TG (A Child)

TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.

Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.

At this point I should interpose the father’s account of an incident which the parents believe may have caused some at least of TG’s injuries. I understand the local authority to point to what are said to be various discrepancies in the parents’ accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father’s account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:

“I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.

I can only assume that TG’s chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG’s head and chest area.”

We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby’s comparatively low centre of gravity and the fact that the baby’s bottom is not very high off the floor the chair is stable when placed on the floor.

At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.

In preparation for a case management conference on 25 September 2012, Mr Aidan Vine on behalf of the father set out his argument in support of his contention that biomechanical engineering evidence is relevant in this case. He said:

“Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage.”

The request made by Mr Vine at the hearing on 25 September 2012 was not supported by a formal application under Part 25 of the Family Procedure Rules 2010. Judge Bellamy directed that the issue be further considered at a hearing on 1 October 2012. Mr Vine was unable to attend the hearing on 1 October 2012, the father being represented on that occasion by other counsel. Having heard submissions, Judge Bellamy refused to grant permission. There was no application for permission to appeal. But when Mr Vine became aware of Judge Bellamy’s decision to refuse the application he immediately sought to have the matter relisted with a view to seeking further reasons for the judge’s decision and/or to be permitted to advance further argument and/or for permission to appeal and for an extension of time within which to file notice of appeal.

Judge Bellamy heard further submissions from Mr Vine on 18 October 2012. Again he declined to give the father the permission he sought, although permitting him to file by 9 November 2012 an interim report from Dr Van Ee as to (i) the potential relevance of biomechanical engineering to the causation of TG’s injuries (ii) the nature of the tests he proposed to utilise if permission was granted for him to undertake a full report and (iii) his ability to work to the court timetable for the finding of fact hearing due to commence on 28 January 2013.

Dr Van Ee is a biomechanical engineer based at Wayne State University in the USA. He has specific expertise in the analysis and risk assessment of head injury in the infant and adult population. His area of expertise and training with respect to head injury is in identifying and quantifying the mechanisms for and the risks of traumatic head injury and the evaluation of injury prevention devices and strategies. He appeared as an expert witness before Theis J in Islington London Borough v Al Alas & Ors [2012] EWHC 865 (Fam), [2012] 2 FLR 1239. The local authority does not challenge Dr Van Ee’s credentials as an expert witness in this particular field.

In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as “the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response”; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, ‘Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture’, and Van Ee, Raymond, Thibault, Hardy and Plunkett, ‘Child ATD Reconstruction of a Fatal Pediatric Fall,’ which he says “further refine head injury tolerance for skull fracture and intracranial trauma.” He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother’s suspicion that “MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG’s head … when MG tried to get off, the chair flipped forward 180 degrees”. He set out a ‘Suggested Plan for Further Analysis’ which I reproduce as an Appendix.

As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:

“Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage.”

Dr Van Ee also contemplated experiments using a number of children of MG’s age “sitting down rambunctiously” to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.

Dr Van Ee ended his interim report with an estimate of the cost – between $18,500 and $22,000 – and said that if given at least five weeks’ notice he could complete the work by mid to late January 2013. By the time Judge Bellamy came to give judgment on 5 December 2012, the position was that Dr Van Ee could produce his final report by Friday 25 January 2013, the last working day before the finding of fact hearing begins on 28 January 2013.

In a position statement prepared for the hearing on 3 December 2012, Mr Vine contended that there are a number of strands of evidence which make this an unusual case in the context of suspected non-accidental head injury. In particular, he said:

“TG was just eleven days old when his injuries were discovered; (ii) his Mother has a relevant familial genetic history of Graves’ disease; (iii) TG was vitamin D deficient at the time of his injuries (but not “sufficiently so” per the letter from the hospital endocrinologist); and (iv) Professor Taylor’s initial response in an email to the lead solicitor for his instruction dated 26 November 2012 15:38 is “the retinal haemorrhages look mild which does not suggest NAI”, suggesting they must have a different aetiology.”

The father’s application was supported by the mother. It was opposed by the local authority. The most important point made by Mr William Tyler for the local authority was that the tests which Dr Van Ee proposed to undertake amount to a reconstruction in a case where it is impossible to arrange for a meaningful reconstruction given that no-one – not even the father – witnessed the incident he described. The ‘reconstruction’ would therefore be based upon speculation as to what actually happened. At best, he submitted, biomechanical engineering evidence in this case would be of no more than tangential relevance, so to allow it would offend against the principle of proportionality.

On behalf of the children, Ms Catherine Gargan put in what Judge Bellamy described as a very balanced skeleton argument identifying factors which supported the father’s application and other factors which pointed against allowing the father’s application.

