Safeguarding Conference

Caught in the Cross Fire

Contemporary Legal Issues

David Spicer, LLB,

Barrister

© David Spicer

Unhelpful distinction between

1.“Witness of fact” - the treating
doctor, and
2. Expert instructed in case.

Unhelpful nonsense.
Principles are the same.

What is an Expert?
Person entitled to express an opinion, draw
inferences, choose between options about
the matter at issue by reason of their -

• Education and
• Training and
• Experience

relevant to that issue.

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 Oldham MBC v GW and PW and KPW (a
child) and Dr W. St. C. Forbes (2007)
• “… this court has heard a deal about the
supposed distinction between treating (ie.
clinical) and forensic experts.”

• “Both forensic and treating experts will be

subject to the same duties to the court.”
• “… this court should do nothing to
dissuade experts from providing the
assistance that the court needs.”

Reaching Sound Judgements

• Reasonableness • Knowing and applying
• Properly reasoned. procedures or why
• Taking account of all deviated.
relevant factors. • Consulting
• Giving appropriate appropriately.
weight. • Acknowledging lack of
• Considering all options / information or expertise
alternatives. and its impact.
• Keeping an open mind.
• If provisional - what
• Knowing and acting in more needed.
accordance with law.
• Human Rights
• Considering relevant
guidance. perspective
• Accurate recording of
above

© 2006 David Spicer

Joint Ministers’ Letter and

Statement
• 20 July 2007
• Joint Departmental Statement on the
duties of doctors and other
professionals in investigations of child
abuse

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 www.statutelaw.gov.uk
www.hmcourts-service.gov.uk

Child Abuse?

• Move away from notion that there

is a medical diagnosis of child
abuse.

Shared Responsibility
• Shared ownership of decision making.

• Prevents isolation of professionals and

agencies.

• Improves quality of judgments.

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 Climbié
• Recommendation 37
The training of social workers must equip
them with the confidence to question the
opinion of professionals in other agencies
when conducting their own assessment of
the needs of a child.
Recommendation 100
The training for child protection officers
must equip them with the confidence to
question the views of professionals in other
agencies, including doctors, no matter how
eminent those professionals appear to be.

Continuing Review
• What impact does later information or
lack of it have on early judgments?
• What impact do later research or
guidelines have on early judgments?

D v B (2006) 1FCR 369

• A judge in difficult cases had to have

regard to the relevance of each piece of
evidence to other evidence and to
exercise an overview of the totality of
the evidence.

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 A County Council v A Mother , A
Father and X,Y, and Z (2005) Ryder, J
“….. a factual decision must be based on all
available materials, ie to be judged in the
context and not just upon medical or
scientific materials, no matter how cogent
they may in isolation seem to be.
Just as best interests are not defined only by
medical or scientific best interests, likewise
investigations of fact should have regard to
the wide context of social , emotional, ethical
and moral factors.”

A County Council v K, D and L

(2005) EWHC 144 Charles J.
• In civil cases concerning children it might :
• (a) assist all involved
• (b) better reflect roles of expert and judge
• (c) demonstrate expert not decision maker as
to whether death, injuries or harm is result of
non-accidental human agency or threshold
satisfied and not have all relevant
information,
• If medical experts not asked to express view
as to cause but were asked:

A County Council v K, D and L

(2005) EWHC 144 Charles J
• (i) identify possible cause and why each
should be considered as possible,
• (ii) state views on likelihood of each and
reasons why included or rejected as
reasonable (not fanciful/theoretical),
• (iii) compare likelihood of reasonable
possibilities being cause,
• (iv) state if a cause is most likely and
reasons,
• (v) state if a cause is more likely than not to
be cause and reasons.

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 Oldham MBC v GW and PW and KPW (a
child) and Dr W. St. C. Forbes (2007)
• This is not a case where there is “no smoke without
fire”, this is a case where a family court and the
expert who advised it got it wrong”.

• Consultant Paediatrician.
• Consultant Radiologist.
• Consultant Neuorologist.
• Senior Consultant Neuroradiologist – Dr W. St. C.
Forbes – thought possible NAI.
• Consultant Paediatric Neuradiologist.
• Consultant Paediatric Neuorologist 2 – in absence of
history of accident, NAI must be considered.
• Social services involved.

Oldham MBC v GW and PW and KPW (a

child) and Dr W. St. C. Forbes (2007)
• LA solicitor wrote to Dr Forbes.
• No care proceedings without
reasonable cause to believe NAI.
Asked
• “Whether K’s injuries were likely on a
balance of probabilities to have been
accidental or non-accidental.”

