EXPERTS IN THE FAMILY COURT: PERMISSION TO ADDUCE EXPERT EVIDENCE REFUSED

I usually look at cases in the family courts when there are judgments that may be of some interest to civil litigators.  The judgment  of Mr Justice Keehan in M v Derbyshire County Council & Ors [2018] EWHC 3734 (Fam)     has several matters of general interest to litigators and expert witnesses. The rules relating to expert evidence in the family courts are different to the civil courts,  but there are major similarities. The expert’s duty to the court is identical. What is interesting here is the judge looking at another case in which the expert had been involved.

THE CASE

The courts had made parents adverse to the parents in a childcare case in 2010. The parents sought permission to reopen findings of fact made in that hearing.  They did not challenge the subsequent adoption.  The parents sought permission to rely on three experts.  Mr Justice Keehan refused permission in relation to two of those experts.

THE JUDGMENT ON WHETHER PERMISSION SHOULD BE GRANTED TO RELY ON THE EVIDENCE OF TWO OF THE EXPERTS

 

    1. When considering whether I should grant permission for one or more of the reports of these three experts to be admitted in evidence I have regard to and take account of the provisions of:
i) s.13 of the Children and Families Act 2017, most especially the provisions of s.13(7);
ii) Part 25 of the Family Procedure Rules 2010; and
iii) Practice Direction 25.
    1. The matters a court must consider are set out in s.13(7) CFA 2014 which are set out in paragraph 25 above.
    2. For the purposes of this application the relevant provisions of FPR 25 are:
“25.10.—(1) An expert’s report must comply with the requirements set out in Practice Direction 25A.
(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.
(3) The instructions to the expert are not privileged against disclosure.
(Rule 21.1 explains what is meant by disclosure.)
Use by one party of expert’s report disclosed by another.”
    1. Similarly, the relevant provisions of Practice Direct 25B are as follows:
“When experts’ reports are commissioned before the commencement of proceedings, it should be made clear to the expert that he or she may in due course be reporting to the court and should therefore consider himself or herself bound by the duties of an expert set out in Practice Direction 25B (The Duties of An Expert, the Expert’s Report and Arrangements for An Expert To Attend Court). In so far as possible the enquiries of the expert and subsequent letter of instruction should follow either Practice Direction 25C (Children Proceedings – the Use of Single Joint Experts and the Process Leading to an Expert Being Instructed or Expert Evidence Being Put Before The Court) or 25D (Financial Remedy Proceedings and other Family Proceedings (except Children Proceedings) – the Use of Single Joint Experts and the Process Leading to Expert Evidence Being Put Before The Court).
In particular, a prospective party to children proceedings (for example, a local authority) should always write a letter of instruction when asking a potential witness for a report or an opinion, whether that request is within proceedings or pre-proceedings (for example, when commissioning specialist assessment materials, reports from a treating expert or other evidential materials); and the letter of instruction should conform to the principles set out in Practice Direction 25C”
The expert’s overriding duty
An expert in family proceedings has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
Particular duties of the expert
An expert shall have regard to the following, among other, duties –

(a) to assist the court in accordance with the overriding duty;

(aa) in children proceedings, to comply  with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in  the Annex to this Practice Direction;

(b) to provide advice to the court that conforms to the best practice of the expert’s profession;

(c) to answer the questions about which the expert is required to give an opinion (in children proceedings, those questions will be set out in the order of the court giving permission for an expert to be instructed, a child to be examined or otherwise assessed or expert evidence to be put before the court);

(d) to provide an opinion that is independent of the party or parties instructing the expert;

(e) to confine the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert’s expertise (skill and experience);

(f) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;

(g) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;

(h) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.