Judge Bellamy heard the application on 3 December 2012. He delivered a written judgment on 5 December 2012 to whose clarity and incisiveness I should like to pay tribute. Yet again, he dismissed the application. The same day, he refused the father permission to appeal on the basis that an appeal had no real prospect of success.

In his judgment Judge Bellamy reminded himself of the provisions of Part 25 of the Family Procedure Rules 2010 and the accompanying Practice Direction 25A, as also of Practice Direction 12A. He went carefully through the relevant passages in the authorities to which he had been referred: R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269, [2011] 1 FLR 547, and Islington London Borough v Al Alas & Ors [2012] EWHC 865 (Fam), [2012] 2 FLR 1239.

Referring to Mr Vine’s four points, Judge Bellamy commented:

“With respect to points (ii) and (iii) the recently received medico-legal report from Dr Shaw suggests that these factors are not significant in this case. With respect to point (iv), in an e-mail to the lead solicitor dated 26 November, Professor Taylor says that he has ‘not found engineer’s reports very helpful in reporting on the eye injuries in similar cases.’”

Rejecting the father’s application, Judge Bellamy set out his reasoning in a passage which I should repeat in full:

“I can find nothing in these authorities that leads me to the view that biomechanical engineering evidence is reasonably required in this case, whether as a matter of fairness to the father or otherwise.

I rejected an earlier application by the father. There was no appeal. Since then the reports of the medical expert witnesses have begun to come through. Reminding myself again of the need to tread cautiously given that there are still three medical experts left to report and the evidence of those who have so far reported has not yet been tested in court, it is nonetheless the case that on the basis of Dr Fairhurst’s report either the rib fractures and the skull fractures arise from two separate incidents (in which case the father’s explanation could at best only be an explanation for one of them) or a single incident occurring … before the date of the incident described by the father.

In the light of that evidence as to timing, it is difficult to see what Dr Van Ee has to contribute to the forensic exercise that cannot equally (and more appropriately) be contributed by the medical experts who have already been instructed.

The proposed cost of Dr Van Ee’s report is, in my judgment, disproportionate to the likely benefit to be derived from it. Furthermore, and more importantly, to allow the father’s application knowing that Dr Van Ee is not able to report until 25 January is tacitly to accept that the fact finding hearing may need to be put back in order to accommodate his evidence. Given the ages of these children and the fact that these proceedings have already been in train for approaching six months, that delay, if it occurred, could not be described as purposeful or proportionate and would in my judgment fly in the face of the general principle set out in s 1(2) Children Act 1989.

I have outlined the procedural rules in detail. I am satisfied that on a proper application of the approach required by those rules to the facts of this case, the father’s application should be dismissed.”

On 7 December 2012 the father filed his appellant’s notice, supported by grounds of appeal and a skeleton argument both prepared by Mr Vine. The matter was urgent, given that the finding of fact hearing was listed for 28 January 2013. On 14 December 2012 I adjourned the application for permission to appeal into court, listing the matter for 20 December 2012 and directing that the appeal was to follow immediately if permission was granted. On 18 December 2012 the father issued an application seeking to adduce additional evidence before us in the form of a letter dated 15 December 2012 from Dr Anslow. We admitted the letter de bene esse. Dr Anslow says:

“The question then arises who should address the issue of the alleged mechanism of injury in this case?

It is my view that no medical doctor can properly address this issue – they do not have the necessary knowledge or training. The issue can only be addressed by an expert in trauma biomechanics. If this expertise is not obtained then the doctors in the case will be asked to express an opinion outside their expertise – a wholly unsatisfactory, inconsistent and unscientific approach.

I strongly support the notion that an expert biomechanics report be obtained.”

When the application came on before us we were greatly assisted by the fact that the constitution included a judge of the Family Division, who was able to bring to bear a more recent experience of such cases at first instance than the other members of the court. We were particularly fortunate that it was Hedley J who was able to sit with us, given his particular experience of similar cases not merely at first instance (see, for example, Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384) but also in both the civil and criminal divisions of the Court of Appeal (see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, and R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269, [2011] 1 FLR 547).

The father, the mother, the local authority and the children’s guardian were all represented by counsel, each of whom had a clear and helpful skeleton argument. The mother aligned herself with the father in supporting his application. It was resisted by the local authority, supported by the children’s guardian. At the end of the hearing we announced that although we granted the father permission to appeal we had decided to dismiss the appeal. We now hand down our reasons.

As will be appreciated the appeal is against a case management decision. Before turning to the issues specific to this particular case, it may be of assistance if I rehearse some basic principles.

