Experts: An Update

When I look back now on my early days at the Bar, it feels as though applications for expert assessment were so easily granted.  

I remember Issues Resolution Hearings where cases had languished for weeks, if not months; there was almost an expectation that the timetable would have fallen by the wayside; and threshold was far from agreed, nor the issues narrowed.  The expert’s recommendations would usually be contested by at least one party and an ‘eleventh hour’ second opinion was often sought (and granted), even when the expert’s report had been received weeks beforehand with no action having been taken. 

I may well be sentimentalising, but the landscape certainly looked very different to the present! 

The test in relation to expert assessments is, of course, now well established: governed by FPR Part 25 and Part 18, albeit with some ebb and flow as a result of judicial discretion and the tightening of timetables.  Section 13(7) of the Children and Family Law Act 2014 provides the factors which must be considered when determining an application.  Over the years there has been increasing attention upon the questions which the Court would require the expert to answer, such that each application should now be suitably armed with a focused draft letter of instruction for the Court’s scrutiny at the Part 25 hearing.  Children practitioners will wryly recall President Munby’s (as he then was) definition of ‘necessary’, meaning lying somewhere between “indispensable” on the one hand and “useful”, “reasonable” or “desirable” on the other hand, as set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120 and 125.

Despite the settled landscape, there are times when it can feel that expert assessments are becoming increasingly difficult to obtain.  Lengthy timescales, fees that fall outside approved rates, and perceived partialities can all play their part in determining an application.  Even when an expert assessment is granted there can be the additional hurdle of justifying the opportunity to challenge an expert in live evidence at a contested hearing if written questions have not been able to resolve any outstanding issues.  Any children practitioner will know that for the party who does not agree with the expert’s opinion, a paper exercise offers an incomparable substitute to being able to challenge a witness during oral evidence. This is especially so when considering the number of times an expert’s opinion shifts, even if only slightly, during oral evidence.  With decisions about whether or not to instruct an expert being difficult to appeal, it is crucial that the initial application is as detailed and specific as it can be: pinpointing exactly how the Court will be assisted and why the case cannot continue without it.

London Borough of Hammersmith and Fulham v G & Ors [2024] EWHC 2200 (Fam) 

The substantial focus of this case concerned a child, D, who tragically died in June 2022 after falling or slipping from a bunk bed and becoming entangled around her neck by a decorative scarf which was tied to the bed.  During the course of post-mortem examinations a number of rib fractures were discovered which histopathological examination suggested may have pre-dated D’s death.  The Court conducted a fact-find hearing to determine the cause of those injuries, with D’s parents denying having inflicted the rib fractures and maintaining that they must have occurred either when she fell or slipped, or during efforts to extricate and/or resuscitate her.  When the family were seen in the aftermath of the tragic death of D, there were no other ‘red flags’.  Their home was clean and well-maintained with plenty of appropriate provisions.  D’s siblings moved to the care of a member of the maternal family and the Local Authority issued proceedings in respect of those children in August 2022.  During the course of proceedings D’s parents had another child and moved to a residential unit for assessment.  The reports about their care were uniformly positive. 

Dr Fitzpatrick-Swallow, consultant pathologist, and Dr Marnerides, consultant perinatal and paediatric pathologist, conducted the post-mortem examination of D and identified, macroscopically, a fracture of the left 6th posterior rib with corresponding soft tissue injuries found externally around the site.  Radiological examination did not identify any fractures. The rib cage was sent for histopathological examination by Professor Mangham. 

Dr Ward, consultant paediatrician, was instructed by the parties to report on causation of D’s rib fractures, and Professor McCarthy, consultant bone pathologist, was instructed in respect of histopathological examination of D’s rib cage.

Dr Fitzpatrick-Swallow, Dr Ward, Professor Mangham and Professor McCarthy gave evidence at the hearing.  Professor Mangham and Professor McCarthy came to markedly different conclusions in their reports about their examination of the histopathological slides produced from D’s ribcage – both in relation to the number of fractures and the cause, with Professor Mangham identifying a greater number of fractures and suggesting that the cause was non-accidental.  

Professor Mangham had been asked to provide an addendum report in response to seeing Professor McCarthy’s report.  Professor Mangham, notably, provided this very late.  Professor Mangham eventually conceded more than one error in his conclusions during the course of his oral evidence.  He was unable to explain his errors but acknowledged that one in particular had led to a lengthy delay whilst further enquiries were made.  There remained inconsistencies in respect of some of the reasoning he provided for his opinions, which he nevertheless maintained. 

