Family Law Hub

TG (A Child) [2013] EWCA Civ 5

  • In a tweet: Adducing biomechanical evidence may prove to be an uphill struggle - at the moment OR remember that successfully appealing case management decisions is very difficult to achieve

    Summary: This case involved injuries caused to a little boy, TG, when he was just a few days old. These injuries included four left rib fractures, two right rib fractures and two skull fractures. Care proceedings had been commenced in relation to TG and his two older siblings, MG (who was about a year old at the time the injuries were caused to TG) and CJ (who was about five years old at the time). The case had been transferred to the High Court and had been managed by Bellamy J. He had refused to give TG's father ("F") permission to adduce expert evidence from a  biomechanical engineer and this was F's appeal against that refusal. 

    F's evidence was that TG's injuries had been caused by an accident involving a bouncy chair. F stated that he had put TG in his bouncy chair on the floor of the kitchen near to some patio doors and had then left the room. He had heard banging in the kitchen followed by TG crying; he had  immediately gone back to the kitchen to find the bouncy chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG's head and chest. F contended that he could only presume that the chair had tipped forwards towards the window. TG's mother ("M") supported F and agreed that the bouncy chair had in someway tipped over, thereby causing TG's injuries; however she speculated that it had perhaps happened when MG had tried to get into the bouncy chair with TG and the chair had tipped backwards. 

    Bellamy J had previously given directions for five medical experts to be instructed including a consultant paediatric radiologist, a consultant paediatric endocrinologist,  a consultant neuro-radiologist, a consultant paediatrician and a professor of ophthalmology. F had also sought to instruct a biomechanical engineer to report on the level of force caused by the bouncy chair incident; he relied on the decision in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam) where biomechanical evidence had been produced. Although F's request was repeatedly refused, directions were eventually made for a biomechanical engineer (Dr Van Ee) to provide an interim report on the potential relevance of biomechanical engineering to the causation of TG's injuries and  the nature of the tests that would be undertaken if permission were granted for a full report to be produced. Dr Van Ee is a specialist in the analysis and risk assessment of head injuries and he was the biomechanical expert witness in the Al Alas case. 

    In Dr Van Ee's interim report, he recorded M's suspicion that "MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG's head … when MG tried to get off, the chair flipped forward 180 degrees". He set out a "Suggested Plan for Further Analysis" (which was reproduced as an appendix to the judgment). This plan included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers. Dr Van Ee also contemplated experiments using a number of children of MG's age "sitting down rambunctiously" to determine whether they could exert sufficient force (i.e. have the strength) to overturn the appropriately loaded bouncy chair. The estimated costs of undertaking these tests was put at between $18,500 and $22,000 (Dr Van Ee being based in America). 

    F's application for a full expert report  was supported by M but was opposed by the local authority. In particular, the local authority submitted that the tests that Dr Van Ee had proposed amounted to a reconstruction in a case where it was impossible to arrange for a meaningful reconstruction to take place because no-one had actually witnessed the incident. The reconstruction would be based on speculation and therefore the biomechanical evidence would be of no more than tangential relevance. In December 2012, F's application was again dismissed and F sought permission to appeal; this too was refused with Bellamy J saying:  

    "I can find nothing in these authorities that leads me to the view that biomechanical engineering evidence is reasonably required in this case, whether as a matter of fairness to the father or otherwise.

    I rejected an earlier application by the father. There was no appeal. Since then the reports of the medical expert witnesses have begun to come through. Reminding myself again of the need to tread cautiously given that there are still three medical experts left to report and the evidence of those who have so far reported has not yet been tested in court, it is nonetheless the case that on the basis of Dr Fairhurst's [the radiologist] report either the rib fractures and the skull fractures arise from two separate incidents (in which case the father's explanation could at best only be an explanation for one of them) or a single incident occurring … before the date of the incident described by the father.

    In the light of that evidence as to timing, it is difficult to see what Dr Van Ee has to contribute to the forensic exercise that cannot equally (and more appropriately) be contributed by the medical experts who have already been instructed.

    The proposed cost of Dr Van Ee's report is, in my judgment, disproportionate to the likely benefit to be derived from it. Furthermore, and more importantly, to allow the father's application knowing that Dr Van Ee is not able to report until 25 January is tacitly to accept that the fact finding hearing may need to be put back in order to accommodate his evidence. Given the ages of these children and the fact that these proceedings have already been in train for approaching six months, that delay, if it occurred, could not be described as purposeful or proportionate and would in my judgment fly in the face of the general principle set out in s 1(2) Children Act 1989.

    I have outlined the procedural rules in detail. I am satisfied that on a proper application of the approach required by those rules to the facts of this case, the father's application should be dismissed."

    F submitted that, by refusing to adduce biomechanical evidence, Bellamy J had exceeded his case management discretion and had acted unfairly towards F. The refusal meant that F could not put before the court relevant evidence as to whether or not the accidental explanation offered by him and M was capable of generating sufficient force to have caused TG's injuries. He relied on Article 6 European Convention on Human Rights (right to a fair trial) and argued that if Bellamy J's decision was upheld, the question of the forces generated would be left to doctors for whom physics and biomechanics were not part of their direct experience or expertise. More generally, F contended, the appeal raised a point of law about the admissibility of biomechanical evidence in suspected non-accidental head injury cases; he drew the court's attention to the cases of  R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul) where Gage LJ had referred to "the growing science of biomechanics" as having "had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries."