(1) First, active judicial case management has for some years now been an integral and essential part of practice in family cases, as it is for all other civil and criminal cases. The obligation of the court to further the overriding objective, as set out in rule 1.1 of the Family Procedure Rules 2010, is now enshrined in rules 1.2 and 1.4. The overriding objective as defined in rule 1.1(1) is that the court should “deal with cases justly, having regard to any welfare issues involved.” Rule 1.1(2) provides that this includes, so far as is practicable:

“(a)

ensuring that [the case] is dealt with expeditiously and fairly;

(b)

dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)

ensuring that the parties are on an equal footing;

(d)

saving expense; and

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

Essential aspects of case management are set out in rule 1.4(2). Of particular relevance for present purposes, this provides that active case management includes:

“(b)

identifying at an early stage –

(i)

the issues; …

(c)

deciding promptly –

(i)

which issues need full investigation and hearing and which do not; and

(ii)

the procedure to be followed in the case;

…

(g)

fixing timetables or otherwise controlling the progress of the case;

(h)

considering whether the likely benefits of taking a particular step justify the cost of taking it;

…

(l)

giving directions to ensure that the case proceeds quickly and efficiently.”

(2) Second, an essential part of appropriate case management is the power of the court to control evidence. Rule 22.1 provides that:

“(1)

The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible.

…

(4)

The court may limit cross-examination.”

In this connection I venture to repeat what I recently said in Re C (Children) [2012] EWCA Civ 1489, paras [14]-[15]:

“… these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application … should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may … decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.”

I returned to the same theme in Re B (A Child) [2012] EWCA Civ 1545, para [19]:

“even in family cases the days are long past when a litigant was entitled to call however many witnesses he or she wanted. The court as part of its case management powers has undoubted jurisdiction to determine the way in which the case is to be argued, whether the case is to be argued on paper, whether the case is to be argued with witnesses giving oral evidence, who those witnesses should be, what issues they should give evidence on, and so on and so forth. Plainly, this being a final hearing, it was appropriate for the judge to contemplate that the witnesses would give oral evidence, but the mere fact that she limited the number of witnesses in the way in which she did does not of itself demonstrate any error on the part of HHJ Robertshaw; it was in principle within the scope of her case management powers to determine that the witnesses she had identified were the witnesses who the court required to hear in order to determine the issues raised before it.”

(3) Third, the court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Rule 25.1 provides that:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.”

Thus the Family Procedure Rules as they are today and as they were when Judge Bellamy had to decide what was to happen in the present case. But they are very shortly to be modified. With effect from 31 January 2013 the amendments made by The Family Procedure (Amendment) (No 5) Rules 2012 come into force. Rule 1.4(2) is re-cast to provide (paragraph (e)) that active case management includes “controlling the use of expert evidence.” Rule 25.4(1) is also re-cast, to provide that:

“In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.”

Rule 25.1 is significantly amended, to provide that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

It is a matter for another day to determine what exactly is meant in this context by the word “necessary”, but clearly the new test is intended to be significantly more stringent than the old. The text of what is “necessary” sets a hurdle which is on any view significantly higher that the old test of what is “reasonably required.”

Whether applying the present test or the new test, the case management judge will have to have regard to all the circumstances of the particular case. The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: see W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. But although the case management judge must be alert to the risks, the potential for such tragedies does not entitle a parent in care proceedings to an expert for the asking: see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, paras [15]-[18]. Nor does it relieve the case management judge of the duty to exercise his or her discretion in accordance with the various provisions of the Family Procedure Rules to which I have drawn attention.

In every care case, as indeed in every case, the case management judge will need to assess and evaluate the degree of likelihood that a particular expert’s evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed. It is vital that the case management judge keeps an open mind when deciding whether or not to permit expert evidence. The judge will need to be alert to the risks posed by what may turn out to be ‘bad science’. On the other hand, the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case: consider, for example, what happened in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378.

In this connection the case management judge will also need to bear in mind what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10]:

“there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.”

My Lord elaborated the point in an important passage (para [19]) which merits quotation in full:

“I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children) [2012] EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.

As against all this, we must never forgot the point made by Dame Elizabeth Butler-Sloss P in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]:

“The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

(4) Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney [2012] EWCA Civ 1235, paras [17], [30], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, paras [25], [45], [46]. Of course, the Court of Appeal must and will intervene when it is proper to do so. However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964, paras [37]-[38], [47], Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427, para [33], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, para [46]. This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964, para [47]:

“Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process.”

Second, as she went on to observe:

“the judge dealing with case management is often better equipped to deal with case management issues.”

The judge well acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and ‘feel’ for the case superior to that of the Court of Appeal.

Exactly the same applies in family cases. Thus in Re C Thorpe LJ and I dismissed the appeal notwithstanding what I said was the “robust view” His Honour Judge Cliffe had formed when deciding to stop the hearing. And in Re B I refused permission to appeal from an order of Her Honour Judge Miranda Robertshaw involving what I described (para [16]) as “appropriately vigorous and robust case management.” I said (para [17]):

“The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case which they are managing. This court can intervene only if there has been serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.”

