News Roundup

Young foster children with emotional or psychological difficulties are to get extra support to stop them getting into trouble at school and help them settle in care placements, thanks to a £3.8 million pilot project announced today by Children’s Minister Kevin Brennan in this press release .

Almost a million parents, children and practitioners nationwide have reaped the benefits from round one of the Parenting Fund run by the Family and Parenting Institute on behalf of the Department for Children Schools and Families (DCSF). The Parenting Fund gave £16 million to charities and voluntary organisations to boost parenting services across the country. It was spent on a wide variety of activities from employing extra outreach staff to help families in rural areas to creating family groups for teenage mums and parents of disabled children. See the Family & Parenting Institute press release .

The DCSF has published plans for the new social work practices for looked-after children. The prospectus includes details about how to get involved in the pilots.

An Ofsted report (pdf file) into the Children and Family Court Advisory and Support Service Cafcass) in the South-East has found the quality of practitioners' work with children and families in private law proceedings is inadequate, primarily due to the delay in providing services.

The Royal College of Paediatrics and Child Health (RCPCH) and the Royal College of Radiologists (RCR) have jointly published a document that sets out important guidance on radiological investigations into suspected non-accidental injury (NAI) in children.

Assessing Risk

Last week I attended the annual London Family Justice Council’s Seminar on Risk Assessment. It was a highly informative day and attended by a wide cross section of those involved in family justice. Of particular interest was the talk given by Prof Don Grubin, Professor of Forensic Psychiatry from the University of Newcastle. In his experience the attitude in USA was very different in respect of experts where lawyers would know the area of expertise as well as the expert and would cross examine much more vigorously. Prof Grubin’s suggestion for the UK family courts was for a single court appointed expert in cases with each party being able to have an expert to advise them on the court appointed expert’s report and areas for cross examination. It was his opinion that lawyers should have a good enough understanding of expert areas to be able to cross examine effectively. When experts talk about “high risk” lawyers should be asking them what they mean by that – is it the same definition that the court is thinking of? He argued that lawyers must challenge standard stock phrases when talking about risk assessment. In particular he said he was an experienced expert and had never been asked in the UK courts (as he was routinely asked in the US) about the instruments that he had used in his risk assessments and it would be the first question that he would ask. What instruments have been used and are they valid? What is the data/evidence to back up that instrument? There are instruments being used for risk assessments which are supported by studies which don’t hold up to scrutiny.

Another interesting point which was raised was whether the use of polygraphs can help in the family courts? (see this link for a general overview). We were told that polygraphs have been used three times in the UK family courts and are 80% reliable. Would you recommend a polygraph to a parent with a success rate of 80%? This article by the Guardian examines whether polygraphs are reliable and discusses how they are being used more than we think. Professor Grubin has writen an article in the British Journal of Psychiatry on polygraphs in the testing post sex offenders. Most interesting was the evidence we were shown at the seminar from studies by Heil et al (2003) on polygraphs where questions were asked about the likelihood of re offending. The studies found that when being polygraphed people disclosed much more information voluntarily on their likely re offending behaviour than when they were not undertaking a polygraph. When convicted child molesters were asked whether they would sexually abuse relatives yes responses went from 16% when not being polygraphed to 65% when polygraphed. The speakers thought that polygraphs would be particular useful in family cases where the issues revolved around “he said, she said” types of allegations.

Dr Gillian Mezey asked the seminar for comments about what makes them chose an expert. Why do we choose X over Y? Is it reputation? Do they have a list? Is it because an expert has been on a particular course? She wanted to work with the Royal College of Psychiatrists to produce some sort of an accredited list of experts as she was concerned that experts could go on a course and call themselves an expert which would give the impression of them being more experienced than they actually were.

Taking on the Experts: Part 1

The main Family Law Week website has published an opinion piece by Dr John Fox of Lamb Building on 'Trial by Expert' . I am entirely sympathetic to his viewpoint which raises many interesting issues. I intend over the course of a few posts to deal with possible solutions to the difficulties he identifies.

Firstly, on Cafcass officers. The rules say (FPR 4.11) (4): A party may question the officer of the service or the Welsh family proceedings officer about oral or written advice tendered by him to the court. Cafcass Officers can be questioned. That means all of them, including a Children's Guardian.

You may need to ensure that the officer is available at the hearing (many courts direct that the Cafcass Officer should be available for the hearing but their actual attendance is to be confirmed at the pre-hearing review). You may also need to ensure that the Cafcass Officer is written to about the hearing dates as the notification to them by the court is not infallible.