Oldham MBC v GW and PW and KPW (a

child) and Dr W. St. C. Forbes (2007)
• Dr Forbes confirmed opinion.
• Care proceedings initiated.
• Fact finding hearing directed.
• Process of peer review and case
management concentrated on medical
consensus and did not highlight
unusual features of case later accepted
as rare example of medical event
constitutional not imposed.

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 Oldham MBC v GW and PW and KPW (a
child) and Dr W. St. C. Forbes (2007)
• Experts meeting agreed probable cause
a single shaking episode involving
impact and considerable force.
• Parents allowed to instruct further
expert neuroradiologist Neil Stoodley.
• Dr Neil Stoodley’s opinion
“dramatically different.”

Oldham MBC v GW and PW and KPW (a

child) and Dr W. St. C. Forbes (2007)
• Local authority applied to withdraw.
• Refused.
• 3rd expert directed – Prof in Paediatric
Neuroradiology in Sweden.
• Not NAI.
• Forbes, Stoodley and Swedish Prof.
agree not NAI.

Dr Forbes on trial
• Joined as a party so judge can decide
1. Whether Dr Forbes’ interpretation was
wrong ie outside any orthodox or
mainstream opinion.
2. Whether Dr Forbes failed to advise
colleagues and court that signs were
highly unusual and had experience of
only 2 such presentations.

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 Conclusions
• Experts to be asked not only whether their
opinion is mainstream or orthodox, but also
what is range of mainstream or orthodox.
• Also whether within the range it might be
said cause is unknown, highlighting unusual
features that might indicate contrary
interpretations to their own.
• Should take court through differential
diagnosis, highlighting contradictory or
inconsistent features.

Lessons
• Courts and experts too focused on agreed
solutions to difficult problems.
• Experts should inform court of agreements
and disagreements.
• Unusual features minimised and as
consequence other options not sufficiently
explored.
• Imperative of child protection overtook
scientific ie medical analysis in an attempt
explain the unknown.

Dr Forbes Acquitted
• Genuinely took a different professional view.
• Fact his view dominant and agreed by others
not a criticism of him.
• Abided by all experts duties’ place on him.
• He and court erred when he unconsciously
strayed into role of decision maker -
unrecognised by court.
• Should have more forcefully brought unusual
features to attention of court.

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 Dr Forbes Acquitted
• Should allow court to be responsible
for protecting child.
• Declined to criticise Dr Forbes for
opinions.

Terminology
and Communication
• Assume others will misunderstand.
• Assume you will misunderstand.
• Make clear implications/inferences
to be drawn.

• “signs” and “symptoms”.

• “vague signs not diagnostic of
sexual abuse”

Terminology
• “chronic”

• very serious?
• Or long lasting?

• “peer review”

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 Standard of Proof in Civil
Proceedings

• On the balance of probabilities

• More likely than not

Standard of Proof - Civil

BUT Re H and R (1996) HL
The more serious the allegation the
less likely it is that the event occurred,
and, hence, the stronger should be the
evidence before a court concludes that
the allegation is established on the
balance of probability.
• An alleged but unproven fact is not a
fact for this purpose.

Pre 2004 Arrangements

• Lead agency with duty to safeguard
and promote the welfare of children.
• Power to request assistance form
limited list of other agencies.
• Limited duty on those agencies to
provide assistance.
• Failed.

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 Children Act 2004
• With effect from 1 October 2005 NHS
Trusts must:
• s11(2) make arrangements for
ensuring
• (a) Functions discharged having
regard to the need to safeguard and
promote the welfare of children.

Education Act 2002

• s175 - state schools and FE colleges.
• s157 – regulations - independent sector
schools.
• Ensure functions discharged having
regard to the need to safeguard and
promote the welfare of children.

• What does this mean?

What does this mean

• All functions to be carried out having regard
to the need to safeguard and promote the
welfare of children.

• Respond to enquiries.

• Share information.

• Proactively ensure others have information

necessary to safeguard and promote the
welfare of children.

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 Reviewing Children’s Cases
• Previously health and education had duty to
partake when requested by LA.
• Now impact of s11 Children Act 2004 - have
duty to involve themselves and ensure fully
aware of issues to inform practice.
• Ensure have minutes promptly and
comment.
• Placement and Review Regulations 1991
require LA to have child’s health history and
educational history.