    M adopted F's submissions and further suggested that instructing Dr Van Ee now might avoid the possibility of findings made at the fact finding hearing being subsequently challenged and having to be re-litigated in the light of expert evidence obtained by the defence for the purpose of any criminal trial (M was on bail pending a decision as to whether or not she should be prosecuted). 

    The local authority argued that Bellamy J's decision should be upheld as it was neither flawed nor wrong, let alone plainly wrong. In particular, they highlighted: 

    • no one had witnessed the incident that was to be reconstructed - what was the biomechanical engineer supposed to recreate?  What was being tested?  Whilst it was accepted that biomechanics as a discipline could potentially assist the family courts, this, the local authority said, was not a case where any useful assistance could be gleaned and more generally, it was far from clear that any court had derived significant assistance from such evidence;
    • the radiological evidence suggested that the rib fractures had occurred earlier than the incident recounted by F ;
    • the court would have the benefit of the five other medical experts so to say that F would not have a fair hearing was wrong. Further, although one of the doctors had actively supported the instruction of a biomechanical engineer, three of the others had already expressed scepticism as to the utility of such evidence; and
    • there was a risk that, if biomechanical evidence was permitted in this case, which involved an unwitnessed incident said to be to blame for injuries some of which pre-dated the incident itself, then it would hard to see how such evidence could be disallowed in many, many other routine cases. 

    And, finally, the children's guardian, adopted "in full" the local authority's submissions. 

    Held:  F was granted permission to appeal but the substantive appeal was dismissed. 

    Appeals against case management decisions

    In giving the leading judgment, Sir James Munby reminded practitioners that this was an appeal against a case management decision and that some basic principles had to be followed. These can be summarised as:

    (1) Active judicial case management is an integral and essential part of family cases. The obligation of the court to further the overriding objective, as set out in rule 1.1 Family Procedure Rules 2010 ("FPR 2010") is now enshrined in rules 1.2 and 1.4 FPR 2010. The overriding objective as defined in rule 1.1(1) is that the court should "deal with cases justly, having regard to any welfare issues involved." Rule 1.1(2) provides that this includes, so far as is practicable:

    "(a)  ensuring that [the case] is dealt with expeditiously and fairly; 

    (b)  dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; 

    (c)  ensuring that the parties are on an equal footing; 

    (d)  saving expense; and 

    (e)  allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

    Essential aspects of case management are set out in rule 1.4(2). Of particular relevance to this case were the following provisions:

    "(b)  identifying at an early stage –

    (i)  the issues; …

    (c) deciding promptly –

    (i)  which issues need full investigation and hearing and which do not; and

    (ii) the procedure to be followed in the case; 

    (g)  fixing timetables or otherwise controlling the progress of the case; 

    (h)  considering whether the likely benefits of taking a particular step justify the cost of taking it; 

    (l)  giving directions to ensure that the case proceeds quickly and efficiently."

    (2) An essential part of appropriate case management is the power of the court to control evidence. Rule 22.1 provides that:

    "(1) The court may control the evidence by giving directions as to –

    (a)  the issues on which it requires evidence; 

    (b)  the nature of the evidence which it requires to decide those issues; and 

    (c)  the way in which the evidence is to be placed before the court.

    (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible. 

    (4) The court may limit cross-examination."

    (3) The court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

    "No party may call an expert or put in evidence an expert's report without the court's permission."

    Rule 25.1 provides that:

    "Expert evidence will be restricted to that which is reasonably required to resolve the proceedings."

    (Of course, as you all know, we now have the new Part 25 test,  to which Sir James referred although this case was, strictly speaking, proceeding under the old Part 25 test)

    Sir James observed that whether applying the old test or the new test, the judge will always have to take into account all the circumstances of the case: the nature of the expert evidence, the forensic context, the need to be alert to the risks of the consequences or implications of decisions made, an evaluation of the usefulness of a particular expert's evidence in determining the issues in question. However, just because judges have to be alert to ensure that miscarriages of justice do not take place, and have to be open-minded enough to consider the possibility that a novel expert discipline might provide the key to explaining what might appear to be a familiar type of case, this did not in turn mean that a parent was entitled to adduce expert evidence of any kind. 

    Sir James quoted Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), where he said

    "there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown . . .

    I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."

    He concluded that sometimes what has happened in a particular case is just simply medically inexplicable. 

    (4) The Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions (Deripaska v Cherney [2012] EWCA Civ 1235 and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706). Practitioners (and their clients), Sir James said, had to understand the circumstances in which the appeal court can interfere with case management decisions were limited - the Court of Appeal can interfere only if satisfied that the judge has erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. He quoted Black LJ in  Re B (A Child) [2012] EWCA Civ 1742, where she said:

    "a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task."

