O M (Children) v Local Authority & Ors

In care proceedings, a treating clinician is not automatically disqualified from giving expert evidence. The court must distinguish clinical treatment from forensic opinion, but the distinction depends on the clinician’s role and objectivity. A party has no automatic entitlement to instruct an additional expert merely because existing evidence originated with treating doctors or lacks an external expert. The judge must decide whether further opinion is needed for a fair determination and whether the proposed expert can make a real contribution. Clinical need for diagnostic testing is distinct from forensic justification, and experts should not determine whether testing is needed to satisfy the court’s standard of proof. Where specialist evidence is extensive and no evidential gap is shown, refusing further expert evidence may be proper case management.

Two children were subject to care proceedings under Part IV of the Children Act 1989. The mother, supported by the father, sought permission to instruct a consultant paediatrician to provide a medical overview and a geneticist to advise on bone fragility and genetic testing. The applications followed medical evidence concerning fractures suffered by the younger child and an unexplained bone condition affecting the older child. HHJ Waine refused the applications on 6 July 2009 and repeated the refusal after hearing the medical evidence in July. The mother sought renewed permission to appeal and appealed against the further refusal. The central issues were whether treating clinicians could properly provide the existing evidence, whether fairness required an independent second opinion, and whether the proposed experts could make a relevant contribution.

The renewed application for permission to appeal was refused and the appeal was dismissed.

1. The distinction between treating clinicians and forensic experts is important but does not create a blanket rule excluding treating clinicians. In Re B (Sexual Abuse: Expert’s Report) [2000] 1 FLR 871, the therapeutic relationship and the clinician’s belief that abuse had occurred made an objective forensic opinion impossible. That situation did not arise here. The principle from the Oldham case, that clinical involvement does not itself prevent a doctor acting as an expert, was applied: [2005] EWCA Civ 1247; [2006] 1 FLR 543.

2. Clinical decisions about treatment and testing must be distinguished from forensic decisions about what evidence is needed to determine the proceedings. Genetic testing was relevant only if it assisted the judge with the forensic issues. The court applied Re M (Care proceedings: Best Evidence) [2007] EWCA Civ 589; [2007] 2 FLR 2006, holding that an expert should not advise on the forensic justification for testing.

3. A party seeking further expert evidence must show a good reason for it and demonstrate that the proposed expert can contribute to the judge’s task. The absence of external, non-clinical expert evidence is insufficient by itself. A second opinion may be necessary to make the process fair, and may resolve the issue or save time and cost, but the decision remains one for the judge. The relevant preliminary question under the Experts in Family Proceeding relating to Children Direction was what the additional doctor could contribute.

4. The existing evidence came from a wide range of specialists and had effectively addressed the relevant possibilities. There was no demonstrated evidential lacuna. The proposed paediatric overview was not made out, and there was no evidential basis for concluding that the proposed geneticist could add anything material. The judge’s refusal of both applications was therefore upheld. A later application could be made if a proper evidential basis emerged.

• Court of Appeal (Civil Division) — The court refused the renewed application for permission to appeal and dismissed the appeal, upholding the refusals of additional expert evidence: [2009] EWCA Civ 1405.
• Northampton County Court — HHJ Waine refused permission to instruct a paediatrician and geneticist on 6 July 2009 and repeated the refusal after hearing the medical evidence in July 2009. The parents’ challenge in the Court of Appeal focused on expert evidence.