PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the litigation process. The judgment of His Honour Judge Greensmith in M and N (Children : Local authority gathering, preserving and disclosing evidence)  EWFC 40*, is another case that demonstrates the frailties of the process of collecting evidence. It demonstrates a universal problem in the litigation process – very few of those involved in litigation (of all types) have received adequate training “in the areas of gathering, preserving and disclosing evidence “.
The case shows the dangers of taking handwritten notes and then typing them out several weeks later, relying on memory. This process led to profound problems.
“In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory. “
The local authority brought proceedings in relation to a child. It was alleged that the parents had injured the child by a deliberate or negligent act. The parents contended that the child was injured in a fall. The parents had a meeting with a social worker. The typed note of that meeting was adduced in evidence. The hand written note was not, initially, produced. As we shall see the hand-written version was significantly different.
THE JUDGE’S OBSERVATIONS ON THE LOCAL AUTHORITY’S EVIDENCE
11. Social worker, (SW1), was charged with investigating the matter on behalf of the local authority. SW1 spoke with the mother on 22nd September when she was given the seatbelt explanation. On 25th September, the Monday, SW1 visited the parents’ home and met with the mother and the maternal grandmother. At this meeting, she was given specific details of the fall explanation. On 26th September, the following day, SW1 visited M at her school. Each of these meetings need further expansion but before doing so, I must comment on the way the meetings were recorded.
12. During her evidence SW1 referred to her formal recording of the meetings which was set out in case notes and notes prepared for the purpose of the local authority section 47 report. Both sets are very similar as there was clearly a lot of copying and pasting from one to the other. Significantly, the formal notes were largely made up on 9th October, some two weeks after the meetings took place. When questioned by Miss Mallon about the potential for these notes being inaccurate because of the delay, the social worker was adamant that they were accurate as she relied on her memory, supported by her handwritten notes taken at the time. The cross-examination was highly relevant as there was a material dispute as to what was said during the meeting on the 25th.
13. The handwritten notes had not previously been disclosed by the local authority and did not form part of the bundle. At the conclusion of SW1’s evidence, the court asked her if the notes existed and if they could be produced. It transpired the notes did exist and they were produced the following day and circulated. The contemporaneous notes comprised seven pages of handwritten material. It is difficult to overstate how unprofessionally prepared these notes were. They were largely undated, they failed accurately to recall who was present, much of the handwriting is illegible, they were in large part disjointed and had to be translated by SW1 who gave further evidence but despite their unsatisfactory condition, the notes were illuminating.
14. Until the notes appeared, no plan of the living room of the family home had been prepared. The notes, however, contained a sketch plan of the room with a faint line which the social worker confirmed denoted the path M was taking when it was alleged that she had tripped falling on to N. The path is clearly towards N’s head and right shoulder. It is entirely consistent with the evidence given by the mother and the grandmother and suggests a graphic explanation for how M could have placed her knee on N’s right shoulder causing bruising to her neck but not to the remainder of her torso.
15. The significance of this is twofold. Firstly, the fact that the mother was denied this crucial contemporaneous recording of what she said four days after the event was to deny her the opportunity of supporting her version of events with crucial evidence and left her to rely on her memory many weeks after the event. Secondly, it deprived the experts of corroborative evidence to explain how the neck could have been bruised but not the body.
16. The handwritten notes contained a record of SW1’s meeting with M. They are as illegible and disjointed as the other notes but start with the words, “Naughty step”. SW1 was unable to explain why these words appear and could only speculate. The note contains a record of the child saying something and then correcting herself and concludes with the words, “Said never tripped/fell on to N/mat”.
17. As a result of this meeting, it is claimed there is formal record supporting the local authority’s case that M has denied falling on to N. This has been taken up by the experts who have used this in support of their opinion that the event did not happen. This is not a criticism of the experts as they are entitled to assume M was interviewed in a professional manner. Unfortunately, she was not. During the social worker’s evidence she said that she had been ABE trained. If this is the case, I have grave reservations as to the quality and effectiveness of that training.