As Black LJ very recently observed in Re B (A Child) [2012] EWCA Civ 1742, para [35]:

“a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.”

None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in Re B, para [48]:

“Robust case management … very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

(5) Fifth, in evaluating whether an appellant meets the high threshold required to justify its intervention, the Court of Appeal must have regard to and must loyally apply the principles laid down by Lord Hoffmann, speaking for a unanimous House of Lords, in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. In relation to appeals against the exercise of discretion it is conventional to refer to the classic authority of G v G (Minors: Custody Appeal) [1985] 1 WLR 647. Nowadays it is perhaps more helpful to refer to Piglowska v Piglowski, where Lord Hoffmann, having set out the key passages from G v G and from the later decision of the House in Biogen Inc v Medeva Plc [1997] RPC 1, continued with this vitally important observation:

“reasons for judgment will always be capable of having been better expressed … reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

I return to the present case and to the question of biomechanics. The question has arisen in a number of cases in recent years. It is convenient to take them in chronological order.

The first is R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [213], where Gage LJ giving the judgment of the court (Gage LJ, Gross and McFarlane JJ) said this with about biomechanical evidence:

“This is a complex, developing and (as yet) necessarily uncertain area of science, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault.”

Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, not referred to by Judge Bellamy, was an appeal against, amongst other things, the refusal of the case management judge in care proceedings to permit the parents to instruct Professor Hayes, professor of mechanical engineering at Oregon State University. Dismissing the appeal on this point, Wilson LJ, as he then was, said this (para [20]):

“In the present case the argument was, and is, that biomechanical engineering evidence could, by saying that it was either possible or impossible, help to confirm or refute the father’s account that his tripping against the blanket and causing B to hit her head against the door frame caused or triggered her injuries. At best this argument is premature. Mr Collier casts this argument upon the basis that it might assist the medical experts in their review of the case. But let us see whether it does assist them, indeed whether they contend that they would be thereby assisted. It is possible that, when their evidence is collected, it might throw up the need for expert evidence of this character, whether to be given by the distinguished American professor or otherwise. In my view, however, the likelihood is that even at that stage the procurement of such evidence will be seen as unnecessary … I have to say that, in my long and recent experience of trial work in the Division, I have determined a number of cases in which parents put forward versions of events involving a sudden impact of the child’s head upon some sort of surface in the course of an accident; and I cannot recall a case in which I considered, or in which it was suggested to me, that the probabilities could not safely be balanced without biomechanical evidence.”

Moses LJ and Hedley J agreed.

The next case is R v Henderson; Butler; Oyediran [2010] EWCA Crim 1269, [2011] 1 FLR 547, para [182], where Moses LJ giving the judgment of the court (Moses LJ, Rafferty and Hedley J) said this:

“It must be recalled that it was part of the appellant's case at trial that the baby’s injuries may have been attributable to a fall whilst being held by his mother. This possibility was rejected by the jury. We do not think that the [biomechanical engineering] evidence of Dr Jones could afford any ground for allowing the appeal. Dr Jones accepted, both in his oral evidence and in his written report, that there was very little data to be derived from experiment, as we would expect. He also accepted, both in his oral evidence and in his report, the difficulty of drawing conclusions because of the complexity of a baby's brain. This court, in the Cherry appeal in R v Harris & Others [2006] 1 Cr App R 5 heard conflicting evidence from biomechanical engineers, both in relation to the injury to be expected from a fall and the extent to which injury could be caused by shaking (see [81-96]). At [213(iv)] the court described the science of biomechanics as “complex, developing and (as yet) necessarily uncertain”. Nothing that we heard from Dr Jones led us to take a different view as to the science from that adopted by the court in Harris. Nothing we heard from Dr Jones leads us to question the safety of the jury’s verdict.”

The most recent authority is the decision of Theis J in Islington London Borough v Al Alas & Ors [2012] EWHC 865 (Fam), [2012] 2 FLR 1239. In that case biomechanical evidence was permitted and, as I have mentioned, was given by Dr Van Ee. However it is revealing to note, as Judge Bellamy observed in his judgment in the present case, that in Theis J’s otherwise lengthy and detailed judgment the biomechanical evidence merited only a two paragraph reference and was not mentioned at all in the analysis section of the judgment. In those two paragraphs ([185]-[186]) Theis J said this:

“Dr Van Ee is a Professor of Biomechanical Engineering at Wayne State University, working part time. The balance of his time he works for a commercial consulting agency. He has a PhD in Biomechanical Engineering and his area of academic and scientific research is in impact and orthopaedic biomechanics. He studies the influence of forces or impacts on the human body and the injuries the body can sustain. The focus of his research is to define the level of forces or the nature of forces that result in specific types of injuries. The orthopaedic biomechanics is more the study of bones and joints and orthopaedic interventions, such as artificial joints, braces etc which can protect the person from injury during an impact.

