Family Court a law unto itself?

By now the press are reporting widely the case of Alas Al-Wray (FD10C00445 LB of Islington v Al Alas and Wray Approved Judgment 19 April 2012). Not many other than lawyers will have the fortitude to get all the way through the judgment, which is extremely lengthy and medically technical. But it is a shocking and very sad story and it is hard to imagine the awful ordeal that these two young parents have had to endure. I briefly saw a BBC interview with them, and they were dignified and brave. I hope very much that they are offered support to integrate their daughter into their family at long last.

I was struck though by a commentary piece by Camilla Cavendish in yesterday’s Times in which Ms Cavendish suggests that this is a case demonstrating how things have gone wrong. Yes, this is a case where things have gone terribly wrong from the perspective of the parents and the child concerned. But is it a case which demonstrates how the system has gone wrong?

Ms Cavendish states that “As Mrs Justice Theis’s judgment implies, Rohan Wray and Chana al-Alas might never have suffered in this way had social workers and experts not rushed to think the worst“. I don’t think that is what the judgment implies at all. The medical experts on the ground were at the time clearly indicating the possibility, indeed likelihood, of non-accidental traumatic injury. What were the social workers to do, reliant as they were upon expert medical evidence? That the weaknesses in the medical evidence and opinion have been exposed was a result of the exhaustive criminal and family proceedings processes, only just concluded. Cavendish wonders “How can it have been in the little Jayda’s interest to be wrenched from her mother and placed in care for 18 months?” But she neglects to mention that the criminal proceedings were ongoing until acquittal as recently as 9 December 2011. The care proceedings, which concluded this week, were ongoing for only 4 months above and beyond that prosecution and in that space of time vast resources were ploughed into a hearing of several weeks duration involving the most eminent experts in a range of fields and a raft of highly experienced counsel – in order to ensure that this child was not removed permanently from her parents unless it was truly justified. It is easy to say now that it was not in her interests to be removed, but neither the court nor social services have the luxury of hindsight when making decisions designed to protect children who may be at very serious risk of harm.

Cavendish asks, apparently rhetorically, “How can Islington Council have continued to imply that the parents had killed her brother, after they had been cleared at the Old Bailey?” But there is an answer which deserves to be stated: because the Local Authority has a statutory duty to protect children, and in cases where there is medical evidence supporting this kind of fatal non-accidental injury it is the responsibility of the Local Authority to put the matter before the court for a finding.  Had the Local Authority adopted a “pick and choose” approach to the widely varying medical opinions it would have run a very serious risk of picking the “wrong” answer.

This criticism of the process is partly borne out of a misunderstanding of the nature of an acquittal. Elsewhere in the piece Cavendish refers to “a verdict of innocence“. Of course no such thing exists in this jurisdiction. A verdict of “Not Guilty” is emphatically NOT a verdict of innocence. It is confirmation of the fact that the case could not be proved beyond reasonable doubt. Mrs Justice Theis’s findings, based on the balance of probabilities, are closer in nature to a “verdict of innocence” than is a criminal acquittal, and it is as a result of her findings that the Local Authority’s power to hold this child in foster care has been revoked.

If we want family courts to treat acquittals as a “verdict of innocence” rather than considering the matter on the balance of probabilities then there must be statutory reform through Parliament to enable the courts to take that approach. But to do that requires us either to adopt the view that all those who “get off” are innocent (think Stephen Lawrence case), or to accept the risk that children will be returned to abusive and potentially murderous parents. Is that what we want?

This case is a reminder of the complexity of these cases, and of the fact that much is unknown even for the most expert in their fields. It is right that the judgment should have been published in full: to vindicate the long suffering parents, to air the failings of the treating medical professionals and to allow public debate about the medical complexities arising. But also for another reason: to demonstrate that the family court works hard to produce the right outcome, even though the process is full of anguish for all concerned.

36 thoughts on “Family Court a law unto itself?

  1. Why hasn’t anyone been charged with manslaughter?

    It’s in the public interest; there is ample evidence of an inability to diagnose vit D deficiency.

    Any ideas?

    • I don’t imagine that there has been time for such a charge to be brought since the judgment (and possibly even if one takes the date as the criminal trial). But more importantly I don’t read the family judgment as of itself providing sufficient evidence to clearly support even a negligence claim, let alone a manslaughter prosecution (neither are my area but that’s my gut reaction). As I read it there is evidence of some failures on the part of medical professionals but the question of whether those actions caused or contributed to the death is likely to be a very complex one.

  2. Lucy

    Sorry, but I don’t agree with this. It is a basic principle of English law that the criminal courts trump the civil courts. Therefore a verdict based on the standard of beyond reasonable doubt should have meant that there was no hearing in the Family Court at all, particularly as all the medical evidence had already been heard in the criminal court and there was nothing to be gained by going through it again. All it did was add to the parents’ grief and sense of injustice.

    This is just an incidence of jobsworthness on the part of the social workers, who weren’t happy at losing in the criminal courts so attempted to get a verdict they did like at the lower balance of probabilities standard. This was a breach of the rule called autrefois acquit and was also a breach of the right to a fair trial and the right to respect for family life.

    The Family Courts have no right whatsoever under English law to seek to reopen a judgement handed down in a criminal court, and this is what the judge in the family court should have said just before ordering the immediate return of the surviving child and threatening the social workers with a charge of contempt.

    • Gladiatrix,

      What you put forward is one view of what the law should be but it is not in fact an accurate reflection of the current legal position. The criminal courts do not trump the civil courts in the way you suggest. However, where a criminal court has convicted, that conviction will be accepted by the family courts as evidence of guilt – it stands to reason that if a court has found beyond reasonable doubt that x has happened, it must also be more likely than not that x has happened – and so it would serve no purpose for the family court to repeat the exercise. The same does not apply in reverse. It is quite possible for it to proved that it was more likely than not that x has happened even if it is not possible to show it beyond reasonable doubt. And Parliament has enacted legislation for the purposes of child protection that requires the court to make decisions about risk based upon the civil standard (balance of probabilities). So it is a misunderstanding to suggest that the family courts are reopening a judgment handed down in a criminal court – there was no judgment in the criminal court, only a direction from the judge to acquit because it was self evident that the criminal standard of proof could not be met. Autrefois acquit does not apply. I think it difficult to argue that the right to a fair trial is breached when matters have been dealt with so exhaustively by the family court and concluded that the case was not made out. The right to respect for family life is not an absolute right, else there would never be any lawful basis upon which children who were being seriously harmed or abused could be protected from their abusive family members.

