County Council v Y & Anor

Still colposcope photographs of a child’s genitalia may materially misrepresent what is seen during clinical examination and should therefore be interpreted with caution. Where contemporaneous medical notes, reports, diagrams and photographs cannot be reconciled, each source should be assessed separately. A further intimate examination may be preferable where necessary to avoid a grave miscarriage of justice, notwithstanding the important medical, psychological and ethical reasons for minimising such examinations.

The local authority brought care proceedings concerning two children after medical examinations and photographs appeared to indicate that the elder child had suffered penetrative sexual abuse. The proceedings followed an earlier Court of Appeal decision, Re Y and K (Split hearing: evidence) [2003] EWCA Civ 669, which reinstated the proceedings and directed a fresh hearing.

Before the fresh hearing, two expert doctors re-examined the child and concluded that she had a normal hymen, apart from a cyst, and that the earlier photographs were unreliable. All parties then supported permission for the local authority to withdraw its care applications. The judge’s purpose was to record possible lessons from the medical evidence, not to determine disputed facts.

1. The court granted permission for the local authority to withdraw its applications for care orders, bringing the proceedings to an end. The judge made no findings of fact and did not adjudicate upon the allegations.
2. The medical history demonstrated the danger of treating still colposcope photographs as an accurate representation of a child’s genital anatomy. The photographs may be affected by the three-dimensional and dynamic nature of the hymen, the child’s position and relaxation, the examiner’s technique, the traction applied, the equipment and the photographer’s familiarity with it.
3. Where serious discrepancies exist between contemporaneous medical notes, reports, diagrams and photographs, the reliability of each element must be assessed separately. If necessary, the child should be re-examined. The later examination in this case caused the experts to withdraw their earlier conclusions and regard the earlier photographs as misleading.
4. The minimisation of intimate examinations remains an important medical, psychological and ethical objective. Nevertheless, a further examination may be justified where it is necessary to reduce the risk of a grave miscarriage of justice and irreparable harm to the child’s family.
5. The judge drew the observations to the attention of the medical and legal professions and suggested that relevant professional guidance concerning reliance on still or video colposcope photographs might require reconsideration.

• Court of Appeal The earlier first-instance decision was appealed by the children’s guardian and the local authority. The proceedings were reinstated and a fresh hearing directed in [2003] EWCA Civ 669.
• High Court (Family Division) Permission was subsequently granted for the local authority to withdraw its care applications. The proceedings ended without findings on the allegations.