Content of the expert’s report
The expert’s report shall be addressed to the court and prepared and filed in accordance with the court’s timetable and must –

(a) give details of the expert’s qualifications and experience;

(b) include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;

(c) state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;

(d) give details of the qualifications of any person who carried out the test, examination or interview;

(e) answer the questions about which the expert is to give an opinion and which relate to the issues in the case;

(f) in expressing an opinion to the court –

(i) take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;

(ii) describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;

(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;

(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;

(g) where there is a range of opinion on any question to be answered by the expert –

(i) summarise the range of opinion;

(ii) identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;

(iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;

(h) contain a summary of the expert’s conclusions and opinions;

(i) contain a statement that the expert–

(i) has no conflict of interest of any kind, other than any conflict disclosed in his or her report;

(ii) does not consider that any interest disclosed affects his or her suitability as an expert witness on any issue on which he or she has given evidence;

(iii) will advise the instructing party if, between the date of the expert’s report and the final hearing, there is any change in circumstances which affects the expert’s answers to (i) or (ii) above;

(iv) understands their duty to the court and has complied with that duty; and

(v) is aware of the requirements of FPR Part 25 and this practice direction;

(vi) in children proceedings, has complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in  the Annex to this Practice Direction;

(j) be verified by a statement of truth in the following form –

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

Where the report relates to children proceedings the form of statement of truth must include –

“I also confirm that I have complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to Practice Direction 25B- The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court””