18. Following the social worker’s evidence the court heard from the maternal grandmother, (MGM). MGM was an excellent witness who did her best to recollect an event she had the misfortune to witness. MGM has mental health difficulties exacerbated by these proceedings, she says, and her presentation to the court is very much to be admired. She gave a clear account of the fall incident. She described how M’s knee made contact first with N’s shoulder and then fell forward towards the baby’s feet. This is entirely consistent with the plan drawn by the social worker, although at the time of giving evidence this plan was not available to MGM.
19. She said that immediately upon the fall occurring, N, who was crying anyway (she was hungry) had a different type of cry. There was mention of a plastic toy. It was suggested that this might have caused the injury. I can fully understand why the toy was mentioned but having seen the toy and considered the impact a 4 years old knee would have had on an 8 weeks old clavicle, common sense tells me that the toy is very much a red herring in this case. That said, the toy is a significant red herring because as a result of the local authority having failed to prepare its case in a way that demonstrates a clear sequence of events supported by contemporaneous notes, the experts were left to consider a possibility which simply did not happen and that is that M hit N with the plastic toy causing the clavicle to break.
The experts in the case were reliant, to some extent, on the social workers (inaccurate) note of the meeting. However some of the experts did not escape criticism.
The court then heard from three of the four experts who prepared reports for this case. Dr. Johnson, a consultant paediatric radiologist, confirmed the injury was less than eleven days old at the time of the initial X-ray. He was clear that the seatbelt would not have caused the injury. This was based on the fact that in his extensive experience he has never come across this before. This is, in my judgment, an entirely reasonable supposition to make. He confirmed that the break could have been caused by the fall. He said that it comes down to the strength and development of M and he would leave that to others to decide. He refused to speculate on the body mass of a 4-year-old child.
The treating paediatrician, Dr. De Soysa, gave evidence. It was unfortunate that the local authority had failed to provide copies of the other experts’ evidence before he attended court and this put him in a difficult position. The hearing was adjourned to allow the doctor to read the other evidence. Upon resumption, Dr. De Soysa confirmed his opinion that the seatbelt definitely did not cause the injury and that it was unlikely the injury was caused by the fall of M. The reasoning behind the opinion was his understanding of the parents’ failure to notice that N had been seriously injured during routine handling and their failure to give an account of the fall being a possibility of such injury being caused until the meeting on the 25th September (at which he was present).
Regarding the criticism that the parents had failed to notice that N was in pain, Dr. De Soysa would not alter his position, even when it was pointed out to him that a nurse palpated N’s shoulder and the baby merely appeared unsettled. Neither would the doctor accept that there was any significance in the fact that upon arrival at hospital the break was not diagnosed until the CT scan following an initial X-ray. I accept that there is a difference between palpating and handling a baby but it seems to me that where a child is not correctly diagnosed for many hours after arriving at hospital, some latitude must be given to the parents and I am surprised Dr. De Soysa could not do that.
Dr De Soysa was told that the parents tried to report the further possibility over the weekend but the doctor failed to view that in a balanced way, in my judgment. Of most significance, Dr. De Soysa said in evidence that if the parents had initially given the explanation of the fall, he would have accepted it as an explanation as to how the injury occurred. With that established, it seems to me that it is a matter for the court to decide whether the delay in the version being put forward by the parents is significant from an evidential point of view.
The last evidence was given by Dr. Elias-Jones, consultant paediatrician, who has reported within these proceedings. The doctor remained as dismissive of the seatbelt theory as he was in his report and this, of course, was entirely echoed in the opinions of the other experts. Regarding the fall theory, there was significant shift in the position of Dr. Elias-Jones during the hearing as to whether the fall could be a plausible mechanism for the injury sustained. Until the hearing, Dr. Elias-Jones was adamant that the clavicle could not have been broken in the manner suggested because if it had, N would have suffered significant bruising across her torso. Indeed, during his evidence he used his right hand to show the bruising would have stretched across N’s left chest area.