Professor McCarthy’s evidence was, by comparison, consistent with Dr Fitzpatrick-Swallow’s where the two overlapped and his opinions were measured and well-reasoned.

The Court noted both professors’ experience and made specific acknowledgment of Professor Mangham’s reputation as a highly respected and experienced histopathologist who has provided a number of reports over the years which have been accepted by the Court. Mr Justice Keehan recognised “that he is currently the only forensic consultant histopathologist accepting instructions in cases of suspicious death and/or alleged inflicted injuries in this country” but expressed “With great regret, I was left with a very real sense of an expert who was overburdened with work, who had thus made errors in his examination of the forensic material and who has closed his mind to possible or probable accidental causes for the injuries identified.”  The Court ultimately found Professor McCarthy’s reasoning to be more compelling and preferred his evidence, finding that the rib fractures identified by Professor McCarthy were, on the balance of probability, sustained accidentally and therefore endorsing the Local Authority’s decision, following the conclusion of the expert evidence, not to pursue the findings they had originally sought.

During the course of the police investigation a number of meetings were held between the experts instructed by the police and on occasions the police attended the meetings. The Court noted an inconsistency in the manner in which those meetings were minuted or noted. 

There had also been very considerable delays in listing the fact-find hearing, with three previous fixtures having been adjourned as a result of the necessary police expert evidence not being available or complete.  These issues will undoubtedly be all too familiar to care practitioners.  Mr Justice Keehan noted the tension that frequently exists when the Family Court is preparing for and going to embark on a fact-find hearing and at the same time the police are conducting a criminal investigation into the same subject matter and/or the CPS is proceeding to a criminal trial involving one or more parties to the care proceedings:

“[81] This tension can be particularly acute where (a) one or more of the experts instructed by the police are also instructed as Part 25 experts in the care proceedings or are being called to give evidence at the fact-finding hearing and (b) where one or more of the experts instructed in the care proceedings require access to forensic material held by the police which has been the subject of examination and/or testing by the experts instructed by the police.”

Whilst noting that there will from time-to-time be exceptions (see The Disclosure of Information between Family and Criminal Agencies and Jurisdictions: 2024 Protocol), Mr Justice Keehan set out at paragraphs 82 and 83 of his judgment the need for open, regular and effective dialogue and co-operation between the parties to the care proceedings, most obviously the local authority, and the police and/or the CPS.  It is important to bear in mind that whilst the duties and responsibilities of a medical expert will be different depending on whether they are instructed within a criminal investigation or within family proceedings, in cases of this type medical experts instructed by the police frequently become experts instructed within the family proceedings or will be called to give evidence at a fact-find hearing. Mr Justice Keehan made clear that “if and when the police and/or the CPS decide to convene a meeting with one or more of their instructed medical experts it would be advisable, as a matter of good practice, for a minute or note of the meeting to be taken so that it may be disclosed in due course to the parties in the family proceedings. Moreover, and where practicable, it would be advisable for the parties to the family proceedings to be given advance notice of the proposal to convene such a meeting.”  

Conclusion

The case is interesting not just because of the guidance it offers when approaching cases where crime and family experts overlap, but because it provides a useful reminder that experts can and do get it wrong at times.  It is, perhaps, not hard to understand in a climate where complaint is frequently made about rates of remuneration and unsustainable work levels. As the party on the ‘wrong’ end of the report, however, it makes a world of difference. 

Whilst case law reminds the Court that the evidence of an expert is to be scrutinised in a similar way to the evidence of the lay parties, experts instructed to report to the Court have generally been determined to have the requisite level of knowledge and expertise to make recommendations.  Significant weight is frequently attached to what they say. 

It is for that exact reason that senior practitioners have been raising concern in relation to the SIHIS pilot which is being rolled out in non-accidental head injury cases, and cautioning against a situation arising whereby a panel of clinical practitioners steps into the shoes of Part 25 appointed experts, whether purposefully or not. 

The lessons to be learned? 

• It is pivotal that the right Part 25 expert is appointed, with the right specialism and experience, and the right questions must be asked.
• There are times when experts get it wrong, or disagree.  Our job is to explore and challenge, fearlessly, when we believe that to be the case. 
• Where criminal and family enquiries overlap, communication and keeping a clear record are key.