A new pilot has recently been introduced in the family law courts in Birmingham, Sheffield and Manchester in cases where there are concerns that children have received inflicted head or brain injuries.  The pilot is still in its early stages and places more emphasis on the input of treating doctors, the vision being that all medics involved in the treatment of the child will liaise and prepare a report which will then be provided to the parents and the court.  The expectation is that this may avoid the need for independent, court appointed experts, or even court proceedings at all. 

Ilke Hatter-Weihs, Paralegal at Wollens reports on the changes and the possible implications. 

The pilot is a significant development within care proceedings, and the question for those family lawyers who specialise in non-accidental injury cases is whether such a scheme can be truly fair to parents, and indeed to the children themselves.

It goes without saying that medical evidence is crucial in these type of cases, however there is a fundamental difference between a treating medic and an independent expert.  A child with potential brain injuries will need treatment in hospital by neurosurgeons, neuro-radiologists, ophthalmologists, radiologists, paediatricians and countless other hospital staff.  These medics are essential to the child’s care and they can provide factual evidence on their observations and treatment of the child, but is more than this is required in care proceedings where parents face serious allegations of harming their child, and often the permanent removal of the child from the family through adoption?

Wollens Partner, Rachel Carter, who specialises in this work, commented:

‘Whilst we understand the intention behind this pilot, which is to reduce timescales and costs of these kinds of cases, there is deep concern among those of us that do a lot of this work that this pilot will seek to bypass a parent’s right to a fair trial by preventing the instruction of independent medical experts and cross examination of them at trial’.

The first thing to note is that an independent expert in care proceedings is just that – independent.  They are jointly instructed by all the parties, and the court has full oversight of their appointment and the questions they are required to answer.  The rules and expectations surrounding medical experts in court proceedings are substantial.  They will have their credentials and expertise closely assessed by the Judge before they are even appointed.  They must be up to date and knowledgeable about research and developments in their field.  They are, by definition, experts – often with decades of knowledge and experience behind them not only in their area of medicine but in non-accidental injury.  Crucially, they are also required to provide an opinion on the possible causes of a child’s injury and they will be subject to cross-examination in court.

Brain injuries in children are complex.  A child’s presentation can vary, and every child is different.  Research into such injuries is ever-evolving.  A good independent expert will always keep an open mind about the potential causes of any injuries, including consideration of any underlying medical or genetic conditions that may be relevant.  We have case after case where an expert’s oral evidence in court has substantially changed the course of proceedings.

There is no doubt that courts are experiencing increasing pressure on their time and resources.  Expert reports are expensive, which in turn puts pressure on local authority resources and public funding.  The best independent experts are in heavy demand and the courts may face an unattractive wait before they can report.  The pilot scheme is no doubt designed to address these issues but the key question is whether it can fairly replace the benefit of full expert reporting.

Speak to Rachel Carter

Rachel is a Partner at Wollens and can advise you. Contact Rachel via email rachel.carter@wollens.co.uk or call 01803 396637.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.