Safety first

The criminal prosecutions that followed the death of Baby P in August 2007 were a further reminder of serious failings in the social care system. Somehow a horrific catalogue of abuse had been allowed to continue. In November 2008, two people were convicted of causing or allowing the death of Baby P; his mother having already pleaded guilty to that charge. In May 2009 Baby P's stepfather, who had previously been placed on the child protection register, was also convicted of raping a two-year-old girl.

The government responded to the death of Baby P by announcing a national child protection review by Lord Laming. The local authority in Baby P's case, Haringey, was the same council that found itself at the centre of another child abuse scandal in 2000, after the death of Victoria Climbie. It was therefore particularly pertinent that Lord Laming should now consider the effect of the reforms that he recommended in 2003.

In March of this year, Lord Laming published his 'Progress Report'. One of his recommendations is for the government to abolish the new £4,000 court fee levied on local authorities for initiating court proceedings. The idea had been to enable family courts to pay for themselves. Anecdotal evidence suggested that the £4,000 fee makes some local authorities think twice about issuing applications to take children into care. The government has said that it will review the fee.

Lord Laming thought that the recent reduction in applications to court was due to the introduction in Spring 2008 of the Public Law Outline ('PLO'), a new case management system to shorten the time taken for care proceedings. The PLO requires more pre-proceedings work by local authorities and better quality applications.

Lord Laming and the future of experts

So, what does Lord Laming's 2009 report hold for experts? A number of recommendations were made which focused on child protection strategy, the training of social workers, improving police child protection teams and the shortening of court processes. However, experts did come up as one issue of concern. Lord Laming said the delay in court proceedings had become unacceptable for many children, and part of the reason for that delay was the instruction of experts: 'The view of the judiciary is that in the vast majority of cases the expertise of the professionals already involved with the child should be sufficient expertise and a national expert is rarely required to add weight to a case.'

Lord Laming also commented on what he perceived as an overly cautious approach by professionals: ''¦the secretary of state for health must immediately address the wariness of staff throughout the health services to engage with child protection work. GPs, community nurses and paediatricians must be helped to develop a wider range of skills and become very much more confident in this important area of their work.'

Lord Laming quoted from a research document prepared by the University of East Anglia on the basis of Serious Case Reviews from 2005 to 2007, which identified that there was ''¦a tendency on the part of professionals towards justification and reassurance that all was well, rather than more objective consideration and investigation of what had occurred'.

Lord Laming seems to be urging greater reliance on the opinions of social workers, health visitors and paediatricians in preference to outside experts. They are being encouraged to be more confident in their approach to child abuse cases.

Widespread concern

However, these same professionals will be acutely conscious of what could happen if they are over-zealous. The renowned child abuse expert, Professor Sir Roy Meadow, was struck off the register by the General Medical Council in July 2005 on account of his evidence in the Sally Clark case. He appealed successfully against his striking off; however the case caused widespread concern among experts that their advice in child abuse cases could land them in serious trouble.

The case of D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151 demonstrates how the decision of a professional can give rise to a civil liability. This was the first of three linked cases, involving parents who had been falsely and negligently accused of abusing their children. The Court of Appeal held that the children had an arguable claim, but no duty of care was owed to the parents. It was not just and fair to impose a duty on professionals, whose first concern was the child not the parent. The majority in the House of Lords ([2005] UKHL 23) agreed.

Lord Nicholls gave some guidance on what should be in a doctor's mind when he makes a decision in a child abuse case:

''¦when considering whether something does not feel 'quite right', a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent'¦ The seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigative or protective steps should be taken.'

The ECtHR's approach

The European Court of Human Rights has also recognised the difficulties facing professionals in this particular situation (see RK and Another v United Kingdom [2008] All ER (D) 143 (Oct)). Indeed courts are not always critical of experts, even where a mistake has been made. In the case of Webster (The Parents) v Norfolk County Council & Ors [2009] EWCA Civ 59, Mr and Mrs Webster were the parents of three children. One of those three children was admitted to hospital in 2003 with a number of fractures, which resulted in care proceedings. All three children were taken away from their parents and placed for adoption. The Websters then had a fourth child, whereupon the local authority again applied for a care order. However, this time, expert evidence was adduced showing that the fractures sustained by their child in 2003 were caused by iron deficiency. The Websters applied to set aside the adoption orders, but this was refused. Wall LJ said at para.11 of his judgment:

''¦having read all the papers in the case, and having listened carefully to the arguments, I have come to the conclusion that it would be wrong to criticise any of the social workers or the doctors who advised Judge Barham in the care and freeing proceedings relating to A, B and C (Mr and Mrs Webster's three eldest children). I am satisfied that, in this unhappy case, everybody was doing their conscientious best to give the judge professional advice and to act in what they perceived to be the best interests of A, B and C.'

So what can experts do to avoid criticism by the courts or even worse, being sued for making a mistake?

Avoiding the pitfalls

In childcare cases, the overriding duty of the expert witness is to the court and to the children concerned in the case, irrespective of the source of his or her instructions. This principle is now contained in the 'Practice Direction: Experts in Family Proceedings Relating to Children' which came into force on 1 April 2008. Guidance can also be found in Lord Justice Wall's Handbook for Expert Witnesses in Children Act Cases.

In relation to child abuse compensation claims, Part 35 of the Civil Procedure Rules and its practice direction as well as the 'Protocol for the Instruction of Experts to Give Evidence in Civil Claims' should be compulsory reading for all experts as well as the case of The Ikarian Reefer [1993] 2 Lloyds Report 68. Model forms of experts' reports are available from the Academy of Experts or the Expert Witness Institute. As in childcare cases, there are a number of judgments where the courts have given guidance. In Coxon v Flintshire County Council (26 July 2000 unreported), Scott Baker J commented upon the quality of evidence a court might expect in a child abuse case:

'I make three points about the expert evidence. First there has been a great deal of unnecessary duplication and consequently cost, and secondly a disappointingly large number of the experts (there have been 14 experts in the case) have given me the impression of being rather less than completely objective and impartial. Maybe that has been because of the emotive nature of the case or maybe because the effect the abuse has on an individual's life is very much more a matter of 'feel' than precise analysis and calculation'¦ It is of course helpful to have experts in individual cases flag up documents or highlight aspects of the evidence that may support a particular conclusion. What is not helpful is for an expert to pick out pieces of evidence or entries in documents that support the conclusion this side seeks to reach while not looking for or discarding material that points the other way.'

If experts are less than objective, then courts are not averse to reporting them for misconduct. In Pearce v Ove Arup & Others [2004] EWHC Ch 455, Jacob J held that the evidence of the expert was so irrational that he sent a copy of his judgment to the expert's professional body. Similarly, in Phillips v Symes [2004] EWHC 2330 (Ch), Peter Smith J held that the court might also make orders for costs directly against expert witnesses who had caused significant expense to be incurred, and did so in disregard of their duties to the court.

There are also numerous judgments where the courts have made frank comments on the quality of expert evidence. These labels can very damaging for reputations, as solicitors will be reluctant to instruct an expert who has come in for such criticism. Experts whose evidence has been shown to be unreliable, unproven or unscientific should not be instructed.

Another mistake sometimes made by the expert is to usurp the function of the judge. This may be a natural inclination for highly experienced experts but it is to be avoided at all costs.

It is hoped that the courts' collective experience of past errors will reduce the incidence of miscarriages of justice occurring in the future; however, all professionals must remain wary of the pitfalls.