      On your second paragraph – social workers do not prosecute criminal matters. Nor do they drive such prosecutions. A charging decision by the CPS will be taken based upon whether or not it is more likely than not that a conviction will be secured. The CPS do not charge on the say so of a Local Authority or without reference to the evidence. My understanding of the criminal proceedings is that whilst the prosecution evidence was clearly pointing towards non accidental injuries it was the subsequently obtained defence evidence that shed doubt upon the non-accidental injury theory. If that is right it was the pursuit of a prosecution that enabled the parents to obtain independent expert evidence to bring to light what had really happened. It is arguable that had the criminal proceedings not been pursued at all the parents would have been in a rather more difficult position come the fact finding in the family proceedings, depending on what experts had been commissioned through those proceedings.

  3. Lucy

    I didn’t say that social workers bring prosecutions, what I said was they they didn’t like the judge’s direction in that case (as you put it) and so tried to have a second bite of the cherry.

    Given that the defence evidence submitted and accepted by the judge in the criminal trial made clear that the dead child had not died as a result of being shaken but because of undiagnosed rickets I repeat that there were no grounds for bringing a case in the Family Courts. The second trial, regardless of standards of proof, just added to the family’s misery and delayed the return of their surviving child for no good reason.

    Bringing a second trial hoping to obtain a verdict that you like as the local authority when a previous trial has already dealt with all the evidence is a breach of the right to a fair trial because it is an abuse of the courts system, and of the parents’ right not to be subjected to legal harassment.

    • Gladiatrix, What you said was “This is just an incidence of jobsworthness on the part of the social workers, who weren’t happy at losing in the criminal courts so attempted to get a verdict they did like at the lower balance of probabilities standard.” (my emphasis) To me that implies that the social workers were taking some kind of active role or interest in the prosecution. You seem to hold the view that the actions of the Local Authority were some kind of maliciously driven course of action, with no legitimate child protection purpose. If a Local Authority took no action to protect a child in every case where there is either no charge or acquittal they would be in dereliction of duty and in the fullness of time a child would be harmed or killed as a result of that inaction. You can repeat that there were no grounds for bringing a case in the Family Courts, but it remains the fact that the bringing of an application in circumstances like these is part of the function of a Local Authority as given to it by Parliament, and it is part of the function of the court to deal with such an application. I agree that the second trial added to the family’s misery and delayed the return of their surviving child. But I take the view (as does Parliament) that it is better to be safe than sorry whilst the court establishes if it is safe to return. If as a society we want to change that we need to amend the law rather than complain about courts and Local Authorities who are following it. That is not to say that courts and Local Authorities get things right all the time, but in this instance what you have identified is that you are in disagreement with a longstanding piece of public policy viz a viz child protection.

  4. Gladatrix. I’m afraid you are wrong. THe criminal case is brought by the CPS who have a statutory duty to prosecute if there is a reasonable case and it is in the public interest to do so. The jury returned a verdict of not guilty – that is to say they were not sure of guilt.
    Plainly that result does not answer the question of whether there was any basis for believing the children’s safety was at risk. Now, that outcome MAY have been apparent from the evidence in the criminal case, but Theis J did not say so. On that basis, the Local Authority has to chose between its own statutory duty – based on the overriding need to ensure child protection – and the distress of the parents. It isn’t a nice choice but it is difficult to see that what they decided was wrong.
    I am not sure why you are so ready to attribute that difficult decision to malice on the part of the social workers. Do you know them? What is your basis for saying that they acted maliciously, or in pursuit of their own interests? If you have no basis for making that allegation then why is it ok to make it?

  5. I don’t read the family judgment as of itself providing sufficient evidence to clearly support even a negligence claim

    I have been led by the media reports rather than any other evidence. The impression was given that vit D deficiency was a simple diagnosis.

    • Gyges, I don’t think a Vit D deficiency necessarily equates to Rickets (nor does it tell you the severity of the rickets). I think that to establish negligence you would need to establish that the medics ought to have picked it up (it sounds at least possible from the judgment that many if not most competent medics would have been likely to make similar mistakes since it is not routinely looked for in the UK these days). You would need to establish that the failure to diagnose the rickets had some causal reltionship with the death – and whilst the rickets appears to have been a contributing factor in the death it’s not obvious from the judgment that knowing about the rickets in advance would have necessarily made sufficient difference to the treatment to enable the child to survive. Manslaughter would be a more difficult case to make out I think.

      I say all of this based on a single through-reading of the judgment, and with no expertise in personal injury law or criminal law, but I think we can say that there are no obvious answers in case with this degree of medical complexity and novelty – if there were it would not have taken this long to conclude.

  6. I have worked for several local authorities and I am afraid that social workers often simply take a dislike to a particular parent, and won’t accept that the parent is not actually doing anything wrong. If there were no personal element involved in cases where a local authority is a party the Local Government Ombudsman would have nothing to do.

    The CPS would only have brought a prosecution in this case because of what the social workers said to the police, and social workers and local authority lawyers do take an active interest in the outcome. That is just human nature, to suggest that they somehow rise above the fray is naive. You may recall the family case reported a few months when a ruling that a child be put into care was given and the social workers involved in the case were seen by several eye-witnesses to exchange ‘high fives’ with each other.

    This case worries me because it is widely known amongst GPs that women whose ethnic background is Asian (i.e. Indian Subcontinent) are prone to Vitamin D deficiency when living in this country due to the prevailing lack of sunlight for extended periods. Large numbers of these women are routinely prescribed Vitamin D supplements. Yet not one of the social workers or doctors involved seemed to have given this a moment’s thought. On top of that none of the social workers or doctors appeared to recognise the symptoms of rickets. Given the mother’s ethnic background it should have been one of the first things they considered.