I can take his evidence quite shortly as it doesn’t contain anything that is not already known to these courts or is already before the court from other witnesses. His evidence both at the CCC and in this hearing made clear there is little data to be derived from experiment and the enormous difficulties in drawing conclusions because of the complexity of a baby’s brain. He concluded from his tests and expertise that the mechanism of shaking is unlikely to result in the angular accelerations necessary to tear the cranial vessels resulting in intradural haemorrhage including traumatic SDH, however he accepted that trauma to the head is associated with SDH. He said violent shaking is much more likely to result in neck and torso injuries than an isolated head injury; a child with decreased bone strength would be more likely to incur chest, rib and cervical injury from a shaking mechanism and there were no signs of external trauma consistent with a shaking injury or impact.”

During the course of argument in the present case, Hedley J asked Mr Vine whether he was aware of any case, criminal or family, in which biomechanical evidence had been found to be of any significant assistance to the court. My Lord added that he was not aware of any such case. No such case was identified at the Bar and we are not aware of one.

Having got to this point, I must now return to the details of the present case and identify the opposing contentions put before us by counsel.

Mr Vine submitted that in refusing the father permission to adduce biomechanical evidence Judge Bellamy exceeded his case management discretion and was unfair to the father. The effect of his decision was to prevent the father adducing relevant evidence on what, says Mr Vine, is the central issue of whether the accidental explanation offered by the parents was capable of generating sufficient force to have caused the alleged injuries. In relation to this he relies upon the decisions of the Strasbourg court in Terra Woningen v Netherlands (1996) 24 EHRR 456, paras [52]-[54], and Mantovanelli v France (1997) 24 EHRR 370, para [33], as demonstrating that the fairness of the proceedings ‘taken as a whole’ which Article 6 demands entails both the right for a litigant to adduce any evidence needed for his claims to succeed and the expectation that the court will not deprive itself of jurisdiction to examine facts which are crucial for the determination of the dispute. If Judge Bellamy’s decision stands, he says, the question of the forces generated will be left to doctors for whom physics and biomechanics are not a central part of their expertise and the court will be deprived of material evidence.

Mr Vine asserts that the appeal raises a point of law of general importance, namely the admissibility of biomechanical evidence in suspected non-accidental head injury cases. He says that the question of the forces generated by the bouncy chair overturning will be a central issue; it is a question of physics and biomechanical engineering; and one outside the direct experience and expertise of the various medical experts already instructed. He points to the authorities I have referred to as showing, as he would have it, that the criminal division of the Court of Appeal has recognised the importance of biomechanical engineering in this context and that biomechanical evidence has been permitted in both the criminal and the family jurisdictions. He took us to R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [148], where Gage LJ referred to “the growing science of biomechanics” as having “had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries.” Judge Bellamy, he complains, gave no clear reason in his judgment for departing from what was, he says, the approach in both Harris and Henderson.

Mr Vine points to various features of the case which, he says, makes it “unusual” for a suspected non-accidental injury / head injury case. Importantly, he says, no doctor has yet identified the mechanism by which TG’s injuries were caused non-accidentally. Finally, he submits, neither the cost nor the possible need to adjust the timetable should have been allowed to stand in the way of permitting biomechanical evidence to be adduced, given the issues at stake.

Ms Jacqueline Matthews-Stroud on behalf of the mother adopted Mr Vine’s submissions. She referred us to the fact that the mother remains on bail pending a decision as to whether she should be prosecuted. She suggested that the instruction of Dr Van Ee at this stage might avoid the possibility of findings made at the fact finding hearing being subsequently challenged and having to be re-litigated in the light of expert evidence obtained by the defence for the purpose of any criminal trial.

Mr Tyler on behalf of the local authority submits that it cannot be said either that Judge Bellamy’s exercise of discretion was flawed in any way or that it was wrong, let alone ‘plainly wrong’.

On the central issue Mr Tyler has three submissions. The first is that there is no witnessed incident to reconstruct. Even on the father’s account he did not witness it. Moreover, says Mr Tyler, the father’s account has varied over time. So the crucial question is: what is a biomechanical engineer here to recreate? What, he asks, is being tested? Whether a toddler could overturn the bouncy chair and in doing so create the requisite forces? If so, how: forwards, backwards, sideways? In one movement, or a number? And so on. Thus, even were biomechanics an established and tested scientific discipline with a track record of assisting the family courts, this is not, he says, a case in which any assistance could be gleaned. He also asks rhetorically, what is the purpose of biomechanical testing in relation to the rib fractures, as proposed by Dr Van Ee, when the radiological evidence dates them as having occurred earlier than the incident recounted by the father?

