M-M (a child), Re

In child-protection fact-finding proceedings, the clinical investigations required for a child’s treatment are matters for doctors. The evidence required for the forensic determination of causation is a case-management matter for the judge.

The gravity of the possible findings does not require every available investigation or the best theoretically obtainable evidence. The court may stop gathering evidence once the material is sufficiently full and thorough to permit a reliable conclusion. In deciding whether to authorise further testing, the judge may balance its likely evidential value against its invasiveness, accuracy, cost and delay. A refusal will withstand appeal where it falls within the court’s broad case-management discretion.

A very young child was found to have fractures of the ulna and tibia. Care proceedings led to a preliminary fact-finding hearing before Her Honour Judge Coates in Brighton County Court to determine causation and identify any possible perpetrator.

The mother raised the possibility that the child had osteogenesis imperfecta. Professor Patton examined the child and considered that diagnosis extremely unlikely, but recommended genetic testing because of the gravity of the proceedings. The proposed blood test was invasive, cost about £5,000, required six to eight weeks and was not fully accurate.

The judge refused permission for the further test. She nevertheless granted permission to appeal. The central issue before the Court of Appeal was whether that refusal was an unreasonable exercise of the judge’s case-management discretion.

1. Appeal dismissed. The judge’s refusal to authorise genetic testing was a permissible and wise exercise of her case-management discretion. The Court of Appeal upheld her conclusion, and the application was refused.

2. A clear boundary must be maintained between clinical and forensic decisions. Doctors determine what investigations are clinically required to inform the child’s future treatment. The judge determines what evidence is necessary for the proper forensic resolution of causation. Professor Patton and the other doctors were not recommending the test on clinical grounds. To the extent that they expressed an opinion about what the proceedings required, they entered judicial territory.

3. A judge has a particularly broad discretion when making case-management decisions of this kind. The judge was entitled to conclude that the available evidence was sufficient. Professor Patton had found osteogenesis imperfecta extremely unlikely in this child. The judge could also consider the evidence that the proposed test had identified the condition, in the absence of other clinical signs, in only one per cent of 300 researched cases, and that the test was only 90 per cent accurate.

4. The gravity of a possible finding of inflicted injury does not establish a rule that every evidential avenue must be pursued. Nor does a parental denial of abuse make it unreasonable to refuse further testing. Evidence gathering may cease when the material is sufficiently full and thorough to enable the court to reach a conclusion on the applicable balance of probabilities.

5. The proposed test’s slight potential evidential value did not justify its invasive nature, substantial financial cost and resulting delay. Those considerations properly supported the refusal.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 589, unanimously upheld the refusal to authorise further genetic testing and refused the application.

2. Brighton County Court: Her Honour Judge Coates refused the mother’s application for permission to obtain genetic testing for osteogenesis imperfecta, but granted permission to appeal.