PL v Local Authority & Ors [2007]

EWCA Civ 102
• Following her receipt into care, KW was
medically examined by two local
paediatricians, whose evidence, whilst
mutually contradictory in certain respects,
was unequivocal in its conclusion that she
had been grossly anally abused.
Accordingly, in the care proceedings, a
primary plank of the local authority's case
was that KW had suffered serious sexual
abuse in the form of anal penetration by her
father, either with his penis or a similarly
shaped object.

Criminal Proceedings
• During the course of the criminal
proceedings, the Crown Prosecution
Service placed the reports of the two
paediatricians who had diagnosed the
sexual abuse of KW before other,
national, experts. The result was
dramatic. The two further doctors
consulted reached the opposite
conclusion, namely that there was no
clear evidence of abuse.

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 Rehearing of Care Proceedings
• the judge carefully examined the
evidence, heard from all four doctors
and. applying the test enunciated by
Lord Nicholls in his speech for the
majority in Re H, was not satisfied that
KW had been the subject of sexual
abuse by her father.
• Found mother unlikely to protect child
from significant harm.

PL v Local Authority & Ors [2007]

EWCA Civ 102
• But where the court (as here) finds that,
on the balance of probabilities, the
abuse has not taken place, it is difficult
to see, as a matter of logic, how the
other parent can be held to have failed
to protect the child against something
which the court has found did not
occur.

Human Rights:

European Convention on
Human Rights and
Fundamental Freedoms

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 Proportionality

• Interference with private life must be

proportionate response to issue
requiring intervention.
• Least intrusive means must be
considered.

Belting small children – Re F

(2007) EWCA Civ 516
• 3 children under 3 years.
• Father hit oldest with a belt because he
would not stay in bed – badly bruised.
• Another child bruised on bottom after
hit by mother.
• Also finger tip bruising on ribs and
shoulders.
• No bruising seen on 3rd but admitted
“unreasonable chastisement.”

Belting small children

• “It is a case of physical chastisement
…which cannot be condoned but which
cannot be classified by any stretch of the
imagination as of a severity and seriousness
or persistent enough to justify the
disproportionate remedy of removing the
children from the family where they belong
and placing them in care and placing them
for adoption. …. this is not … a case
requiring a care order.”

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 PL v Local Authority & Ors [2007]
EWCA Civ 102

• the judge found that the father had

smacked KW aged 8 months as alleged,
and that this constituted significant
harm.

• “Plainly, on any view, striking a baby of eight

months with any blow, let alone a forceful
one, is unacceptable parental behaviour. We
have to say, however, that in the overall
context of the issues raised in this case, we
do not think that, of itself, a single blow by
the father (or even more than one blow)
would be sufficient to satisfy the threshold
criteria under the first limb of CA 1989,
section 31. There is no evidence that it
caused the child significant harm.”

• “Finally, the mother's own violence to

the child is, of course, unacceptable
parental behaviour. There is, however,
no evidence that it caused KW
significant harm. Once again, therefore,
we think this evidence goes to
likelihood of future harm, rather than a
state of significant harm existing at the
date the local authority instituted its
protective measures.”

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 Involvement of Parents

s6 Human Rights Act 1998

• Statutory duty on all public authorities
not to act incompatibly with the
Convention Rights.

• Courts have determined that there is a

pro-active duty to promote the Rights.

Article 6 - Fair Hearing

• Equality of arms.
• Adversarial.
• Access to evidence.
• Reasonable opportunity to present
case – includes history of handling
matter.
• Involvement sufficient to protect
interests.

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 Article 8
• Everyone has the right to respect for his private and
family life, his home and his correspondence.

• There shall be no interference by a public authority

with the exercise of this right except such as in
accordance with the law and is necessary in a
democratic society in the interests of national
security, public safety or the economic well-being of
the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the
protection of the rights and freedoms of others.

Article 6. Article 8
• Parents (and child) to be sufficiently involved
through out processes
• To protect own interests
• To influence the making of decisions.
• Where decisions made at meetings – need to
be present or need to be clear why not.
• In any event demonstrate that informed
contribution sufficient to influence decision.
• Before the decision is made.

Child Protection Processes

• Strategy meetings to decide how and
when parents will be informed and what
contribution to make.
• If child to be taken into accommodation
– clearly inform parents in writing of
reasons, deficiencies in care, what has
to be done to secure return, timescales
– record responses and consider
before decision taken.

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 Revised Volume 1 Guidance;
Public Law Outline
• In non-urgent cases before care proceedings
issued –
• Pre-proceedings letter to be sent to parents.
• Setting out why proceedings necessary,
what must do to avoid and timescales.
• Told to take to solicitor.
• Meeting to discuss what will happen –re
assessments etc.

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