Mr Tyler’s second submission is that in any event biomechanics is not yet established as being of any use in a case such as this. Properly read, he says, the authorities relied upon by Mr Vine do not establish what he seeks to derive from them. He concludes a careful analysis of the cases with the submission that, whilst it is certainly true that various courts have allowed the instruction of experts in the field of biomechanics (including, as we have seen, Dr Van Ee), it is rather less clear that any court has derived any significant assistance from such evidence. Mr Tyler accepts that in a case where there is a single, witnessed and reconstructable incident said to have caused the totality of the suspect injuries there may be a place for such expertise – a proposition which, he suggests, will probably require some degree of ‘case by case’ evaluation in the Family Division over time. But this, he says, is simply not such a case.

Mr Tyler’s third submission is that the court, informed as it will be by the other five experts, has no need of such evidence or assistance as could be obtained by biomechanical reconstruction. This is not, he says, a particularly unusual case, whether as suggested by Mr Vine or otherwise. Given that there are already five other experts, the assertion that the refusal to allow the father to adduce evidence from Dr Van Ee would involve a breach of Article 6 is, he says, simply wrong. He points to the fact that, in contrast to Dr Anslow, Drs Shaw and Cartlidge and Professor Taylor have each, with varying degrees of emphasis, expressed scepticism as to the utility of biomechanical evidence. He ends with a floodgates argument: if biomechanical evidence is permitted in this case, where an unwitnessed incident is said to account for injuries some of which in any event pre-date the incident, then, he says, it is hard to see how such evidence could be disallowed in many, many routine care cases up and down the country.

Ms Gargan, in the skeleton argument she prepared on behalf of the children’s guardian, adopted “in full” the submissions made by Mr Tyler in his skeleton argument. At the hearing of the appeal, Ms Kate Tompkins, who appeared in the unavoidable absence of Ms Gargan, confirmed this position orally.

Despite Mr Vine’s attractively presented submissions I have to say that I have no doubt as to the outcome of this appeal. Judge Bellamy directed himself correctly as to the principles he had to apply, he did not misunderstand the law, he took into account everything that was relevant, he did not take into account any irrelevant matters and, at the end of the day, he exercised his discretion in a manner that, far from being ‘plainly wrong’ was entirely reasonable. Nor can any complaint sensibly be made about his reasoning as set out in a judgment which more than adequately explains why he was deciding as he did.

Mr Vine has failed to establish any ground on which this court could properly interfere. Were we to interfere we should be doing the very thing that Lord Hoffmann has explained we must not.

Given the importance of the issues it would not appropriate for us to leave it there. So I must explore in rather more detail why, as it seems to me, there is no basis of challenge to Judge Bellamy’s decision.

At the outset I should clear two matters out of the way. Mr Vine, as we have seen, suggests that the present appeal raises a point of law of general importance, namely, as he identifies it, the admissibility of biomechanical evidence. With all respect to Mr Vine, it raises no such question. The local authority does not challenge the admissibility of Dr Van Ee’s evidence, any more than it challenges his expert credentials. And in any event the question of admissibility is not determinative, because rule 22.1(2) empowers the court to exclude evidence that would otherwise be admissible. The issue before Judge Bellamy was rather, in accordance with rule 25.1, whether Dr Van Ee’s evidence was “reasonably required” – and it was to that question that Mr Tyler appropriately directed his submissions both here and below.

Mr Vine also mounted an argument based on Article 6. Plainly, Article 6 is engaged, as are the principles set out in the two Strasbourg authorities to which he took us. But this does not, in my judgment, take him anywhere. The relevant statutory scheme, including the relevant provisions of the Family Procedure Rules, is Convention compliant. No-one has suggested the contrary. And a case management judge who properly applies the statutory scheme and the Rules will be acting in a Convention compliant way. There is nothing in the Strasbourg jurisprudence to entitle a litigant to demand that he be permitted to call whatever evidence he wishes. So far as material for present purposes what the Convention requires is a ‘full merits’ investigation by a court and a procedure which ‘taken as a whole’ is fair. The fact finding hearing will involve a ‘full merits’ investigation by the High Court. The refusal to permit the father to adduce evidence from Dr Van Ee involves no unfairness and breaches neither of the principles upon which Mr Vine relies.

I return to the biomechanical issues.

In the present case the hypothesis is that the bouncy chair tipped over forwards, rotating, with TG strapped in, about the fulcrum represented by the two points of the V at floor level. Although no doubt the actual analysis and calculations are more complex, the basic principles of the mathematics and physics which are here engaged will be familiar to many. Simple geometry demonstrates that on this hypothesis TG’s head will have travelled through the arc of a circle, the radius of which is the distance between his head and the points of the V. The first part of the arc is that part of the trajectory as the chair is tipping forwards until the head is vertically above the fulcrum; the second part of the arc is that part of the trajectory where the head rotates forwards through 90º from the vertical until it hits the floor.

