Re B (A Minor) (Rejection of Expert Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS AND WARD, L JJ
Care – care proceedings – allegation of non-accidental injury – Judge rejecting evidence of consultant paediatrician and recommendations of guardian ad litem – whether Judge erred in law in not acting upon unanimous opinions of expert witness and guardian ad litem.
In November 1994, a six-month-old baby girl suffered injuries, including a large fracture or series of fractures to the back of her head. These injuries caused serious harm to the baby resulting in deficiency of movement of one of her arms and impaired vision. It was not certain whether her intellectual capacity had been impaired. It was alleged by the father that the child had fallen on to a plastic toy. An emergency protection order was granted to the local authority, followed by an interim care order, and the child was placed with foster-parents. Although the father was arrested and the case investigated by the police he was not prosecuted. In the care proceedings, the parties jointly appointed an expert, a consultant paediatrician, who concluded that the parents were unable to give full and proper care to the child. The expert expressed grave concerns regarding the lack of bonding between the child and her mother. The conclusions reached by the expert, the local authority and, after her own independent investigation, the guardian ad litem, were that the child should be permanently removed from the parents and placed for adoption.
The Judge found that the threshold criteria had been established as the child had suffered non-accidental injuries occasioning significant harm. The father was solely responsible for the injuries and the mother had played no part in their causation. The mother had not failed to protect her daughter and had not caused her any emotional harm. She was capable of meeting her needs, both physical and emotional. The Judge concluded that the child's best interests would be served by a phased return to the care of the mother, subject to supervision by the local authority. These findings went against the opinions of the expert witness, the view of the local authority and the recommendations of the guardian ad litem.
The Judge dismissed the local authority's application for a care order, and made a further interim care order providing for a review of the case. The Judge also refused to grant the local authority leave to terminate contact between the child and her parents.
The local authority, supported by the guardian ad litem, appealed.
Held – allowing the appeal in part only: (1) There was no important point of principle arising in this case. This was not a case where the only evidence before the court was that of the expert witness. It was for an expert to advise, but for the Judge to decide on the evidence adduced. There was no rule that the Judge must suspend judicial belief simply
because the evidence was given by an expert. Notwithstanding that the Judge was mindful of the expert's impressive qualifications and her considerable and wide experience in child paediatrics, assessment and psychotherapy, the Judge had found the expert's evidence to be flawed, in that, inter alia, she had allowed her feelings about the mother to affect her thinking and judgment, to the extent that there was hostility by the expert to the mother, which had caused the expert to begin her assessment on a false premise, which subsequently dominated her thinking. The Judge's rejection of the expert's evidence was a finding which could not be interfered with. It was well within the Judge's powers not to accept the evidence of the expert in the light of the findings which he made.
(2) The Judge adopted a proper approach to the recommendations of the guardian ad litem. He was aware that these should not be lightly rejected. Nevertheless he did reject those recommendations, expressing concern that the guardian ad litem did not appear to wish to consider the possibility that only the father had abused the child. The Judge gave his reasons for disagreeing with the guardian ad litem. The fact that he disagreed was not to be seen as an attack upon the guardian ad litem's bona fides or competence. It was the proper fulfilment of his judicial task to assess the advice of the guardian ad litem, but to take it or leave it in accordance with his findings of fact.
(3) Due to an unfortunate, but wholly understandable misunderstanding, the Judge had considered that he was prevented from making a residence order, subject to local authority supervision. As the Judge had already decided that a care order was inappropriate, it was doubtful that it was correct to proceed instead to make an interim care order. This part of the order could not be supported, particularly as the misunderstanding had now been resolved. The interim care order would be discharged and replaced by a residence order in favour of the mother, to be supervised by the local authority.
Statutory provisions referred to:Children Act 1989, ss 1 and 38.
Case referred to in judgment:Davie v Edinburgh Magistrates [1953] SC 34.
Peter Horrocks for the applicant local authority.
Simon Tattersall for the respondent mother.
Heather Pope for the child and the guardian ad litem.
LORD JUSTICE WARD.This is an appeal by the local authority, supported by the guardian ad litem, against an order made by His Honour Judge Bradbury on 18 July 1995, whereby he firstly dismissed the local authority's application for a care order in respect of a young child; secondly, and in circumstances which I shall explain, made an interim care order giving directions for a review; and, thirdly, refused to give the local authority leave to terminate contact.
The facts are briefly these: the child was born on 27 May 1994. She was the first and only planned child of her parents. The father was a prison officer; the mother had a steady job in the Inland Revenue. The child and mother were seen by the health visitor. Visits were necessarily of short duration but nothing that was seen gave her the slightest cause for any anxiety about the parents and...
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