(Court of Appeal; Thorpe, Gage and Toulson LJJ; 16 May 2007)
The parents initially had no explanation for the child's bone fractures, one of which was rare. At the fact-finding hearing the mother suggested that the child might be suffering from a rare bone condition and obtained leave for an expert in the condition to examine the child. The expert concluded that the proposed diagnosis was extremely unlikely, as there was no evidence of a family history, and no clinical signs of the condition. He recommended, however, that genetic testing be carried out; the test would take 6 to 8 weeks and cost £5,000. The judge considered that there was no forensic justification for the test and dismissed the application. The mother appealed arguing that in the interests of obtaining best evidence, the test should be allowed.
It was very important to draw a clear boundary between a medical decision as to what was clinically required for the treatment of a child, and a forensic decision as to what was necessary to ensure the proper determination of an issue. A forensic decision was a case management decision for the judge. The expert had not been expressing a medical opinion on clinical grounds, but a forensic decision, and had been trespassing on judicial territory. The judge had made the right decision. There had to come a time at which the evidence was sufficiently full and thorough to enable the court to make a decision on the balance of probabilities. The benefit to be gained by subjecting the child to the test was not large enough to justify the considerable cost in money and time.