PROVING THINGS 113: POOR EVIDENCE COLLECTION: EXPERTS STRAYING WELL BEYOND THEIR REMIT AND WHO ARE “NOT ENTITLED TO REACH THAT CONCLUSION”

 Family cases, however, often come up with interesting observations in relation to the judge’s role as a fact finder. Similarly much can be gained by looking at  the judge’s observations on experts. We see a critique of the process of evidence collection and criticism of three  experts in Kent County Council v C & Ors [2018] EWFC B28.   It is an example of poor investigations and experts being dogmatic, or going beyond their remit. These are problems across the whole spectrum of litigation.

“… she has strayed well beyond her remit and is not entitled to reach that conclusion based on merely seeing D once; it was not even an observation. This is in no shape or form a proper assessment of D”

THE CASE

Her Honour Judge W Backhouse gave judgment in a fact-finding hearing. Allegations of non-accidental injury were made.   The judge considered, among other matters, evidence from doctors. Firstly she looked at the evidence from the local authority.

WITNESS EVIDENCE : POOR EVIDENCE COLLECTION

The judge considered the evidence in support.

1. 1. Turning, then, to the evidence, I have to say that the beginning of the investigation into the marks seen on L was marred by poor evidence collection. Ms Giardina and her colleague had the crucial first conversation with L in his bedroom on 22 May. Despite Ms Giardina appearing on the witness template for several weeks prior to this final hearing, she apparently was not warned about coming to Court until the day before she was due to give evidence. As a result, she did not have her case notes with her and could remember very little. There was an adjournment to allow her to go back to the office to try and find the original notes she made of that interview. She could not find the notebook she used, but she did print off the case note that she says she entered onto the Local Authority’s system on the evening of 22 May. She says that, given the concern for the children’s safety and all that they had to deal with on that visit, she had to amplify the few notes she had taken during the visit while sitting outside in her car at the end of the visit. She then typed up the case note. She also wrote the first statement for the proceedings only two days later, on 24 May.

   2. Despite the proximity in time of the creation of both the case note and the statement, there are striking differences between them. The case note describes that:

“L was playing with his toys and showing us his books. He stated he had been naughty and Mr H put him in his bedroom. L said this made him cry. Lorraine [That is the other worker] showed L a Mickey Mouse toy and asked him about Mickey’s eyes. L did not disclose anything about injuring his eyes.”

1. 1. In her statement, however, the account is this:

“L was immediately spoken to alone by the social workers but did not disclose how the injuries occurred. L stated that Mummy and Mr H were having a moody and he was sent to his bedroom for being naughty. L stated he had not been naughty and he’d cried in his bedroom.”

1. It was apparent that the reference about ‘having a moody’ comes in the second statement, not the first, and the statement about Mr H having sent him to the bedroom appears in the first, not the second. To make matters worse, in her oral evidence, some ten months later, Ms Giardina thought that she remembered seeing a mark on the back of L’s neck, which does not appear in either the note or the statement, and, indeed, no mark is noted on Dr Das body maps. I, therefore, have to approach Ms Giardina’s evidence with some caution as to its accuracy, but, in essence, all it tells me is that L said that he was sent to his room, he cried and he made no allegations as to how he got the bruises/ marks.

EXPERT 1: “FAR TOO DOGMATIC IN HIS CONCLUSIONS”

The judge considered the evidence of a doctor in relation to bruising.

1. Both counsel for Ms C and Mr H, that is Ms Porter and Mr Braithwaite, have made criticisms of Dr Yadav’s report, and I have to say that I agree with those criticisms. The chief of those is that Dr Yadav does not acknowledge anywhere the limitations of the evidence on which he was basing his report, namely the undated photographs and the poor body maps prepared by Dr Das. Without dated photographs he cannot know how much time had elapsed since 19 May before the photos were taken. He cannot know how these injuries progressed, how they changed or, indeed, what they looked like at any point prior to the photographs, save for what Dr Das managed to convey.

2. But the second failing, in my judgment, is that he simply did not engage with the account given by Ms C and Mr H. They have said all along that L cried, and I think it is a significant omission by Dr Yadav to even mention the possibility of crying causing petechiae, and this in a child who, as we know, is capable of working himself up to a pitch of emotion. He also does not follow through the conclusion in the report that the forehead injury could have been accidental, and again I think it is significant that he did not even mention the possibility of blood tracking down.

