(Family Division; Ryder J; 20 March 2007)
The parents were suspected of inflicting a non-accidental injury on the baby. In the course of the care proceedings a finding of non-accidental injury was made, and the parents were separated from the child for 12 months. It was ultimately established that the child was suffering from a rare condition, that there had been no non-accidental injury, and that the care of the child by the parents had always been exemplary.
A family court and the expert who advised it had got the case wrong and it was important to undertake an analysis of what had gone wrong both in terms of expert evidence and court processes. Local authorities should always write a letter of instruction when asking a potential witness for a report or an opinion, within proceedings or pre-proceedings, conforming to the principles set out by the Family Justice Council. When requesting and collating existing materials, all parties should be vigilant to record requests of third parties for disclosure and their responses. It was no longer sufficient, in difficult cases, for the experts to leave the question of whether there should be a forensic second opinion to the courts; the court was entitled to ask whether alternative expert evidence was necessary and if so, in which discipline. Experts ought also to be asked at the earliest stage what questions they thought they or another expert should answer. Experts should be asked not only whether their opinion was mainstream or orthodox, and what the range of orthodox opinion might be, but also whether within that range of opinions the answer might be that the cause of an injury was unknown, highlighting the unusual features of the case that might indicate contrary interpretations. In essence they should take the court through the differential diagnosis, highlighting any contradictory or inconsistent features. The court and experts generally might have become too focused in trying to reach agreed solutions to difficult problems; areas of disagreement might be as important as areas of agreement.