It will be appreciated that in a case such as this there are two questions of particular importance. (1) What is the amount of force required to pull (or push) the bouncy chair forwards until it reaches the tipping point at which, if unsupported, it falls forward under the force of gravity until the baby’s head hits the floor? Alternatively, on the mother’s hypothesis, what is the amount of force required to pull the chair backwards as far as it will go before it is released, springs forwards and (assuming this is even possible) reaches the tipping point? (2) What are the forces exerted on the baby’s head and upper body as it hits the floor? In principle, one would expect well known principles of Newtonian physics to be capable of providing at least approximately accurate answers to both these questions once one has fed into the relevant calculations factors such as the radius of the notional circle, the baby’s weight and the location of the baby’s centre of gravity.

But the answer to the second question will depend upon a number of other factors: What is the rotational speed of the baby’s head as it passes the tipping point? This will in turn depend upon the mechanism by which the baby’s head reached that point. On the mother’s hypothesis, the bouncy chair will have acted as a spring, projecting TG forward, potentially at some speed, as MG released his weight from behind. If, on the other hand, the bouncy chair was pulled forwards from the front, then the rotational speed at the tipping point may have been less, possibly much less or even zero. What, if any, forces, other than gravity, were operating once the baby’s head had passed the tipping point? This again will depend upon the mechanism. On the mother’s hypothesis the only forces would seem to be (i) the forces reflecting the rotational speed as TG’s head passed the tipping point and (ii) gravity. If, on the other hand, the bouncy chair was pulled forwards from the front, then there may have been additional forces, either pulling the baby forwards and downwards or, possibly, working in the other direction to restrain its free fall.

Now one does not, I think, need the expertise of a biomechanical engineer to demonstrate what every parent will know, that an eleven-day old baby strapped into a bouncy chair is simply incapable of generating the forces required to tip the chair over. So if TG’s bouncy chair was tipped over as the father describes there must have been an external actor, and the only possible actor who has been identified is TG’s 13-month old sibling, MG. So the thesis is that, somehow, MG tipped the bouncy chair over thereby causing at least some of TG’s injures.

I entirely accept that a biomechanical engineer will, in principle, be able to obtain values, whether by theoretical calculations and/or by experimental measurements, and in relation to a variety of postulated factual scenarios, for (a) the forces required to tip the bouncy chair over with TG in it (what I will call the ‘tipping forces’) and (b) the forces applied to TG as his body and head hit the floor (what I will call the ‘impact forces’). But that information of itself is of very limited value in the present case. There are three problems.

First, we simply do not know, even on the father’s case, what actually happened. Was the bouncy chair pulled from in front or pushed from behind? Or was it, as the mother hypothesises, pulled back and released like a spring? Was MG’s weight part of the load on the bouncy chair as TG hit the ground, and if so where about on the bouncy chair was his weight operating? Did MG land on top of TG? These different scenarios (and they are not necessarily an exhaustive list) are likely to provide a range of very different values for both the tipping forces and the impact forces. Second, and in the nature of things, we do not know whether MG was capable of exerting the required tipping forces. Dr Van Ee proposes practical experiments using toddlers of the same age, but such experiments, even if feasible, are unlikely to provide compelling answers, given the number of different scenarios that would have to be tested and, not least, the near impossibility of comparing the actual physical strength and other characteristics of the experimental 13-month old subjects with the characteristics at that age of the now 20-month old MG. Third, and even assuming all these difficulties have been overcome, there remains the fundamental problem that, in the nature of things, we have only a very imperfect understanding of how a baby’s body works and, in particular, of how much force is required to produce a particular form of injury in a baby. Let us assume that Dr Van Ee is able to produce values for the impact forces on different scenarios of, let us say, x, y and z. How do we know whether x, y, or z is sufficient to cause any of TG’s injuries? Mr Vine suggested that the answer is to be found in the ‘risk probability curve’ referred to by Dr Van Ee, but he did not explain why, nor does Dr Van Ee in his interim report. Indeed, we were not even shown the curve or the paper in which it was published.

In these circumstances it seems to me that the prospect of Dr Van Ee’s work producing any useful evidence in this particular case is sufficiently slight as to fall well short of the “reasonably required” test. The fundamental problem, as Mr Tyler correctly identifies it, is that there is no witnessed incident to reconstruct. So, as he puts it, what is Dr Van Ee to recreate? The reality is that we are, factually, too far into the realm of speculation in this case for biomechanical engineering to be capable of providing the court with any significant assistance.