3. In my judgment, he is far too dogmatic in his conclusions, and both in his report and answers to questions and in his oral evidence he was dismissive and, indeed, impatient with questions or alternative explanations. I am afraid that I have to conclude that his evidence cannot be said to be fair or balanced, which therefore limits the reliance that I can place on his conclusions.

EXPERT 2: COULD NOT REMEMBER

1. “Now I turn to Dr Das examination. He completed the familiar body maps, showing the marks found on L. Unusually the body maps are not dated. The sizes of the marks are not given and the marks are not described in terms of colour or appearance. Dr Das report suggested that there was a suspicion of non-accidental injury as the bruising to the eyes was to both eyes. His report is, I think, also marred by the fact that he gives no indication as to what was said by the social worker in the presence of the mother or later in their chat after Ms C had left. Dr Das said frequently in evidence that he could not remember, and was altogether an unimpressive witness.”

EXPERT 3: “STRAYED WELL BEYOND HER REMIT AND NOT ENTITLED TO REACH THAT CONCLUSION”

The judge then considered an expert report in relation to the child’s psychiatric condition.

1. 1. 11 is in relation to L’s aggressive and violent behaviours, and those are amply evidenced, and I find that that is the case. 12 reads as follows:

“L presents with poor emotional regulation and aggression and has” I think that must be ‘a diagnosis’ “of developmental trauma disorder related to experience of witnessing and being the subject of violence within the home.”

1. 1. This diagnosis comes from Mrs Gaskins. She admits that it is not a recognised diagnosis. It was put forward in a paper by a group of psychologists in 2005. That has not been accepted by the main body of psychologists. In my judgment, it is not proper to put such a diagnosis in a Court report. What is abundantly clear, though, and this is her essential conclusion, is that L is a deeply traumatised child as a result of his experiences of the domestic abuse. He has not felt safe in the care of his mother and he does not trust her.

   2. And that leads on to 13, which is that he has an insecure, ambivalent attachment to his mother, again as diagnosed by Mrs Gaskins, and that I accept. The trauma and insecurity do not just make L aggressive or have poor emotional regulation but they profoundly affect all aspects of his life. He is a child who desperately needs routine. They have impacted on his ability to settle at school, from which he has been excluded. They have impacted on the kind of care he needs.

   3. 14 is in relation to D. ‘D presents as a depressed and detached infant. Her exposure to domestic abuse in the home has caused her significant emotional harm’. The reference to ‘depressed and detached infant’ comes from Mrs Gaskins’ report. It is a final addendum paragraph at the end of the report on L. She says that she felt it was her safeguarding duty to make the comment, having seen D’s presentation whilst Mrs Gaskins was talking to the foster carer about L.

“Author’s note: I have not been asked to comment on D’s presentation but feel it is appropriate to say that D’s placid and quiet behaviour when first placed in foster care makes me feel that her presentation was one of a depressed and detached infant. When babies do not receive appropriate care and protection they first become distressed, display despair and become detached. This is particularly prevalent in cases which include domestic abuse.”

1. In my judgment, and, indeed, Mrs Gaskins accepted this, she has strayed well beyond her remit and is not entitled to reach that conclusion based on merely seeing D once; it was not even an observation. This is in no shape or form a proper assessment of D. Insofar as Mrs Gaskins was concerned that D did not seem bothered or upset by her presence, her views are contradicted by that of the foster carer, who said that whilst D was a placid child when she first came into care, the foster carer had no concerns about her. And, indeed, the foster carer’s notes show that within days D was animated and playing normally. Mrs Gaskins, in oral evidence, said that the foster carer told her that D does not know how to play, she pokes at toys. There is no evidence of that from the foster carer, but one would have to factor in what is now known, that D does not have sight in one eye and there could be co-ordination issues. So I am afraid that that so-called diagnosis just cannot stand, nor is there any evidence that D has suffered significant emotional harm as a result of the domestic abuse. She has clearly been exposed to it, and at the relevant time there was clearly a risk that she was likely to suffer significant emotional harm as a result of that abuse, but, apart from that finding, I make no further finding in relation to 14.