    Off this particular topic but my local town council is currently in dispute with an allotment holder. It is clear to everyone who has followed the case that this is a matter of personal antipathy between individuals which has got completely out of hand, and the town council is unwilling to back down and admit that it is in the wrong. I strongly suspect that something similar happened in the Al-Alas case.

    • Gladiatrix, I’m not naive and I’m not saying that what you describe doesn’t happen but I’m not sure it has happened in this case – if it has it’s not demonstrated in the judgment. The judgment suggests that the prosecution arose as a result of the medical view rather than any social work view. There are some questions to be asked about why the Vit D deficiency was overlooked either in life or at the time of crisis. I’m not sure that the allotment story takes us much further. Yes, people get things wrong and refuse to admit it – that’s human nature. But that doesn’t help us answer questions about this particular case.

  7. Surely was it not clear that Theis J found that the Hospital’s care was deficient and lacking. (What other reason for the Trust needing a medical case review from an outside expert from Birmingham CH – whose whitewash appears to have stuck)

    Failing to intubate for more than two hours (and the apparent lack of notes over a four hour period), amongst other things, should appear highly suspicious, even for an uninformed member of the family bar.

    It was rather fortunate that the trainee GP referred the case onwards – otherwise he / she would have seen her career terminated instantly (whereas an error legal oversight in the wider confines of a hospital – where the blame can be spread).

    And it is rather fortunate that the Parents actually went quickly to the Surgery and thence to Hospital – otherwise they would have been surely convicted of Murder. The hospital would not have bothered to commission that extensive an array of evidence and the hard pressed barrister would have washed their hands of the case soon after.

    Further the (other) Child’ Guardian was hardly bothered to particpate in these proceedings, the cost explanation readily accepted by esteemed commentators.

    There appears much missed in your legal commentary as there was in the medical care.

    • Rob,

      I don’t propse to get into a detailed hypothetical argument about alleged hospital negligence. I’m not a clin neg lawyer but I do know that negligence law is a deal more complex than “Where there’s blame there’s a claim”, particularly in the field of head injury.

      On the role of the Guardian: the Guardian had I think been involved in the instruction of a number of the medical experts as is common, and her solicitor will have been the lead in that, but the Legal Services Commission had as I understand it declined to pay for her to be represented at the fact finding hearing. This is not uncommon in more straightforward cases where a Guardian can add little to a fact finding exercise but, as the court noted, was probably unhelpful in a case of such complexity. The cost explanation is a very real one – the Legal Services Commission are always finding new ways to keep their costs down, whether it be through refusing to pay for the instruction of experts or otherwise. Your comment implies that you doubt this is the case – do you think that the solicitor for the child misled the court in this regard? This seems to be the logical implication of what you say.

    • Rob,

      I don’t propose to get into a detailed hypothetical argument about alleged hospital negligence. I’m not a clin neg lawyer but I do know that negligence law is a deal more complex than “Where there’s blame there’s a claim”, particularly in the field of head injury.

      On the role of the Guardian: the Guardian had I think been involved in the instruction of a number of the medical experts as is common, and her solicitor will have been the lead in that, but the Legal Services Commission had as I understand it declined to pay for her to be represented at the fact finding hearing. This is not uncommon in more straightforward cases where a Guardian can add little to a fact finding exercise but, as the court noted, was probably unhelpful in a case of such complexity. The cost explanation is a very real one – the Legal Services Commission are always finding new ways to keep their costs down, whether it be through refusing to pay for the instruction of experts or otherwise. Your comment implies that you doubt this is the case – do you think that the solicitor for the child misled the court in this regard? This seems to be the logical implication of what you say.

  8. Lucy,

    Where the parents’ representatives were presumably strongly alleging negligence (initially) on the part of the Trust; it is noticeable that Theis J barely devotes more than a couple of lines in a 67 page judgment all the while accepting this complaint was made out. If anything, it appears this was finding was very reluctantly made, if the Judge truly had the Child’s welfare at heart.

    It was well reported that the Pathology evidence absolved the parents of NAHI. While at the CCC, it was said that the closeness to the hearing and the absence of notes meant the other medical experts evidence was defective, though not negligent; Barrister Mark Love, presenting the LA’s case at the later care proceedings, would have none of these excuses for failure to think through these shortcomings in the medical evidence. It is these failures of the LA’s case that Cavendish criticises validly. I am sure that you can raise all manner of reasons for Love’s failure to follow through the inconsistencies in the medical evidence he re-presented; but the public patience should be wearing thin with such excuses.

    I understand that you would be reluctant to criticise a fellow professional but surely there appears to be sufficient evidence of obvious oversights – one of the parent’s solicitors seems to have said much the same thing. Do you agree?

    It might appear that your criticisms of Miss Cavendish are dogmatic to a degree. You seem to dismiss the case as one off, unique or complex – however the failings identified in the relevant experts reports here should at least be troubling when assessing all the other reports these experts have previously produced.

    Theis J’s judgment contains a number of other criticisms of the LAs approach, including that of the Guardian, that you do not seem to accept or consider important. It seems more members of the family bar need “robust encouragement” to fix these self evident faults.

    • Rob,
      1 Counsel for the LA was not acting in “defence” of the medics. The LA is tasked with asking the court to find the facts one way or the other where that is necessary for child protection purposes. It was for the LA to put the case in the hands of the court, and for the court to think through the shortcomings in the medical evidence. I’m not reluctant to criticise a fellow professional, I just think you misunderstand the purpose of the hearing and the role of the parties.
      2 The case was not a negligence case. It was a fact finding exercise the sole purpose of which was to try and establish whether or not the injuries were non-accidental, and if so how they were caused and by whom. This is why Theis J does not deal with the question of negligence – it was not what the hearing was about and it would have been inappropriate for her to have made findings of negligence against bodies or individuals not party to the proceedings (individual medics were witnesses but not parties / represented).
      3 If it were that straightforward to identify and prove the issue I think it unlikely that the trial and the judgment would have been so lengthy and complex. I lost count of the number of medical witnesses.
      4 You suggest I’m dogmatic. The fact is that the case is a uniquely complex one. I’m not commenting on other cases.
      5 I don’t understand your final paragraph, in which you seem to think that the Guardian is part of the LA. The judge as I read it does not criticise the Guardian, rather she criticises the LSC for failing to allow her to be represented.

