F (A Child) (Fact-Finding Appeal), Re [2019] EWCA Civ 1244 (16 July 2019)

At a Finding of Fact Hearing, HHJ Hudson found that petechial injuries suffered by the Child were inflicted by the Father.  

Evidence was heard from the Treating Clinician and expert witnesses, namely a Consultant Paediatrician and a Consultant Pathologist.  The Treating Clinician did not usually act as an expert witness but was willing to give evidence as a witness with expertise and attended the experts' meeting.  

The medical witnesses did not have experience of petechial haemorrhages or areas of sparing (areas with no haemorrhages) of the nature and pattern seen in this case.  The child's presentation was described as incredibly unusual and the Judgment recorded that the medical witnesses had found the case to be exceptionally difficult.  A clear medical cause could not be identified nor could a mechanism to explain the petechiae and sparing in the absence of other injuries.  The Paediatrician and Pathologist did not support inflicted injury as being a probable cause but the Judge's finding was based on the evidence of the Treating Clinician, together with an evaluation of all the evidence and particularly the assessment of the parents.  

The Father appealed against the findings on the basis that the Judge's conclusions in relation to the medical evidence were flawed and that the conclusions reached were not sufficiently explained.  The Court was referred to guidance on the application of section 13 of the Children and Families Act 2014 and Part 25 of the FPR 2010 in relation to the involvement of a Treating Clinician becoming involved as an expert in Care Proceedings.
In the appeal, Moylan LJ gave a detailed summary of the medical evidence and observed that the way in which it was obtained had made the picture less concise.  It was stated, that a summary of the evidence following the experts' meeting, prepared by the Child’s Solicitor for the doctors' consideration and agreement may have assisted in this matter.  

It appeared that the Trial Judge had misrepresented the evidence of the Treating Clinician, as to the probable cause of the injuries and that the conclusion as to the likely mechanism was unsupported by the expert evidence.  

It was recorded that a Judge may make a finding based on the evidence of a Treating Clinician in preference to that of an expert, but in this case the Judge did not sufficiently consider the evidence that did not support the findings.  It was not clear from the Judgment why the Judge discounted the expert evidence which directed away from inflicted injuries or how this was outweighed by the other evidence.  

The appeal was therefore allowed and the Judgment set aside.  The Court, however, was not in a position to determine that the Local Authority’s case had no sufficient prospect of being established and so could not justify dismissing the proceedings.  The Local Authority was therefore permitted to pursue a re-hearing if they wished to do so. 

The full judgment can be read here.

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