09 was ‘sub-optimal’ and contributed to his brain infarction. The retinal haemorrhages observed in Jayden were more likely to be secondary to the hypoxic ischemic injury. She was unable to conclude that it was more likely than not that the hypoxic ischemic encephalopathy had a traumatic cause. It was likely to have been caused by a combination of different factors, some of which might be unknown, but not including inflicted trauma, either by way of impact or shake or any other mechanism.  The SDH was more likely to have been caused by trauma. However, that had to be looked at in the context of all the other evidence and, in particular, the findings about the other component parts of the triad and the ‘wider canvas’ so that even though the presence of the SDH pointed towards Jayden’s injuries being caused by trauma the balance of the evidence pointed the other way.

Dr. Irene Scheimberg had been instructed to perform a post-mortem by the coroner against the wishes of the police. She observed the radiological signs of rickets prior to the post mortem and diagnosed actual rickets on examination. It was at her insistence that tests were carried out which showed that Jayden’s mother, Chana, had severe vitamin D deficiency which she passed on to her son in utero leading to congenital rickets which became more severe as she continued to pass on the deficiency through her breast milk.

There was a further contested hearing, namely, whether Mrs. Justice Theis’s judgment should be redacted to keep the children anonymous and not to name the doctors involved. Theis J held that no part of the judgment was to be re-written, no names were to be redacted. Section 12 Administration of Justice Act 1960 was disapplied. The parents were permitted to refer to the medical and expert evidence and to name Jayden and their daughter Jayda for whom the London Borough of Islington had assumed parental responsibility following the death of her brother. They were, in effect, allowed to reclaim their history.


Implications

The judicial analysis in Al Alas & Wray of the medical evidence and science underpinning that evidence has serious implications for other cases where there are allegations of inflicted fractures or NAHI (non accidental head injury). It may throw into doubt some findings previously made where Vitamin D or rickets was undetected and fractures attributed to excessive force. This case highlights:

  • the limitations of treating medics (however senior) as experts of opinion;
  • the extent to which experts can make a difference to outcome;
  • the greater freedoms that criminal defence teams have to instruct and be advised by the experts they select, including their greater ability to seek out and call experts from outside the UK;
  • the significance of the clinical picture and the necessity for all treating medics and experts to keep it in mind and apply it to their analysis;
  • the lack of experience/inability of some senior paediatric radiologists to be alert to and have the skills to detect radiologically evident ‘classic’ signs of rickets together with the implication of this when NAI (non accidental injury) is diagnosed;
  • the paucity of research into the ramification of vitamin D deficiency and rickets;
  • the importance of openness in the family courts, in terms of evidence given as well as outcome.


Experts: a lottery?

The debate conducted in the media about the use of experts in care proceedings reflects the conflicted stance society takes on the emotive issue of child protection when a particular story breaks in the national media. Articles generally reflect either the injustice to child and parent alike of a wrongful removal of children from their families or the tragedy of vulnerable children to be left at home to suffer abuse at the hands of those who should protect them. Our profession needs a rational debate about how to balance the rights of a child, when there is a conflict between a child’s right to grow up in its family of origin and at the same time offer protection against parental abuse or neglect within that family.


The context

The debate on this issue needs to acknowledge the crippling financial constraints under which the family justice system operates. The Courts are inundated with ever more applications and try to determine them as quickly as possible, yet work within finite restrictions imposed by availability of court rooms, judges and staff. The potential for each or any of the above pressures to impact upon the welfare of a child should be self-evident. Those practitioners who still represent the publicly funded parties in care proceedings face lengthy daily bureaucratic battles with the LSC for funding approval each step of the way before they have even been able to think about case strategy. We suggest those battles are about to become harder as a result of the proposed changes to the family justice system.


Experts : Family courts - the poor relation

Expert reports are expensive disbursements. A cull is coming: but at what price? The Family Justice Modernisation Programme aims to:-

“further reduce the need for expert evidence in both standard and exceptional tracks, we will enlist the help of the Family Justice Council and join with Government in the publication of peer reviewed research as to evidence-based good practice. Not only will pathway documents be available giving guidance as to the form and content of materials for use in court, but judges will have available to them research materials which are uncontradicted i.e. generally accepted by a reasonable body of professionals. That would not of course prevent a dispute being heard relating to such materials but it will concentrate minds as to the need for the same in many cases.”
Ryder J, Fourth Update Family Modernisation Programme

The Care Monitoring System Guidance for Practitioners suggests that a form of order in relation to the decision on the instruction of an expert will include the reason for permission being granted such as the absence of expert evidence from local authority/ Cafcass or an identified necessity on a relevant issue outside the skill and expertise otherwise available to the court.

We are very concerned that a change in culture which restricts the use of expert evidence where the local authority already has such evidence, and where the interim threshold on very basic terms has been established, may be interpreted restrictively by the family courts: in reality this will impact mainly on Respondent parents in contested care proceedings. The burden of proof rests with the Local Authority in care proceedings. Where it adduces expert evidence, a Respondent should not be denied the opportunity to call expert evidence to challenge that opinion. The suggestion in the Programme is that a library of approved research material may take the place of the experts themselves. In a case such as Al Alas & Wray, such restriction would have resulted in catastrophic injustice.