  9. The Times quite rightly described the role of social services and the process of the family court as being “cruel” in case of Ms Chana al-Alas and Mr Robin Wray (editorial 21/4/2012). This case involved a misdiagnosis of the fatal consequences of rickets as being serious child abuse. Sadly, such cruelty is not unique to this case (e.g. the Webster family in Norfolk).

    Another appalling case occurred in L’Derry, Northern Ireland when Louise Mason’s children were taken into care after she was falsely accused of harming her four-week-old baby. The children were fostered and social services tried to put them up for adoption, even after Ms Mason was acquitted in the criminal court of all charges against her. It later transpired that the ‘injury’ to the four-week-old baby was a child cancer that went into permanent remission. How this was eventually discovered is startling, and was the culmination of a horrifying child protection process.

    What is remarkable is that Louse Mason has written a book that graphically outlines her experience of the cruelty of the child protection system. The reference is: Mason, L. (2009) A Mother’s Nightmare: My Fight To Get My Children Back. Belfast: Blackstaff Press.

    This book should be compulsory reading for all social workers. I doubt that very few have come across it (and that it is not on social work training course reading lists). Highly recommended.

  10. There’s an excellent summary of the case on Family Law Week here.

    With respect to all those seeking simple conclusions, there aren’t any.

    1) While the care given by the medical practitioners failed to save the child’s life, and better care might have, that isn’t clinical negligence. I’m no PI expert, but from what I recall from my Tort lectures way back when, you have to hit falling below the standard expected of a reasonably competent doctor. Generally, following usual practice will indicate there is no negligence.

    In any event, that wasn’t the question for the court. The question of negligence—if a claim is brought—will require a whole new raft of experts.

    2) I can’t meaningfully summarise the evidence in this case. It is extremely complex. Honestly, I don’t understand a lot of the detail of the medical evidence. The suggestion that the decision to not to terminate the care proceedings indicates malice or incompetence in the LA is not supportable.

    Let me put it this way. If someone said to me, “Right Mr. N, you have a duty to protect this child. Read all this evidence, decide if you think the she is likely to suffer significant harm as a result of the parenting, have regard to your duty and decide if we’re going to issue care proceedings,” then the fact that a jury could not be sure that the parents had intentionally caused the death (or intended to cause GBH to) the brother wouldn’t discourage me from having the case for care put to a judge.

    There are a handful of cases, of which I believe this is one, that cannot be decided without trial, forensic cross-examination and an experienced judge. And there are a handful of cases that fly over the “medical fact” fence and land squarely in the wilderness of medical opinion.

    3) Lawyers generally translate the terms “clearly”, “self-evidently”, “manifestly” etc to “I have absolutely no evidence for this, but I’m going to assert it anyway…”

    4) The logical corollary of the proposition that counsel for the LA should be criticised for a “failure to follow through the inconsistencies in the medical evidence” is that counsel who appear for parents ought to be criticised when they defend parents in care order cases where the evidence they attempt to lead is inconsistent…

    Trial by counsel is an ugly proposition. Usually advanced by those who would not have the issues judicially determined at all. That seems like dogma to me.

  11. It is surprising that the number of comments that disparage Camilla Cavendish’s views; and / or support the Local Authority’s actions (and implicitly the role of the Family Justice System) also say that they cannot quite follow the medical evidence. I find this surprising (and evidently more of a problem nowadays) with Family Barristers

    To the commentary given by Jo Delahunty QC (link above), one of the defence solicitors has made comments on the case, as did the Mother. Further Camilla Cavendish and the Times appear to have attended Court – though I am not sure if Lucy had.

    There might be legal differences between the role a judge discontinuing proceedings before the CCC plays as opposed to what a judge in the fact finding stage of family proceedings might have regard to; but, applying the medical evidence in this case, as led by the Local Authority, there was essentially no difference in what the Judge was being asked to do. This explains the defence solicitors’ criticisms of a duplication in cases being against the parents.

    The Mother herself criticised the role of the Child Protection Process in interviews. Having been excluded from UCH (once the “system kicked in”), the Mother complained why the Child was effectively parked for some 4 hours without treatment while being apparently scanned – i.e. why was the duty social worker / child protection lead doing not doing anything? I find it surprising that Lucy has not answered this complaint.

    As the Family Law Week case commentary confirmed, omissions of care in this window proved a vital part in the defence case. Essentially, the Child deteriorated in this period (or even suffered some of the injuries that the parents were accused of causing). This point is made out by Delahunty QC if anyone could not follow the Judgment.

    (The recent phenomenom of parking patients like this is not rare, either in UCH or in other secondary care centres) as was accepted by the Judge, before anyone says that this was a one off case).

    It is trite to say, as Lucy and Jim implicitly does, that the Child Protection System worked at the point of Theis J’s judgment when the Child dies by a lack of action on the part of same system in the Hospital some 20 months previously.

    Further, the family’s solicitors complaints that the evidence of the Local Authority had not advanced from this important yet snapshot event in that period also indicate a clear indifference on the part of local authority, if the more continuous task Child Protection was their goal.

