Oldham Metropolitan Borough Council v GW & Ors

In care proceedings involving disputed medical causation, the court must decide the facts and must critically evaluate expert opinion rather than treat an apparent professional consensus as determinative. Experts should explain their differential diagnosis, factual assumptions, supporting and contradictory features, the range of orthodox opinion, limitations in research or experience, and the possibility of an unknown cause.

A second expert may be required where specialist evidence concerns an issue critical to the decision. Treating clinicians remain competent and valuable expert witnesses in family proceedings, but their clinical and forensic roles must be distinguished. The court retains responsibility for child-protection decisions and must not permit an expert unconsciously to assume that function.

The local authority brought care proceedings after medical imaging was interpreted as showing brain injuries pathognomonic of non-accidental injury. A county court judge accepted an apparent medical consensus, found that the child had been injured non-accidentally and identified both parents as possible perpetrators.

The Court of Appeal allowed the parents’ appeal by consent after a second paediatric neuroradiologist reached a fundamentally different conclusion. It set aside the findings and remitted the proceedings for rehearing: [2005] EWCA Civ 1247.

Further specialist evidence produced a consensus that the imaging probably reflected profound antenatal asphyxia and was very unlikely to have resulted from inflicted injury. The High Court determined the medical and factual issues, considered why the original process had failed, and gave guidance on expert evidence, case management and publicity.

1. Disposition. The child had never suffered non-accidental injury. His parents’ care had always been exemplary, and they and the wider family had acted promptly and appropriately in obtaining treatment. The medical consensus established that the brain changes probably resulted from transient but profound asphyxia before delivery and were very unlikely to have been inflicted. The care proceedings were brought to an end.
2. Expert evidence. The court, rather than an expert, determines facts to the civil standard. An expert should identify the differential diagnosis, the assumptions and deductions underlying the opinion, and the features supporting or contradicting each possibility. The expert should disclose the range of orthodox opinion, the limits of personal experience and research, and whether the cause may remain unknown. Describing the imaging as pathognomonic obscured the unusual and inconsistent features of the case, although the expert had genuinely held a permissible professional opinion and had complied with his duties.
3. Judicial responsibility. An expert clinician must leave the ultimate child-protection decision to the court once proceedings begin. The expert in this case had unconsciously moved from advising on medical questions to making a child-protection decision, while the first-instance court failed to detect that change of role. Apparent professional agreement cannot replace the court’s independent evaluation of the reasons, evidence, internal logic and limitations underlying expert opinions.
4. Additional expertise. Experts should be asked at the earliest stage, and should volunteer, whether another discipline or a second opinion is needed on a critical issue. The apparent consensus in this case was not genuine because all the other clinicians had deferred on the decisive imaging question to the only radiologist who professed the necessary expertise.
5. Treating clinicians. Treating experts should not be excluded from family proceedings. They are subject to the same duties to the court as forensic experts and may provide irreplaceable contemporaneous observations, histories and tests. The court must nevertheless recognise and scrutinise the distinct purpose and perspective of each role.
6. Publicity. The judgment was delivered publicly to explain the miscarriage of justice and assist future practice. As the proceedings had ended, statutory provisions no longer protected the family’s identity. The court therefore maintained a separate reporting restraint order protecting the child and parents until the child’s majority.

1. High Court (Family Division): On remittal, the court found that the child had not suffered non-accidental injury, accepted the new medical consensus and concluded the care proceedings: [2007] EWHC 136 (Fam).
2. Court of Appeal: The parents’ appeal was allowed by consent, the findings of non-accidental injury were set aside and the case was remitted for rehearing. The court subsequently gave guidance on second expert opinions: [2005] EWCA Civ 1247; [2006] 1 FLR 543.
3. County Court: Her Honour Judge Newton accepted the apparent medical consensus, found that the child’s injuries were non-accidental and held that either parent might have been responsible. She refused permission to obtain the proposed second neuroradiological opinion.