The Cafcass Officer's evidence of opinion, including their opinion on the truthfulness of a witness, is admissible. However, this does not detract from the court's ultimate responsibility for deciding on where the truth lies. It is for the court to decide what weight to give the Officer's opinion and any evidence on which it is based. You may wish to consider asking for copies of the Cafcass Officer's notes of interviews to be produced rather than the summary which tends to make its way into the report. This is an unusual step and it is best not left to the final hearing itself.

The Cafcass Officer needs to consider the welfare checklist. This can be a good way of cross-examining. Has each relevant factor been given sufficient weight? Has some vital factor not been considered at all? What research base has the Officer relied on implicitly or explicitly (what, for example, is known about the type or quantity of contact which is beneficial for a child of any given age)?

The Cafcass Officer also needs to comply with Cafcass' own service standards & policies . This can be another line of exploration of the Officer's underlying thinking in cross-examination.

The Court of Appeal gave useful guidance on the role of the court & the Children & Family Reporter in the case of Re M (Disclosure: Children & Family Reporter) [2002] EWCA Civ 1199 .

Here are Thorpe LJ's views:

"(i) The relationship between the CFR and the judge is collaborative. Each has distinct functions and responsibilities in the discharge of which each exercises independently both judgment and discretion.

(ii) If in the course of inquiries in private law proceedings the CFR is alerted to the possible abuse of a child he should consider the following analysis:

(a) Is this either:

(i) a discovery or direct report; alternatively

(ii) is the CFR listening to an account of someone else's discovery or to a second-hand report?

(b) If the latter:

(i) Has the information been relayed to social services or the police already?

(ii) Is there a history or pattern of past complaints?

(iii) How plausible is the report?

(iv) Was the informant a party to the proceedings?

(v) If yes, has he put this statement in evidence?

(c) Would the abuse, if established, amount to significant harm or the risk of significant harm within the meaning of s 31?

(d) Is there a need for urgent action? What are the risks of delay?

(iii) The answers that this analysis elicits should help to decide the appropriate course of action. It will seldom be necessary for the CFR to relay second-hand reports to social services. Furthermore such reports are unlikely to be urgent. Accordingly there will ordinarily be no obstacle to consultation with the judge before taking any action.

(iv) The CFR should always be alert to the danger of being enmeshed in the strategy of the manipulative litigant. The independence and impartiality of the CFR are crucial and if one party perceives that the CFR has taken sides with the other the judge's ultimate task, both to promote the welfare of the child and to impress the parties with the fairness of the proceedings, is rendered more difficult.

(v) Where the CFR makes a discovery or receives a direct report an immediate report to social services or to the police may be indicated. In such a situation the CFR must exercise an unfettered independent discretion. The only rule is that he must inform the judge of the steps he has taken at the earliest convenient opportunity to enable the judge, who controls the proceedings, to consider the impact of the development and the need for consequential directions."

The italics are mine to emphasise yet another possible avenue of challenge.

Suzanne Holdsworth appeal result

Babysitter Suzanne Holdsworth has won her appeal against conviction for murder the BBC reports on the basis of fresh medical evidence suggesting that his death might have been caused by an epileptic seizure. The full judgment is on Bailii . The case has been remitted for retrial.

Angela Cannings Foundation

The Angela Cannings Foundation website is now up and running though still in the building stage. There is an associated forum which is likely to make for lively reading, with Penny Mellor heavily involved. One case the team is tracking is the appeal of baby sitter Suzanne Holdsworth, who was convicted of the murder of a child in her care in 2005. BBC's Newsnight carried a feature on the appeal & the medical issues in which one of the officers who investigated the offence expresses concerns about the quality of the investigation, partly because important evidence about the child having a brain tumour was not put before the jury. The outcome of the appeal hearing is still awaited as judgment was reserved.

David Southall re-instated on register of doctors

The GMC has admitted that it should not have banned David Southall from working as a doctor because it wrongly applied its new rules retrospectively accordingt to the BBC but he remains barred from undertaking any child protection work. He faces a further disciplinary hearing in Manchester from 12th May in relation to breathing tank experiments.

DNA Testing & the instruction of 'experts'

The main website has published a case dealing with DNA evidence: F (Children) (DNA Evidence) [2007] EWHC 3235 (Fam)

The judgment is of interest because it sets out some conclusions arising from difficulties and errors in the DNA testing. During the course of the proceedings, involving several adults and children, it had emerged that there was doubt over the parentage of the children involved. The judge therefore ordered that DNA testing should be undertaken. In the event, it was found that the firm chosen to undertake the testing had procedural defects that meant that the result could not be relied on. A result of a second test, carried out by another firm, was challenged by the alleged parents and so the judge allowed a third test from a third different firm. Their results supported that challenge and the second firm, on review, changed their opinion to agree with the third firm.