    • Rob,
      I didn’t attend court. My original post related to the judgment and to a short comment piece by Camilla Cavendish. I don’t know if The Times were present throughout or just at the hearing concerning permission to publish.
      I’m not sure who has said they cannot follow the medical evidence. I have been reluctant to assert that negligence is made out on the basis of the judgment alone, and I agree that Jo Delahunty QC’s case summary on Family Law Week places matters in a clearer context. I agree with the conclusion of that summary that this case requires serious questions to be asked, and the suggestion that it has implications both for medical practice and other NAI cases. I agree that the case commentary on FLW confirms that omissions of care were vital to the defence case.
      You are surprised I have not answered the complaint as to “why was the duty social worker / child protection lead doing not doing anything?” (in the four hour window). I’m not sure why you feel this is for me to answer. I don’t know the answer, in fact it’s not clear to me whether at that stage a social worker was involved (I’m afraid I don’t have time not to go back and cross reference the judgment).

  12. A principal concern about both the criminal trial and secret Family Court hearings was that [edited for legal reasons]

    This isn’t necessarily unique; other cases in the past have occured, such as a failure to diagnose a cancer in a child, where one of the parents (invariably the monther) is accused of MSBP. The Jayden case though is a ‘perfect’ storm; an instance where everything went awry. The case also highlighted the modern tendency towards authorities trying to pursue a conviction or finding for a ‘no-crime’ – that is an accusation of murder or another serious allegation, when in reality no crime had occured. SBS, with its dependance on ‘special pleading’ is one of those.

    Jo Delahunty QC’s report on the case is perhaps one of the most significant of modern times;

    ‘The key period in understanding Jayden’s decline and death was identified as being a four hour period after Jayden’s intubation when he moved between different imaging departments at UCH without effective management of his seizures or his CO2 levels. In this period, seizure medication was drawn but not administered until the retrieval team arrived at 6pm. On intubation the tube had been wrongly placed causing one of his lungs to collapse but this was not identified for at least 20 minutes. After this Jayden’s CO2 levels had risen to dangerous levels but by then he was probably en route to or at the radiology department and it was unclear when the tube had been correctly positioned. By the end of the afternoon when the retrieval team arrived, his condition had deteriorated to the extent that there were clear signs of raised ICP which the team struggled to control, even with very aggressive treatment. Expert evidence, (although contradicted by Dr Peters) suggested the fluctuating CO2 levels and raised ICP could have contributed to his deterioration, as well as the hypoxic-ischemic injury he suffered. Both ophthalmologists agreed this could have been the cause of his retinal haemorrhages.’

  13. Lucy

    You might claim that you accept the lessons in FLW over how lawyers should assess and interrogate medical (or scientific) evidence; but noticeably your language and criticisms show that you have little insight into how to assess this type of evidence or their essential differences.

    It should be surprising to learn from Theis J’s judgment that she needed to set out something of a primer to the LA on how to conduct a scientific inquiry of the medical evidence presented. This scientific interrogation of evidence has a different basis from the legal interrogation of evidence that should ideally be carried out afterwards. In your own idiom, these thought processes should be bleedin obvious

    You appear (along with a number of family barristers) to fail to appreciate this necessary yet parallel interrogation that Family proceedings involve and the intellectual skills these demands.

    A consequence of this is that you say it is acceptable to elevate impressionistic sometimes peripheral suspicions into firm evidence (of NAHI or any other medical hypotheses which is on trial) when in fact you should be aware there is no evidence, in the proper sense. This error could render a fact finding hearing meaningless, if mere initial suspicion was enough (not to mention bringing criminal proceedings into disrepute if that same suspicion was enough to put a jury verdict for murder – at the case’s most extreme point)

    If you had done this scientific inquiry into the medical evidence (for which increasingly medical knowledge is useful), you should have concluded there was no evidence to support a finding of parental caused NAHI either before the CCC or the Family Court (as opposed to saying that there was a difference of medical opinion). This was the duplication criticism of people like Cavendish who in turn your original article incorrectly objected to.

    I had thought you article was originally was something of a in joke till one read your comments.

    I believe the Judicial Studies Board noted in 2006 that Judges have few avenues over how to assess medical, technical or scientific evidence, the “training” offered through a career in PI marginally useful. I have not picked up any Standard Work on Legal Evidence recently but I do not recall any special section on how one must conduct a scientific inquiry (one would have thought this was hardly needed if one had a general standard of education). Yet Jo Delahunty QC’s case note appears to say that this is required.

    And in you criticisms of Cavendish, by failing to interrogate the medical / scientific knowledge appropriately; you continue the impression that her reporting of concerns over teh operation of teh family justice system are unfounded. I suspect a liberal arts edcuation might explain some of this but still, having apparently practised at the Family Bar for over a decade, surely you should be able to note the inconsistency?

    If you were making the argument for the LA in these proceedings, you would, given how the defences case was by then revealed, if you were applying the lessons of Delahunty, have to set out a working scientific hypothesis that explained why what Theis J noted about sub optimal care as well as the Coroner’s forensic evidence was of no effect (a very high bar). Delahunty QC criticises the LA’s case when they merely avoided dealing with these inconsistent results whereas a rigourous scientifically informed case should have addressed these concerns (and Theis J’s judgment ideally should have dismissed this theory advanced prior to finding there was no evidence to meet the threshold criteria – as opposed to going straight to that finding)

    Essentially you appear to equivocate over whether Delahunty QC’s concerns about the LA’S approach are correct (in your comments) or whether the LA’s misidentification of threshold evidence could be criticised (which you say are without reproach in your original article).

    Lazy headlining or a Geek Lawyer error?

    • Rob,

      You evidently do not have a very high opinion of the family bar in general but I am not sure if you are a medic, a lawyer or something else. I do have a liberal arts degree. But as you may imagine I also have a law degree.

      I well aware of the process of assessment of evidence which goes on at the early stages of care proceedings or pre-proceedings in cases of this kind. Having only the judgment and a case summary to work on I am not in a position to replicate this scientific inquiry exercise nor have I sought to do so in what was no more than a short blog post pondering the merits of some fairly broad sweeping assertions by a journalist without reference to the timeline.

      I do not think that it is acceptable to elevate impressionistic or peripheral suspicions into firm evidence where there is no “proper” evidence. I do think that it is easy for us to say, in hindsight, that the LA should never have pursued the case – far harder for whichever lawyer was advising them to make the call at the time.