    Of course, there is always a balance to be struck as Black LJ noted herself in the same case:

    "Robust case management … very much has its place in family proceedings but it also has its limits."

    (5) In evaluating whether an appellant meets the high threshold required to justify its intervention, the Court of Appeal must have regard to and apply the principles laid down in Piglowska v Piglowski [1999] 1 WLR 1360. In particular, Sir James highlighted this paragraph from the House of Lords decision:

    "reasons for judgment will always be capable of having been better expressed … reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

    Biomechanical evidence

    Moving on to the question of biomechanical evidence, Sir James looked at a number of recent authorities including:

    R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980 where Gage LJ had said this about biomechanical evidence - "This is a complex, developing and (as yet) necessarily uncertain area of science, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault."

    Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90 had also involved an appeal by the parents against a refusal to instruct a biomechanical engineer. In dismissing the appeal, Wilson LJ (as he then was) had said "I have determined a number of cases in which parents put forward versions of events involving a sudden impact of the child's head upon some sort of surface in the course of an accident; and I cannot recall a case in which I considered, or in which it was suggested to me, that the probabilities could not safely be balanced without biomechanical evidence."

    R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269, where Moses LJ had said - "It must be recalled that it was part of the appellant's case at trial that the baby's injuries may have been attributable to a fall whilst being held by his mother. This possibility was rejected by the jury. We do not think that the [biomechanical engineering] evidence of Dr Jones could afford any ground for allowing the appeal. Dr Jones accepted, both in his oral evidence and in his written report, that there was very little data to be derived from experiment, as we would expect. He also accepted, both in his oral evidence and in his report, the difficulty of drawing conclusions because of the complexity of a baby's brain."

    Islington London Borough v Al Alas & Ors [2012] EWHC 865 (Fam), [2012] 2 FLR 1239 was a case where biomechanical evidence had been permitted but where Theis J had said the following about it - "I can take his [Dr Van Ee's] evidence quite shortly as it doesn't contain anything that is not already known to these courts or is already before the court from other witnesses. His evidence both at the CCC and in this hearing made clear there is little data to be derived from experiment and the enormous difficulties in drawing conclusions because of the complexity of a baby's brain."

    There were no cases that could be identified either by the judges or the counsel involved where biomechanical evidence had been found to be of significant assistance to the court. 

    Conclusion

    Sir James Munby concluded that Bellamy J had directed himself correctly as to the principles he had to apply; he had not misunderstood the law and had taken into account all of the relevant material. There were no grounds on which the appeal court could properly interfere. Neither was there anything to suggest that the decision had breached F's Article 6 rights. 

    The question before Bellamy J had not been one of admissibility of biomechanical evidence but rather whether it was reasonably required.  

    After considering the relevant biomechanical questions, Sir James noted that it did not take the expertise of an engineer to demonstrate that an eleven day old baby strapped into a bouncy chair was simply incapable for generating the forces to tip the chair over. The only external actor who had been identified was MG and whilst it was accepted by the court that an engineer would be able to postulate about various factual scenarios the information was of limited value because of three factors:

    • no one knew what had actually happened;
    • no one knew if MG had been capable of exerting the required tipping forces at that time; and
    • there was only a very imperfect understanding of how a baby's body worked and how much force was required to produce a particular form of injury

    The prospect of the expert being able to produce any meaningful evidence was sufficiently slight to fall short of the reasonably required test. 

    Comment

    Sir James also commented on the more general question - might biomechanical evidence in other cases satisfy the "necessary" test? Although he did not rule out the possibility, Sir James considered that, at its present state, the science was only likely to be used infrequently in the family courts. However, he emphasised, that was only the position today - the family courts had to bear in mind that tomorrow might bring about a transformation of scientific knowledge so that new scientific research would "throw light into corners that are presently dark".

Case note, published: 05/02/2013

Topics

See also

Items referring to this

  • Appeal of judicial review proceedings concerning funding of an expert report for a child joined as a party to contact and residence applications and where the parents represented themselves. The LSC's decision not to fund the report was declared unlawful. Judgment, 22/05/2014, free
  • Written reasons for dismissal of appeal, by the father in contact proceedings, against an order requiring a Cafcass officer to meet with his daughter to see if she could give evidence in a fact-finding hearing over allegations of violent behaviour towards the mother. Judgment, 23/07/2014, free
  • Appeal by 'husband' (there had been a decree absolute) against refusal to admit expert evidence on earning capacity in the financial remedy proceedings. Appeal dismissed by Moor J as the evidence requested did not meet the necessary test of importance and that such evidence should be kept to a minimum in regular financial remedy proceedings. Judgment, 21/02/2018, free
  • Appeal by father in private law proceedings, against order requiring he be subject to a psychological report and pay half the costs. Appeal allowed because, broadly, the court and judge on appeal had ignored the current Rules on experts that came into force in 2013. Judgment, 10/06/2015, free
  • Hague proceedings were withdrawn after the parties were able to agree the terms of a consent order, such that there was no utility in continuing with the Hague proceedings. Judgment, 10/03/2016, free
  • Judgment, 13/02/2013, free
  • Judgment, 14/06/2013, free

Published: 05/02/2013

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