Legal Village

A series of unfortunate events with experts

Posted 12/04/2007 by Barbara Hewson

I’m no family lawyer. But litigators everywhere should be aware of what can happen in family courts, which wield huge power over the lives of individuals. These courts have an odd way with expert evidence, which raises basic questions about the rights of the defence.

Consider this scenario, based on a true story. You return home with new baby, the midwife visits him at 11 days and thinks he’s fine, but later he becomes floppy. You go to casualty. Your baby has seizures, which are investigated. Nothing concrete can be detected and finally he goes home.

Meanwhile, the hospital asks a senior consultant neuroradiologist to comment on the results of an MRI scan of the baby. A month later, the consultant suggests the possibility of non-accidental injury. The local authority instructs him to give a report. Your baby is taken into care. The county court won’t allow you to instruct your own expert.

You make three applications for an expert and lose. All the other doctors involved defer to the consultant, who is sole expert by default. You lose on the facts at trial. You are officially a child abuser.

You go to the Court of Appeal. The judge considering the papers agrees that something has gone wrong. So you get an expert, who says the first expert’s opinion “is not correct, is fundamentally flawed [and] is incapable of withstanding logical analysis”.

The case starts again in the High Court and comes on for trial. The original expert becomes unavailable for cross-examination. The judge threatens him with a witness summons. The local authority tries to bail out. The court refuses.

The judge orders a third expert to report, from Sweden. The Swede agrees with your expert. The judge orders a paediatrician to report, who agrees with your expert and the Swede. Then the consultant, whose opinion had started things off, changes his mind.

Finally, the judge declares that you were innocent all along and had “no case to answer”.  He also says the original expert had, on occasion, assumed the child protection role of a clinician.

These are the outline facts of Oldham MBC v (1) GW (2) PW (3) KPW (A Child By His Guardian Jacqueline Coultridge) (Respondents) & W St C Forbes (Intervenor) [2007]. When Mrs W became pregnant again during the case, she had an abortion rather than face more proceedings.

What can be done to prevent similar cases? First, parents accused of serious assaults on children should be able to instruct a medical expert, as of right. How else can their lawyers tell if doctors are talking nonsense or not? It should not be left to the vagaries of judges. Second, treating clinicians with a child protection role should not also act as experts.