D & Anor (Fact-Finding: Research Literature), Re

Medical research cited by experts forms part of the evidence and may, where necessary, be scrutinised to test the cogency of their opinions. A judge must not use research as an independent route to decide causation or allow detailed literature analysis to displace expert testimony and the rest of the evidence. The decision must address the totality, including eyewitness evidence and relevant risk and protective factors. A judge considering findings materially outside the parties’ cases must ensure that they are securely founded and give the parties a fair opportunity to address them. Unsupported speculation cannot sustain findings of negligence or inadequate supervision.

These were appeals by the mother of two children and the father of the younger child against fact-finding findings made by HH Judge Suh in care proceedings in the Family Court at East London. The local authority had sought leave to withdraw after the evidence, but the judge refused and found that the younger child had suffered an earlier acceleration/deceleration injury while in parental care.

The appeals challenged the judge’s treatment of medical research literature, her assessment of the totality of the evidence and wider family circumstances, the fairness of making findings outside the parties’ cases, and the alleged reversal of the burden of proof.

1. The appeals were unanimously allowed. The findings were set aside. As the care proceedings had subsequently ended with no order under section 31 of the Children Act 1989, a rehearing would have been disproportionate. The Court substituted an order granting the local authority leave to withdraw.

2. Research literature cited by an expert is evidence where it is relied on in the expert’s report or put to the expert in cross-examination. Under Part 25 of the Family Procedure Rules and Practice Direction 25B, the expert must identify the literature relied on and explain the range and basis of opinion. The judge is entitled, and where necessary required, to scrutinise the material when evaluating the expert’s opinion: R v Abadom [1983] 1 WLR 126 and Collier v Simpson (1831) 5 C & P 73.

3. That scrutiny has limits. Research must not become a stand-alone method of deciding what happened. The judge is not the expert. In a controversial or uncertain field, disproportionate analysis may distract from the central issue. Research must be assessed with the expert evidence and the evidence as a whole, including the difficulties identified in A Local Authority v AA and Another [2022] EWHC 2321 (Fam) and the contemporary medical position described in Re R (Children: Findings of Fact) [2024] EWCA Civ 153.

4. The judge failed to evaluate the totality of the evidence. The presence or absence of a risk or protective factor does not determine the case by itself, but relevant family circumstances cannot simply be disregarded. The principles in Re T [2004] EWCA Civ 558 and A County Council v K D & L [2005] EWHC 144 (Fam) required the medical evidence to be weighed with the eyewitness and wider-canvas evidence.

5. The judge also relied on an earlier acceleration/deceleration event which had not been properly explored with the experts or addressed by counsel. Findings materially different from the parties’ cases require a secure evidential foundation and a fair opportunity to respond, applying Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10 and Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437. The further findings of recklessness, negligence and inadequate supervision were unsupported by analysis and speculation could not sustain them.

• Court of Appeal (Civil Division) — Appeals allowed on 19 June 2024 under [2024] EWCA Civ 663. The findings were set aside and leave to withdraw was granted.
• Family Court at East London — HH Judge Suh refused the local authority’s application to withdraw, made fact-finding findings on 15 November 2023, and later made no order under section 31 of the Children Act 1989.