      Considering you think my blog post was such a joke I am surprised that you have spent a long time constructing such lengthy and increasingly pointed responses. I think that you may have rather lost the focus of what the original post said. It did not suggest that concerns about the operation of the family justice system are unfounded and you will see if you read other posts on this blog that I think that there are very many things wrong with it. It did ponder whether or not this case was evidence of the family justice system going wrong (rather than the child protection system more broadly). It attempted to draw out some of the matters which the Times article skated over or rendered unclear – in particular that it was suggested the child was placed in foster care for 18 months as a result of the LA pursuing the case post-acquittal when in fact the majority of the time spent in foster care was whilst the criminal charges were still outstanding. My focus was also on the operation of the effectiveness of the family court system as much as it was about the social work or LA legal decision making process. I’m NOT attempting to “make the argument” for the LA, I was simply drawing attention to the difficulty that decisions of this kind present for all involved – and that the current law / public policy means that a different evidential standard is applied in matters of child protection than in criminal courts. Even if one accepts that the LA made the wrong call in pursuing this matter after the acquittal the court system operated effectively in achieving the right result after exhaustive enquiry and doing so comparatively quickly (although no doubt an excruciatingly long time for the family).

      In a nutshell : it’s a bit more complicated than the short Cavendish piece allowed for. The headline may be lazy – it was drawn directly from Cavendish’s own headline. The question mark was mine.

      I’m not sure what the Geek Lawyer reference has to do with the price of fish, but I don’t think it really adds to your argument.

      Thank you for your comment.

  14. Rob,

    If I may say so, I think you’re looking at this as if it is—or can be—a matter of black and white.

    Local authority solicitors and the counsel they instruct cannot be medical experts. With respect, if you are asserting that you could decide between the medical reports you are either a) a medic with considerable expertise in paediatric-orthopaedics. or b) wrong.

    It is a fundamental—albeit common—misunderstanding that for any issue that is tried by a court the answer is, or should have been, obvious at the start of the process. I think the judgment makes it fairly clear that the the likelihood of NAI only falls away when the all the evidence is integrated.

    I should add that the FLW article by Jo Delahunty doesn’t criticise the LA, the hospital or counsel as you suggest it does—insofar as I posted the link I had read the article.

    Finally, it may help clarify things if I point out that the approach you take to legal causation (re: the care in the hospital) is wrong. If, hypothetically, there had been an NAI, even negligent medical treatment would not break the causal chain & the in such a case the parents would remain liable for a murder.

  15. Lucy,

    The first evidential and interpretational error that you make is that you fail to realise that the Triad that Theis J refers to is a hypothesis based upon peculiar evidence that you must make out first before saying there is NAHI. The tracts of evidence in these cases are not a series of discrete standalone crystallised pieces of evidence of NAHI. Jim Nately makes this error as well as negligent handling / negligence by the Hospital Staff would would break the TRIAD hypothesis (as you must put all the facts together before saying that the hypothesis is founded – and this includes parts of the defence factual matrix). (The question being debated is why the LA or CPS did not do this in advance of Court and whether they could be criticised)

    It is for this reason Delahunty said this was central to the defence (as this allegation should also feeds into the assessment of each individual piece of evidence as to whether the hypothesis was founded). If you are saying you could have made the defence without alleging negligence without recognising that this would be a tougher evidential challenge, this I feel would be something of a bar room boast).

    If you are not making that first error, the main thing that you could be accused of when saying that the Parents have not been “declared innocent” of the various charges coupled with some of your other statements – is that you are making a libellous accusations (by saying that evidence of NAHI exists when it does not). This intermediate step in the process might appear small but is vital. It is for this reason I thought you were joking in the main body of your text. When it was clear this was not laxity of language but might be rather an absence of the necessary skills, I thought this would be useful to develop further in your comments section – as your main argument, like a scene the Queen’s Counsel cartoon, thinks that the system is alright. (The particular issue was the one where the Student says reform is necessary; the professional says the arguments go both ways; and the crusty Supreme Court Judge says it is the best system in the World).

    Following the Baby P case, this issue of the adequacy of skills to interpret particular types of evidence is of more relevance to the junior member of the Bar, if not the increasing number of SIPs who come through the system.

    The Triad refers to scientific research that three particular injuries coupled with a checklist of “suspicious behaviour” can found a finding of NAHI and at the upper level of charging, murder. People might think there is something very odd in that only a particular class of persons could be found guilty from this new offence, not introduced in Parliament (in this case, if the Rough Handling was the result of hospital negligence that caused the Triad of injuries, this would not attract criminal sanction; but if the Parent’s admitted to rough handling… then you know what happens).

    Details of the Triad so far as criminal charging are concerned are to be found on the CPS website resources. Two of the main source documents are the Kennedy Report into SUDS (2004 – that dealt with the intermediate aftermath of Sally Clark’s case) and a position document from the RCPath (that Theis J referred to – and has now been withdrawn to be reconsidered).

    Theis J along with a number of Judges have special training, have access to resources (there are liaison committees that cover a variety of individual issues. The Healthcare Regulators have made tentative steps to address these issues with medical and legal experts assisting their panels (if you are aware of the procedures) Some members of the bar are dual trained, some senior members of the Bar acquire enough ad hoc grounding to be able to deal with these cases. As you appear to be saying that this training is not necessary, why is this? Do all accused Parents, like Sally Clark, need a “Marilyn Stowe” for the Court system to work? This might have been a role that the Guardian could better undertake – though you found their efforts not always central.

    In 2004 or so, it was said to be too complicated to write down changes to the Criminal and Civil Procedure Rules (in terms of Practice Guidance, Rules etcetera)to take account of how different scientific reasoning is to be applied in these cases, but these were to be read into the CPR and the Criminal Equivalents. Given Delahunty’s comments, are explicit statements now required? What are your suggestions and counter arguments for the status quo? Do any new rules take account of these issues?

    You can be accused of scientific misconduct if you ignore or cover up significant results that do not fit with your hypothesis. You may have even defended such a case. However if you are a Prosecutor bringing a prosecetion based on the hypothesis and do not call evidence from the lead Pathologists set out in the guidance document(that undermines your hypothesis), I find it surprising that no one from the Bar seems to think this is a breach of the rules.