In the light of these difficulties, the judge issued this judgment in open court to highlight some of the issues involved in DNA testing and in paragraph 32 sets out a series of points concerning the appointment of DNA testers and what a letter of instruction should contain. He also describes the mechanics of DNA testing, how the difference in opinons between the DNA testers arose and makes some points about their expert role as part of the wider proceedings.

I was fascinated by the case which I think is the first to consider these issues having recently had a case involving two different firms concluding that two different men were the father of the same child. I do not know whether DNA Diagnostics was involved in my case but practitioners would be well advised to read the judgment in full before deciding to instruct or consent to the instruction of any particular DNA testing service. DNA Diagnostics is not on the MoJ accredited list for DNA testing and the court held it should never have been instructed. The Judge was also concerned that the firm's literature gave the misleading impression that it was a large national outfit when it fact it operated behind a number of PO boxes and that it was accredited. The reported case was further complicated by the second two firms instructed appearing to disagree with each other radically when in fact they did not. A salutary lesson in the need to dig a little deeper when instructing experts (see also this earlier post on City University's research on lawyers' use of experts (3/4 fail to check qualifications) and then to be careful exactly what you ask them!

For some scientific background on DNA see DNA From the Beginning .

Experts seek protection from child protection

On the theme of experts (see earlier post about the new Practice Direction), the Guardian reports on Professor Terence Stephenson's concerns about Paediatricians being intimidated against giving evidence in child abuse cases and being vilified for speaking out in high profile cases.

Experts: New Practice Direction

Along with the Public Law Outline (see Family Law Week news item ) a new Practice Direction has been published on the use of experts in cases relating to children which supercedes the guidance contained in the Protocol at Appendix C. The new guidance is to take effect from 1st April 2008 but may be followed immediately if the court wishes to do so. Much of the guidance is similar to that in Appendix C but I will highlight what is new.

• The guidance contains a welcome reference to following the same principles when instructing of experts before the issue of proceedings and broadly takes account of recent judicial views as to what experts should include in their reports (see the judgment of Ryder J in the Oldham case ): experts should be asked to describe any ethnic, cultural or linguistic factors they have taken into account, any research or literature considered, to describe any process of risk assessment or differential diagnosis noting any unusual, contradictory or inconsistent features of the case & highlighting any hypotheses relied on.
  
• There is specific guidance on how the expert should deal with any question on which there is a range of scientific opinion with reference to factors which or support the opinion expressed within that range.
  
• Parties who wish to instruct experts are to submit draft directions dealing with the instruction by 11am on the business day before the relevant hearing.
  
• The guidance provides that it shall be standard for letters of instruction to be prepared, agreed, filed & served by the lead solicitor within 5 business days of the relevant hearing. If parties cannot agree the contents of the letter the guidance proposes a mechanism for the Judge to deal with the letter by email if at all possible, thus avoiding the need for a hearing.
  
• If parties wish to ask further questions of the expert this is supposed to be done by not later than 10 business days after receipt of the report.
  
• There is a detailed section on the arrangement of experts’ meetings (nominated professional to take the lead, agenda by way of a list of questions (which should not be a mere repetition of questions asked in the original letter of instruction) to be agreed in advance, nominated professional to chair, a minute to be taken of the answers to the questions, a statement of agreement / disagreement to be prepared).
  
• At frequent points the guidance reminds practitioners of the need to be considerate of the experts other professional commitments & encourages greater use of video links & telephone conferences to minimise disruption to them.
  
• A key change is that where a party refuses to be bound by an agreement that has been reached at an experts’ discussion or meeting, that party must inform the court and the other parties in writing within 10 business days after the discussion or meeting, or where an IRH is to be held, not less than 5 business days before the IRH and must specify the reasons for refusing to accept the agreement.
  
• Finally, in an annex to the guidance are some suggested questions, drafted by the Family Justice Council for mental health professionals, paediatricians, adult psychiatrists & applied psychologists.
  

The draft letter of instruction on 4 Brick Court’s website has been amended to take account of the Practice Direction and includes possible questions to experts from other sources as well as the FJC questions.

Southall struck off

The GMC has decided that Professor Southall is guilty of serious misconduct and struck him off the medical register. This story is widely covered including by Sky News , the Guardian , & the Times to name but a few.

After the verdict, Jacqueline Mitton, the chairwoman of the panel, told him: “Your multiple failings over an extended period caused the panel great concern. . . . in all the circumstances the panel has concluded that you have deep-seated attitudinal problems and that your misconduct is so serious that it is fundamentally incompatible with your continuing to be a registered medical practitioner."

Patricia Hamilton, President of the Royal College of Paediatrics & Child Health, has said that the college is saddened & disappointed by the verdict. Health care professionals have a duty to act if they fear that parents have harmed their children and she expressed concern that the verdict may put paediatricians & social workers off performing child protection roles.