It became apparent that the doctor was assuming that M had fallen from N’s left side and that her shin would have made contact with N’s left chest before her knee made contact with her right clavicle. It was put to him by Mr. Wright that perhaps he had misunderstood the alleged mechanism of the cause of the break. It was put that the first part of M’s body to make contact with N was her right knee. There was a notable moment of realisation on the part of the doctor that his opinion was not well-founded and Dr. Elias-Jones accepted, in a manner which does him professional credit, that:
“If she was falling in and hit her with her knee, you would not have had the bruising elsewhere.”
Dr. Elias-Jones maintained that the parents should have reported their concerns that N was in pain before they did but again seemed to be unaware that the parents reported their concerns and their theory as soon as Monday the 25th. Indeed, during the professional meeting he said:
“There was no attempt to take the child for any sort of medical attention. That raises your suspicions.”
While the doctor tried to pass this off as a casual observation, it does, in my judgment, have to be regarded as demonstrating an unfortunate lack of understanding of the mother’s case. In my judgment, it is most unfortunate that the drawing the social worker made on her visit to the parents’ house on 25th September was not made available for Dr. Elias-Jones. Had it been, I am confident that the doctor would not have reached the conclusion based upon a misunderstanding of what the parents were saying had happened.
On the third day of the five day hearing the local authority took stock of the evidence and, quite rightly, concluded that there was an unrealistic prospect of establishing threshold and asked the court for permission to withdraw its application. The court ordered the local authority to make its application formally by way of C2, supported by a child-in-need care plan. These have been filed and the children’s guardian has had the opportunity to consider the way forward.
FURTHER JUDICIAL COMMENT: TRAINING IN THE PROCESS OF GATHERING AND DISCLOSING EVIDENCE
Judicial comment on gathering, preserving and disclosing evidence
I cannot leave this case without making comment on the manner in which the local authority has conducted itself. I have three main areas of concern. Firstly, the gathering and recording of evidence by the social worker was, in my view, wholly inappropriate. The local authority was investigating an allegation of serious child abuse where it was thought possible that an 8-week-old baby had been seriously injured by one or other of the parents.
In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory. If the local authority thought it appropriate to obtain evidence from a 4-year-old child, and it clearly did, it should have followed the ABE guidelines. Failure to do so renders any evidence obtained from the child to be of no value.
Secondly, I have concerns over the failure of the local authority to present a full picture to the experts. If Dr. Elias-Jones had known the explanation given by the parents days after the event in the manner that it was given to the social worker, this would have changed his opinion. This is clear because when he did understand it, his opinion changed but unfortunately this was four and a half months after he filed his report. Dr. De Soysa in his report dated 27th September, which will have been read by the other experts, reports:
“SW1 had interviewed M with regard to this incident. SW1 informed me that M had no recollection of this event.”
There is reasonable scepticism as to whether a 4-year-old should have been interviewed at all. However, if she had been interviewed appropriately, and by that I mean in accordance with the ABE guidelines, the outcome may have been very different. It may be that she would have given an accurate account of events which would have meant this whole case could have lasted days rather than six months. One can only speculate. In any event, to have given an account of events of what M said was, in my judgment, irresponsible as the experts could not be expected to question the basis upon which this information had been obtained.
My third and final area of concern is on the matter as to whether the parents and the children have had the benefit of natural justice in this case and thereby whether their Article 6 rights have been breached by a local authority which is, of course, an instrument of the State. These proceedings are borne out of a serious allegation of child abuse which, if found, would have had a profound effect upon the parents and the way they would be able to care for their children in the future.
I have already given my comment upon my interpretation of the local authority’s duty of care on gathering evidence but I feel obliged to comment on the local authority’s failure to disclose material evidence in advance of being required to do so during the final hearing. It is clear that the content of the social worker’s contemporaneous notes was material in securing the sea‑change in the professional opinion of Dr. Elias-Jones. The parents should not be expected to have to go on a search to obtain such important evidence which supports their case.
The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity. It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating. For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings.
*”ILLUMINATING AS HECK”
This case was brought to my attention by the blog suespiciousminds, the post is “Social worker on the naughty step” . The opening words of this post are “This is a decision of a Circuit Judge, so not binding, but illuminating as heck.”