Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
My little grey cells have been working overtime this week. I have been to two extremely interesting Family Law conferences - Introduction to the Court of Protection (also taking place in on 23 May in Manchester) and Medical Evidence in Child Abuse Cases. I'm going to focus on the second of these before the technical concepts are "pruned" as part of my "grey matter maturation" to adopt Dr Vizard's helpful terminology!
The Medical Evidence Conference culminated in an enthralling panel discussion involving the highly respected experts Dr Neil Stoodley, Dr Helen Fernandes and Dr Eileen Vizard, refereed (and at times it did feel that way) by John Vater. It was apparent from the first question about the roles of the different doctors in a forensic context - what do they each "bring to the party?" - that although in a clinical environment doctors work alongside each other in teams, it is not easy to pigeon hole a medical professional when it comes to litigation.
There were also differences between the experts on the subject of "old" and "new" blood appearing on CT scans. It was formerly received wisdom that dark subdural fluid appearing on a CT scan represented chronic subdural haematoma - ie old blood which would be consistent with a previous injury. This might infer a course of abuse if found together with an acute subdural bleed. However Dr Stoodley explained that a possible explanation for the dark fluid is an acute traumatic effusion - a mixing of cerebral spinal fluid with acute blood which creates a dark image on a CT scan but represents just one acute incident. Dr Fernandes had reservations about how often this may occur given it can require the transfer of material from low to high pressure areas and the small volumes of CSF present. However it is clear that the position of a few years ago, when neuroradiologists seeing dark and light areas expressed with certainty that a child had suffered more than one injury, has been challenged and significantly altered. It is quite terrifying that such assumed (and long unquestioned) norms may have resulted in children being removed from innocent parents, and of course begs the question - what other medical assumptions have we simply got simply wrong?
One of those assumptions in the recent past was that subdural haematoma at birth was exceptionally rare. Recent studies have shown that it is much more common and perhaps 47% of babies may have subdural haematoma at or resulting from birth, although it has generally resolved itself by 4-6 weeks. Mr Justice Baker put it to the panel: could it not follow that, in babies of up to six months, subdural haematoma may be present having resulted from birth or some other perhaps innocuous incident? Dr Stoodley's response: it is possible, but unlikely. As I said, terrifying.
But the scariness of our scientific limitation is mitigated by the overall forensic process and the role of the judge to analyse all of the evidence in each case, of which the medical evidence is but one part. As Baker J stressed in his address, medical experts are important witnesses, but they are just that - witnesses. They should not be elevated beyond that position for the sake of all those involved in the case, including the experts themselves.
Given our ever developing scientific knowledge and the consequences of getting it wrong, experts must be open to challenge and we should beware the blinkered expert defending an entrenched position. This highlights the huge importance of the involvement of specialist experienced legal representatives and judges in cases such as these where the stakes are so high.
Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.