I do not understand this reaction. When one analyses the misconduct found against Professor Southall (by an independent tribunal before which he was more than competently represented, not only in this round but previously in 2004), it is difficult to see how this could be characterised as a health care professional acting on legitimate concerns in a properly professional manner. He has now twice accused a parent of murder without any proper evidential foundation and kept secret files on children containing materials which were then not available to their treating doctors. He previously accused Sally Clark's husband of murder, based on a tv interview alone and when he was prohibited from conducting child protection work. He did not at the current hearing or previously and has not in any interview expressed any remorse or regret about his working methods. Approaching a case with respectful uncertainty, as recommended by the Climbie enquiry, does not mean leaping forward and making accusations of ill-treatment, simply that one keeps an open mind and examines all possibilities. Professor Southall was rebuked by Mr Justice Collins for not having the sense or humility to withdraw his seriously flawed allegations and he just does not seem to be listening to anyone.

Numerous doctors and professionals are the subject of disciplinary tribunals and many have had an otherwise impeccable track record before their fall from grace. By all means, let us acknowledge the previous good track record, where it exists, but it cannot be right to pretend that this makes up for a serious professional misdemeanour, particularly when it strikes at the very heart of the professional role. There is no reason why Southall's disciplinary fate before his profession's panel should put off competent professionals from doing their job in child protection, even if, try as hard as they might, they make the odd mistake from time to time. Experts often say in care proceedings that they are unable to work with parents who will not acknowledge any wrongdoing. It is this failure to acknowledge any failure that has been Southall's undoing.

Sleepless nights for Southall? Expert in hot water again

The unrepentant Professor Southall has been found guilty of misconduct by the GMC in accusing a mother of drugging and murdering her 10 year old son. The GMC also found that Professor Southall had interfered with the integrity of medical records by removing documents which he put into his own secret collection of "child abuse" cases. The GMC will apparently be considering the case further to decide whether this constitues serious professional misconduct & what penalty to apply. For further details see the Times & the Guardian & & This is London . Here are links to the full transcripts of the GMC hearing . For a more controversial take on the life & times of Professor Southall see the Dr David Southall Exposed blog with some contrary thoughts on Jonathan Gornall's blog . For a very personal perspective see Lawrence Alexander's blog .

Extra experts

Two cases earlier this year illustrate the differing and sometimes unpredictable attitude of the courts to the instruction of experts. In M-M the Court of Appeal refused to allow the instruction of an additional expert to carry out a test for ostogenesis imperfecta in circumstances where one of the experts currently instructed had suggested it, not on clinical grounds but on forensic grounds ie to assist the court. The court considered that it was not for the experts to decide what was forensically required and that the test which would costs £5,000 was not justified when it would only establish OI in 1% of 300 cases where there were no other signs & the test was only 90% accurate. In the other case, Re B , the Court of Appeal allowed the instruction of a fourth expert in care proceedings, notwithstanding the fact that the opinions of the first three were against the parents, they having been experts instructed when a previous child was removed from their care. At the door of the Court of Appeal the mother gave instructions that she would separate from father and wished to be assessed as a sole carer. The mother was given leave to instruct the fourth expert on the basis that parents facing the removal of a child must have confidence in the fairness of the family justice system whilst at the same time, if the fourth expert agreed with the other three, this might short circuit the final hearing.

Are the Experts expert?

The Times reports on City University research which shows that 3 out of 4 lawyers fail to check the qualifications of their experts. The research authors call for a change in the rules to ensure that training and qualifications are taken into account before experts are selected. Of course, this is supposed already to be considered under the Protocol. However, I cannot remember the last time a Judge actually asked to see the expert's cv if all the parties were agreed that a particular individual was to be instructed. It may seem that there is some protection afforded in choosing an expert who is accredited, for example by the Law Society. But there is much more to it than that. It is important to consider questions such as how far away from clinical practice the expert is and what training they may have had in giving evidence in general and in family cases, in particular. I am also aware that a number of experts are assumed to have an expertise in a certain area simply because they regularly appear in the family courts eg a certain Psychiatrist who is assumed to be a Child & Adolescent Psychiatrist when in fact she is a Consultant Psychiatrist in Psychotherapy or a certain Paediatrician who describes himself as a Forensic Paediatrician when there is no such qualification which is formally recognised, a certain Psychologist who is regularly asked to assess learning disabled parents when her clinical expertise is in the field of the elderly etc etc. And what pray is a Paediatric Neuroradiologist or a Consultant in Paediatric Bone Disease? Two resources which may help are the recent article by Chris McWatters on expert directory websites on Family Law Week and this Guidance on Type of Expert & Qualification on the 4 Brick Court website (where you will also find a an updated draft letter of instruction to experts . Your top tips for how to avoid pitfalls in instructing experts would be welcomed.