    Given your brief article, how does this legal process (of discounting counter evidence) assist the process of ascertaining the truth? Do you have any evidence to support why the scientific model is wrong? Similar criticisms can be made of the LA side of the case.

    If you recall the 1970s, if you were arrested, it was very rare for there to be legal assistance in police stations until a series of abuses were uncoovered. The process of engaging child protection procedures in A & E are akin to such a dramatic step. There appears to be something quite wrong in calling the Parents back to discontinue resuscitation; and then charging them with murder when the Child subsequently dies, which only then brings the legal protections that have been hard fought. The number of cases like this are very small yet you do not make any convincing counter argument.

    Given the criticism of overreaching by the CPS and LA teams, any number of suggestions could be made of the Family Legal Process if not for reasons of professional pride, complexity, inertia or lack of insight.

    The BBC interview that you refer to refers to the Mother criticising the lack of care given to her Child in the four hour window blaming medics, social services and the local authority. Theis J does not mention this in her judgment as her conception of the role of a care giver is limited. The NHS either through DOL safeguards recognise wider conception of the tasks a care giver can provide to one of patient advocate (though they bar lawyers from acting through this unofficial channel). Not many people have the foresight or connections to have a Top QC on standy to get an emergency order from the Court (and if they did, the chances are they would not need an advocate.)

    Cavendish should be lauded and supported, as should any champion of reform (and this includes you, if you are so minded). Some of her comments and suggestions should not be so quickly dismissed.

    • Rob,

      Thank you for your explanation of the triad hypothesis. I am familiar with it.

      You seem to have attributed to me views which I have not stated and opinions that I have neither held nor expressed, with the sole purpose of going on to knock down each of those apparent views or opinions. I don’t propose to respond to criticisms of things you mistakenly think I stand for, save to make absolutely clear that I am not suggesting (and have not done) that the parents in this case are responsible for NAI. What I have said is that there was evidence at various earlier points that supported (rather than proved) a hypothesis of NAI. If there were not such evidence a prosecution would not have ensued. If there were not / weaknesses in that evidence and / or evidence to the contrary a conviction might well have followed instead. Thankfully it did not. Likewise with the outcome of the care proceedings.

      One point that is significant in terms of the sequence of developing medical evidence is that it was only in the course of the care proceedings that it became clear that the brain bleed had occurred during the period of the hospital admission (pa 169 / 187). The timing of the brain bleed was crucial to the hypotheses around the timing (and therefore causation) of the skull fracture, as Dr Malcolm had maintained that the skull fracture could not have been accidental. Once it was clear that the bleeding had occurred during admission the possibility of a an inflicted fracture by parents having been eliminated, the court was faced with the alternative scenarios of inflicted injury by someone else or accidental unnoticed injury arising from extreme bone fragility (rickets) (see 209 and 212(6) which sets out that and other reasons).

      This aspect of the medical evidence was not drawn out in the criminal process and arose only from the oral evidence of expert witnesses in the fact finding hearing within the care proceedings. This is illustrative it seems to me of the important function that the family court process played in working out what actually happened, as far as is possible bearing in mind the limits of medical knowledge. I haven’t gone through each and every injury or every point but in relation to this one issue the evidence until part way through the fact finding hearing appears to have supported (not necessarily proved) the hypothesis of an inflicted brain / skull injury prior to admission. That this hypothesis was wrong and has been proven to be wrong is thanks in part to the family court process, the care taken by the judge, and to the excellent work of the legal teams. It would of course on a human level have been far preferable for the parents to have been spared that awful process and delay but there must be a process through which we work out if people have harmed their children, and it is right that it is thorough and fair to all concerned. It’s difficult in cases of medical complexity where even the acknowledge experts are at the boundaries of their expertise to think of a better way to conduct these cases without putting children at an unjustifiable risk of further harm.

  16. “I have worked for several local authorities and I am afraid that social workers often simply take a dislike to a particular parent, and won’t accept that the parent is not actually doing anything wrong. If there were no personal element involved in cases where a local authority is a party the Local Government Ombudsman would have nothing to do.

    Unfortunately many cases begin and then spiral out of control for the above reason.

    Two cases I have just returned from in London were exactly like that.

    Also if a judge decides there is no case or if there is a criminal acquitall, instead of reexamining the situation the SS Dept. will come back for another try, even more determined to succeed.

    This family were VERY LUCKY, now many similar cases are there where there is not a happy outcome and the children are sent to adoption or a special guardianship with very limited contact by hte parents?

  17. […] the “secret justice” of the family courts. (Although these articles were largely based on unrepresentative anecdotes that don’t fit with the bigger picture, they gained traction in the public debate because, as […]

  18. Lucy continues to claim that HHJ Kramer QC’s written judgment, that accepted the defence’s hypothesis of the TRIAD injuries was “not emphatically a verdict of innocence”. This still seems libellous

    As well as assisting Delahunty QC with her article, on the Garden Court Family Blog McWatters wrote about Cavendish’s concerns and the differences between the two judgments (implying there was little difference). He concludes by arguing that a forward looking case should have started from the position in asking why that accepted defence hypothesis was wrong.

    The differing standard of proof between hearings made little difference to how the defence experts made their case, McWatters noting that the Parents were fortunate to inherit world renowned experts from the CCC (whereas Lucy claims differently). As Cavendish interviewed all the parties, it is unlikely that the false reporting criticisms are valid here.

    As the preliminary findings of the Post mortem were available within a month of the relevant child’s death, the actions of the LA in holding this back like it was some kind of PII issue seem to fly in the face of child protection. Perhaps that LSE researcher can explain this anecdote away with more sociology research?

    Lucy also appears to confuse the medics on the the ground as experts of opinion as opposed to fact (see Theis J on this) when implying that Salt and Peters “were indicating the possibility indeed likelihood of NAHI” by the Parents. By her reluctance to damn the suboptimal care provided nor the flaws in the evidence that undermines Lucy’s claimed hypothesis claims at the same time, she is sloppy in a medical jurisprudential way as well as inconsistent as well as accentuating the libel.

