LB Croydon v D (Critical Scrutiny of the Paediatric Overview) [2024] EWFC 438
Background
This case emphasises the importance of an expert’s approach to giving factually accurate evidence before the court, and the need for an advocate to have detailed knowledge of the case so that they can robustly and critically cross examine medical experts.
Proceedings were brought by the London Borough of Croydon (the Local Authority), who sought care orders for three children: A (a boy then aged 29 months), and twins H and Y (girls then aged 20 months). The case of the Local Authority was that H and Y had suffered significant harm by way of alleged non-accidental injuries inflicted in the care of their parents (Mr and Mrs D), and the matter was heard by HHJ Kathryn Major, sitting as a Deputy High Court Judge.
In the early hours of the morning on 18th March 2023, Mrs D and H attended at hospital by ambulance following an incident where she had blacked out and fallen on her child the previous afternoon. Upon clinical examination and a number of injuries being found, Mr D was asked to attend the hospital with Y and A, whom he was caring for at home.
A and Y were subsequently examined, and Y was found to have injuries (caused when Mrs D tried to catch her while she was falling out of her bassinet that A pulled over), and A did not present with any.
The issues
To prove its case on the balance of probabilities, the Local Authority relied on expert evidence from numerous professionals, including that of a paediatrician, which is a key role in these types of proceedings. As summarised by HHJ Major at paragraph 94 of her judgment, the duties of the expert preparing the paediatric overview include:
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- “to provide a concise medical chronology taken from the volume of available clinical medical data.
- to clearly signpost the court to the relevant data.
- to properly evaluate the evidence as to whether an injury was inflicted or not.
- not to be speculative.
- to correct errors in their own work and identify errors in the work of others.
- to limit opinion evidence to their individual specialty.
- to revisit past conclusion in the light of fresh evidence.
- and not to remove evidence of relevance from the judge’s determination.”
The expert opinion given in the paediatric report and subsequent addendum was that the children had suffered inflicted non-accidental injuries, which the parents disputed. HHJ Major found that the report read as “subjective, closed-minded and disbelieving of the parents’ account”.
During cross examination by Professor Jo Delahunty KC, leading counsel for the mother, multiple concerns materialised. Firstly, the paediatrician had confused the twins with each other during her reading of the primary medical disclosure; she was unable to explain how this might have happened, had not picked up their differentiating birth marks, she had not undertaken her own recordings of the twins’ head circumferences or weight, and she had not identified that she had confused the twins before she attended a meeting with the other expert witnesses in the case.
Additionally, the paediatrician had misinterpreted the evidence concerning child A, dismissing that he could have caused any markings on the twins, and describing him as being on the 25th centile when A was actually on the 99.6th centile. This led the paediatrician to agree in cross examination that A could have caused injuries such as bruising and scratches, having considered his size, speed and lack of coordination.
When considering the photographs of H and Y that had been taken by the hospital, the paediatrician was unable to clearly explain which she had relied upon in her report, and she referred to bruising on the children’s faces, to which there was no primary evidence of and were said to be marks, and concluded that such injuries must have been inflicted on H and Y by their parents. The paediatrician failed to consider the issue of metabolic bone disease of prematurity, conceding that she could not rule this out and that an expert review would be required, to which HHJ Major remarked at paragraph 116 that “it goes to the core of an expert’s duty to the court to identify area that are beyond their specialism at an early stage and certainly no later than the experts’ meeting.” As this could not be ruled out, it may have been the case that less force was required to cause fractures in the children.
The paediatrician ultimately acknowledged her failures during cross examination and conceded, in contrast to her written evidence, that the injuries caused to the children may have been caused by the mechanisms advanced by the parents.
The oral evidence of the radiologist was also in contrast to his written report, and it was found that the account given by the parents had not been properly scrutinised at the experts’ meeting. Therefore, when giving evidence, the radiologist came to concede that the case advanced by the parents concerning the injuries to H could have accounted for her injuries in terms of force, mechanism and timeframe.
Judgment
In her judgment HHJ Major made the following observations about the evidence of the paediatrician:
- [The paediatrician’s] evidence in cross examination is entirely at odds with her written report and opinion. It is entirely supportive of the case advanced by the parents as to the cause of the injuries to both babies.
- [The paediatrician’s] approach in this case is a cause for serious concern. There are real world consequences for children where the professional medical evidence is flawed, factually inaccurate and lacking in enquiry and analysis. Children could be removed from perfectly safe home environments or alternatively children at risk could remain placed with abusive carers. This case demonstrates the importance of advocates with a detailed knowledge of the case and the facts being able to robustly and critically cross examine experts and fully explore their client’s case.
HHJ Major was ultimately drawn to the conclusion that the Local Authority’s case that the injuries were non-accidental did not meet the evidential burden. The Judge criticised the Local Authority, expressing that they had been unwilling to critically analyse the accounts of the parents, they had not properly engaged with the written expert medical evidence or paused to consider the oral evidence and the impact it had on undermining the Local Authority’s case.
The full judgment dated 20th September 2024 can be found at:
This article has been written by Georgia Bradley, Pupil Barrister. To read more about Georgia, visit her profile here.
Pupil Barristers Georgia Bradley and Andrew Lister will both accept instructions from Tuesday 6th May 2025. Call our clerks on 01482 014658 or email clerks@crown-chambers.com to book.