Treating medics: expert enough?

In cases like Al Alas & Wray where a Local Authority is propelled into urgent action by allegations of inflicted injury and death, it is perhaps inevitable that the evidence which gives rise to that allegation will emanate, at least in part, from those medical professionals who treated the child. They form opinions in less than ideal circumstances because timely medical analysis and intervention is the clinical imperative. The hospital work place is not immune from suspicion and corridor discussion. Opinions are formed as evidence is emerging and emotions run high. Treating medical professionals in such situations will have formed a clear view or opinion, and if their evidence is put before a Court by a local authority it is because they have decided that injuries have been inflicted.

Experts instructed within family proceedings have an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid (FPR, PD25A Para 3.1). Historically the practice has been not to commission expert reports from treating clinicians. In the case of Re B (Sexual Abuse: Expert’s Report) [2000] EWCA CIV 516, Thorpe LJ said:

“It ought to be elementary for any professional working in the family justice system that the role of the expert to treat is not to be muddled with the role of the expert to report.” 

However, there is no embargo on such evidence being obtained if appropriate. As Thorpe LJ observed in O-M, GM (and KM) v The Local Authority, LO and EM [2009] EWCA Civ 1405, “clinical involvement did not, of itself, affect a doctor’s capacity to act as an expert witness’” but he drew a clear distinction in respect of experts who had firm views as a result of their treatment of the child about the very issue the court had to determine.

We are worried that at the very time when the family justice system is struggling to meet the twin objectives of curtailing expenditure and delay, and where the medical professionals involved in a child’s treatment have the authority not only of their professional standing but of having given opinion evidence to the family courts in other cases, it may be difficult to resist the suggestion that the Court should afford them the status of experts.  

However, the case of Al Alas & Wray highlights the very real difficulty in relation to such a proposition. The Court’s enquiry into causation of injuries and death was in effect a consideration of whether or not the opinion clinicians formed when treating Jayden was valid. This was relevant to the adequacy of the treatment, which was in turn relevant to the issue of causation of encephalopathy. The Court had the benefit of all of the evidence and could take an unfettered view in relation to the treatment given. In Al Alas & Wray, this enquiry included not only detailed forensic examination of Jayden’s treatment in life at both UCLH and GOSH but his parents’ evidence, the evidence of other witnesses, the chronology of his deterioration leading up to his admission to UCLH and then after admission to UCLH, and CCTV of Jayden and his parents en route to and at UCLH, which demonstrated to the surprise of treating clinicians at GOSH that he had been conscious on arrival at UCLH. The judge observed that she had had the opportunity to consider the events in “exhaustive detail with the benefit of expert evidence over a number of weeks”, something which the clinicians operating on the ground in such urgent situations do not have.

In Al Alas & Wray eminent treating clinicians at GOSH had formed a clear and forcefully expressed opinion that Jayden’s injuries were inflicted. They were wrong. But for the involvement of experts would this have been revealed? We doubt it.


Experts: what’s in a name?

The Family High Court had the assistance of many eminent experts. To barristers involved in TRIAD cases in either the family or criminal division cases the names are a familiar roll call of the hawks and doves of the scientific world; operating in a community where science is contentious as well as complicated and where dissent from the norm can attract professional hostility in place of respectful scientific debate. The UK has a self limiting pool of experts willing to give evidence in family cases: the criminal Bar has greater flexibility. We envy them.

With the 6 month guillotine now looming in care proceedings under the Ryder J proposals, parents face a two track time line when criminal proceedings are also underway with very different potential outcomes. In the family court, with more limited access to expert evidence, there will be an outcome and conclusion within 6 months (given we do not yet know how the ‘escape’ clause will be interpreted or how regularly it will be exercised). That conclusion may lead to a Placement Order with life-long consequences for the parent and child. Time for appeal is limited. The consequences of the orders are played out: care plans are implemented. In the meantime, in the criminal trial, a longer timescale allowing for the instruction of a wider pool of experts leads to an acquittal as a result of expert evidence where the ‘opinions’ of treating medics are called into question and ‘trumped’. What then is a parent to do? Apply to set aside the family findings? If the child hasn’t been placed, that leads to uncertainty and delay as a minimum. If not allowed, it leads to potential injustice for the family. If the child has already been placed for adoption, the prospects of being able to turn back time are remote (as in the case of Re W (Children) [2009] All ER 1156 - an Appeal against existing Adoption Orders and earlier Care Orders on the basis that the original Care Order was a miscarriage of justice i.e. scurvy not NAI). 

We believe that swift justice may lead to injustice if the court does not have before it the evidence that is pivotal to its final decision. In Al Alas & Wray, had such timescale been enforced, there would have been no realistic prospect of obtaining the expert evidence which exonerated the parents in the family proceedings. We must explore ways in which we can make greater use of their expertise, while still maintaining the transparency upon which the family justice trial system depends.
What we cannot do, we believe, is to allow the proper forensic use of experts to be restricted by artificial time constraints and cost limitations which mean that the family justice system may be on a fast track to potential injustice.


Jo Delahunty QC, 4 Paper Buildings
Kate Purkiss, Coram Chambers

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