    (It would be somewhat ironic if the damages that the libel courts pay out exceed any payout of any negligence claim).

    Lucy fails to recognise that one unsual feature of this Triad case was that there was alot of direct clinical evidence of the peri collapse situation – and there should have been much more but for the sub optimal care at UCH. As Peters and Theis J indicated, the usual presentation for such cases under the hypothesis is that collapse follows immediately upon the relevant event. A true scientist should welcome the insights gained from such an unusual fact situation – whereas the default position of the Judiciary is to limit the case to its facts, lest unwelcome light is shone on any further errors.

    Within a week of this case being reported, a report from Haringey (some of the cases involving the same trust) found that the Child Protection set up was picking and choosing cases; the legal framework being persistent neglect cases were being binned while big ticket cases (the larger brief fees might explain the bias) were sought out. Given Lucy’s rants at being stiffed by the LSC, is she “realigning her practice”?

    Twenty years ago, you would never be able to find a medic to justify how the “Child Protection Consultant in charge” could fail to treat a seriously fitting child for more than six hours. Nowadays, with diminished medical training, modern management practices, such news management succeeds in pulling the wool over many peoples eyes. Dick indicates that the Parents were fortunate without perhaps realising the scale of their “luck”

    • Rob,

      Your post is rangy : it strides from libel to medical to the insinuation that I am modifying my public views in order to follow the money and to assist with my “realignment of my practice”. I find that last bit pretty damned offensive.

      Forgive me for an uncharacteristically curt response, but I have just finished a 75 hour week which has been spent dealing with two final care hearings where I represented vulnerable mums who were challenging the long term removal or adoption of their children. I have skipped breakfast, lunch, bedtime stories and much needed sleep more times than is healthy in the last fortnight. I have not responded earlier this evening because I have spent my first night off for ages doing the credit card shuffle in order to ensure that I can pay my bills next month.

      No I am not “realigning my practice”, nor am I doing any of the things you insinuate through that phrase. I say what I think. I work hard. I fight for my clients.

      You brandish the word libel around with such confidence one could almost believe you understood what it meant. If I were so minded I could take your remarks as potentially libellous. But I’m a big girl. And I can cope with people disagreeing with me.

      You on the other hand seem to have nothing better to do than to rail at me without even doing us the courtesy of giving your full / real name or stating your interest or expertise (in spite of other commenters asking you to do so). Everyone on this blog is entitled to an opinion and I don’t care much if it is aligned with mine. But I don’t run this blog either for profit or for the sole purpose of making myself a lightning rod for abuse about the faults of the system. And sometimes it gets tiresome.

      Give it a rest please. Or go elsewhere. I do have a block facility, which I would prefer not to use.

  19. […] called the “secret justice” of the family courts. (Although these articles were largely based onunrepresentative anecdotes that don’t fit with the bigger picture, they gained traction in the public debate because, as […]

  20. I am well aware how lucky the family were, particularly as “The triad”, as in previous controversial theories, is hotly defended by the medical supporters of the theory.

  21. Rob,

    You evidently do not have a very high opinion of the family bar .

    Red Mass anyone?

    Family law courts are in fact the old Inquisitional courts of the dark ages with the Hammer of the Witch being on every magistrates bench.

    Because of the in camera “rule” we still have mothers condemned as witches in UK- Liverpool well noted for it 2005, 2007. These mothers lost their children because they were deemed too strong for women.?They refused to bow to the patriarchal system and sell their souls.

    During this time, the Jesuits were granted an exclusive “right” never before seen, the concept of salvaging those souls “lost” to the See (Sea) through the concept of Salvation using Banks and Courts as part of their apparatus –

    The answer was Gold Bars, the origin of the name of the Bar Associations, the “reapers of souls”.

    Bar means “stake or rod of iron used to fasten a door or gate”. It also means “ruling with a rod of iron”. So now, the Jesuits controlled the Sacred Penitentiary into which were placed the most valuable asset of all, souls cursed into Bars of Gold.

  22. “Not many other than lawyers will have the fortitude to get through the judgement”…!!!!
    Unbelievable! Excuse me while I make myself a cup of tea before I continue to go through a court judgement (unpaid) on behalf of a woman who has the fortitude but limited capacity to understand it and no entitlement to legal aid before getting my children up and off to school and myself off to work.Two or three nights a week I get from 0-3hrs sleep. This is no great sacrifice and, believe me I am no angel, as I am absolutely driven. The only time that I have to support her and many others like her is through the night. I am not alone in this. Many people like me certainly do have the fortitude to stay awake through the night along with the sleepless, fortitude-rich parents and children ( and truly committed social workers and countless others) to do our best to support all concerned.
    Incidentally, I am not a lawyer and, incidentally, my cleaner who read some of my paperwork, who is not a lawyer, who is dyslexic and a single mum often stays up all night to “get through these court judgements ” too. People other than lawyers DO have the fortitude. I am not giving my opinion on anything else on your blog but I find this arrogant, ignorant and insulting.

    • Jacqueline,
      I’m sorry if you found my remark insulting, but I don’t think you are reading it as intended. To clarify, I said not many other than lawyers would have the fortitude – because the reality is that most people will rely on newspaper reports rather than first hand reading and analysis. I doubt that all family lawyers will have found the fortitude to read the judgment either but that’s a different story. Equally I don’t doubt that there are people like yourself who do have both the fortitude and inclination to read and analysis in detail, which is why I chose the words “not many”. Rather than a comment on the capacity of non-lawyers to understand this type of judgment or to focus for long enough to do it, this was simply an observation that most people wouldn’t bother. Clearly those with an interest in finding out about these things, such as litigants and their supporters, may do so – but most members of the public are happy to rely on what they read in the papers. My point in this article was that if they do so in cases of this complexity they may not get the full story because press reporting is limited in its scope, depth and often in its balance.

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