    1. In respect of Dr Ayoub, I note there was no letter of instruction, it is unclear what material was provided to him by the mother, save for the imaging taken of Y’s skull and left leg and there is no expert’s declaration as required by FPR 25.10(2). The mother did not when referring this matter to Dr Ayoub comply with the provisions of FDR PD paragraphs 3.1 and 3.2 nor does it appear that the duties of an expert witness, as set out in FDR PD 25B were brought to his attention. There has been a wholesale failure to comply with the comprehensive requirements of PD25B.
    2. When determining the issue of permission to admit Dr Ayoub’s expert into evidence, I have regard to the decision of Peter Jackson J, as he then was, in St Helens Council v M and F (Baby with Multiple Fractures – Re Hearing) [2018] EWFC 1. In respect of Dr Ayoub’s suitability as an expert witness he said at paragraph 42,
“It is not seriously disputed between the parties that if the Family Court had been asked to approve the prior instruction of Dr Ayoub as an expert witness, it would have been unable to do so. There are two fundamental reasons. Firstly, he does not have the necessary expertise to offer an opinion to a court on the origin of radiological appearances in infants, particularly pre-term infants, as they are a patient cohort of which he has no clinical experience. Secondly, his approach is shot through with the dogma that child abuse is over-diagnosed. It does not matter for this purpose whether he is right or wrong. The expert with a scientific prejudice may perform a service to science by asking questions that challenge orthodoxy, but be unsuited to be an expert witness, a role that requires objectivity when giving answers.”
    1. Jackson J continued:
“Nothing in Dr Ayoub’s evidence in the present case led me to a different view. He made himself available at an early hour at personal inconvenience and gave his evidence in a serious manner. However, his evidence was characteristic of his general approach. Having taken up a position, he advanced it with the tenacity of an advocate and was dismissive of alternative possibilities. He entertained no doubts about the correctness of his opinion, a dangerous mindset for any expert witness.”
    1. He concluded at paragraph 44:
“I therefore conclude that the family or criminal courts in England and Wales are unlikely to find that Dr Ayoub meets the requirement that an expert witness must be objective and unbiased. At all events, if it is proposed that he should give evidence in any future case concerning fractures in infants or young children in this jurisdiction, the relevant court should be made aware of the matters contained in this judgment.”
    1. In an email dated 24th July 2015 Dr Ayoub set out his preliminary opinion as follows:
“I did look over the images,
the skull line is not an acute fracture. It is likely a fissure, possibly an old fracture, but in fact, there is a shorter but similar line on the right side
I do not believe the fissure has anything to do with the scalp swelling
the femur was not acute fracture, it was likely a residual from development, and could have been residual defect from earlier life rickets. There was no signs of active rickets and at most some evidence of advances healing rickets from early infancy”
    1. In a subsequent letter dated 18th August 2015 Dr Ayoub set out his qualifications and his academic and clinical experience. He set out his summary of x ray findings, namely:
“1) Y did not appear to have a skull fracture. There were bilateral suture variants in the parietal regions, more prominent on the right side. There was soft tissue swelling of the scalp nearby but not directly overlying the right sided fissure. There was sclerosis along the margins of the defects, also supporting a normal developmental variant.
2) There is flaring of the bilateral distal femurs. There was irregularity along the medical aspects of each lower femur, more prominent on the left side. This is most likely a variation of the perichondral ring. Follow-up examinations failed to demonstrate a healing response known to occur in fractures, supporting the notion of a normal variant.
In conclusion, Y did not appear to have evidence of a skeletal fracture. I have enclosed two papers that describe the nature of both the skeletal variants I have discussed with this brief report (Shapiro, 1972 and Kleinman 2009).”
    1. There are two important matters to note:
i) Dr Ayoub is not a qualified paediatric radiologist; and
ii) his opinion that the x rays did not demonstrate evidence of any fractures is completely at variance with the consensus of expert medical opinion before HHJ Watson in 2010 and is contrary to the expert opinion of Dr Chapman.
    1. In light of the observations of Peter Jackson J in the St Helen’s case (above), I would not have granted permission to seek an expert report from Dr Ayoub. In light of the breaches of s.13 CFA 2014, FPR 25 and PD25A, I am satisfied the opinion of this expert was irregularly obtained. There is other expert evidence available to me: s.13(7)(d) CFA 2014. In all of the circumstances I am wholly satisfied that I should refuse permission for this expert’s report to be admitted in evidence.
    2. The criticisms made in paragraph 35 above in respect of the instruction of and report of Dr Ayoub apply with equal measure to the instruction and report of Professor Holick.
    3. Professor Holick’s report is dated 18th August 2015. In it he recorded the fact of a conversation he had with the mother but not the content of the same. He referred to having reviewed ‘the information and medical records you provided me regarding your son (sic) Case” but does not specify the information he was given nor identify the medical records he received.
    4. Professor Holick is, as set out in his report, a professor of Medicine, Physiology and Biophysics at the Boston University School of Medicine. He specialises in endocrinology, diabetes, nutrition, Vitamin D and bone fragility research. In his report he said of his clinical experience:
“As Director of the Bone Healthcare Clinic, I am responsible for reading all of the bone densities performed at our hospital. I have seen many children and adults with this genetic disorder who have lower bone density than was appropriate for their age. I have personally seen children and adults with this disorder who have had multiple fractures with minimum or no trauma as well as easy bruisability and soft tissue swelling.”
    1. The opinion on Y set out in his report is as follows:
“It is with a high degree of medical certainty that if your son Case has the same genetic disorder as you and several of your family members have this could help explain the soft tissue swelling observed over the right temporoparietal area of the skull and the symmetrical bilateral fissures that were observed. This could also explain the so-called femur fracture. Although there is question that this could be a residual from development even if it was a fracture this could be easily explained by the underlying bone fragility genetic disorder Ehlers Danlos/hypermobility syndrome that your son likely has. I would be happy to see Case in my clinic to determine if he does have this underlying bone fragility genetic disorder.”
  1. Mr Tughan QC and Ms Cook QC both submitted that the issues of Ehlers Danlos Syndrome and its potential connection with resulting bone fragility and/or fractures is a fast-developing area of medical science and is in some aspects controversial. It is, therefore with, real concern to read that Professor Holick expressed his opinion in the terms in which he did, namely ‘It is with a high degree of medical certainty’ etc. Professor Holick had not undertaken a medical examination of the mother nor a medical examination of Y, whom he referred to throughout his report as ‘Case’. I know not why. Crucially there is no explanation, cogent or at all, in his report as to why he could express his opinion with ‘a high degree of medical certainty’ in what is asserted to be a fast developing area of medical science which is in some aspects controversial. Professor Holick provided no clinical, medical or factual evidence to support his opinion. There has been a wholesale failure to comply with the comprehensive requirements of PD25B.
  2. In the circumstances set out above I am satisfied that Professor Holick’s expert report was irregularly obtained. Professor Holick is not a paediatric radiologist. I am not aware of his expertise to provide an opinion on the interpretation of the radiographs as he purports to do. It may be he has relied on the opinion of Dr Ayoub. In light of my conclusions about Dr Ayoub’s report in this matter, such reliance undermines the reliability of Professor Holick’s subsequently expressed opinions.
  3. In the premises I am satisfied I should not give permission to admit Professor Holick’s report into the evidence in this application.