That leaves the more general question of whether, in other cases, biomechanical evidence might in future satisfy the “necessary” test. I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts. As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance. But I emphasise the qualifying words I have just used. We can only operate on the best and most up-to-date science available to us today. But we must always bear in mind that tomorrow may bring about a transformation of scientific knowledge so that, to use Dame Elizabeth Butler-Sloss P’s words, new scientific research will throw light into corners that are at present dark. Whether and if so when this will come about in relation to this particular scientific discipline we cannot say. That is why, as I have already emphasised, case management judges must always keep an open mind when deciding whether or not to permit expert evidence particularly where, as here, the science is both complex and developing.

There is one final matter I must mention.

It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish ‘threshold’ they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probability that those events did indeed happen. And if it cannot do so, then its case will fail and must be dismissed.

The process of determining whether the local authority has or has not proved its case on threshold takes place under the vigilant eye of the judge. But in our adversarial system the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them. It is over 600 years since Hankford J is reported as having said in 1409 (YB 11 Hen 4, Mich fo 37) that:

“Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known].”

In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.

In an arresting phrase, Megarry J (to whom I am indebted for the reference to Hankford J), once referred to the aid afforded to the judge by “the purifying ordeal of skilled argument on the specific facts of a contested case”: Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16. The context there was very different, but the same goes for cases in the family courts. Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. As Wall LJ said in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered. Every £100 of public money spent paying for the separate representation of litigants in family cases who do not require to be separately represented is £100 unavailable to pay for representation which is required. If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration. That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.

Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy’s order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father’s appeal and the children’s guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense. Included amongst the directions I gave on 14 December 2012 was this:

“The court will be much assisted by submissions from the children’s guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice.”

Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party’s stance. Was this not such a case?

This is not a matter which we raise for the first time. Almost twenty years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords made some very pointed comments which seem to have had little effect. More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

“We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.”

He went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.

In fairness to those who appeared before us I should make clear that we did not explore this issue at the hearing. Accordingly, it would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position.

Since preparing this judgment I have had the pleasure and privilege of reading in draft the judgment of Sir Mark Hedley, who shortly after the hearing of this appeal retired after a long, varied and distinguished career as a judge. It is, if he will allow me to say so, a judgment which exemplifies his wisdom and humanity and reflects his deep understanding of both the forensic process and the human condition. I agree with every word of it.

I have read the judgments of Sir James Munby P and Sir Mark Hedley and I agree with both of them.

I have had the advantage of reading in draft the judgment of the President. I am in full agreement with all that he says and would particularly want to associate myself with his view both on matters of general policy in case management and also on the necessarily limited role of the appellate court in such matters. However, I propose to add a few words, musings even, of my own based on long experience as a case management and trial judge. In so doing, I am not to be taken as offering reservation or qualification to anything said by the President.

Judicial case management is a comparatively recent concept in family law. Those who practised before 1991 in, for example, wardship cases will remember that the essential framework of the case and the expert evidence was provided by the advocates and, although judicial assent was sought, the principal restraint remained the willingness of the client or funding authority to pay. Active judicial management derives, I believe, from the Commercial Court, from where it spread to the Official Referee’s Court; certainly I learnt all my basic judicial case management skills as the assistant Official Referee in Liverpool. As, however, Part IV of the Children Act 1989 developed, there came an increasing awareness of the need to manage cases as they became more complex, more lengthy and resulted in longer trials. A look at the annual reports of the then influential Children Act Advisory Committee in its last four years up to its final report in 1997 will demonstrate both an increasing awareness of the need effectively to manage cases and also an acceptance of judicial responsibility for it.

In a highly conflicted case where permanent removal and placement are serious possibilities (and that is increasingly the case with young children), it is only the judge upon whom responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for, especially on behalf of parents, no stone should be left unturned however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided. The latter is fair to the parties and radically reduces reading time at second and subsequent hearings.

It is inevitable in busy courts that standard directions should appear; indeed in many cases they have already done so. Yet it is important to remember that true case management is tailored to the actual case being managed. It is this judge discharging his or her responsibility to this child (or children) and this family. That is a further reason why judicial continuity is so desirable. The judge is concerned to discern the disputed issues and to decide the evidence required to resolve them. Of course the parties play a critical part and the wise judge will pay close attention to any agreed set of directions placed before the court just as that judge will be astute to allow the parties to develop reasons as to why this or that particular piece of evidence or expert witness should be adduced in the instant case.

Although judges must comply with the Rules, case management remains an art. The judge should have the ‘feel’ of the case; apparently similar cases may require different evidence, for example as to whether a psychological assessment of one of these particular parents is required or whether expert psychiatric evidence over placement of one of these particular children is necessary. Again there will be cases where further evidence is allowed almost as an act of mercy; I have allowed a second opinion on the papers where the evidence has hitherto spoken with one voice against inadequate (rather than culpable) parents who are facing permanent loss of all their children. Such cases will be rare but every experienced judge has met them and they should be free to exercise such discretion.

This distinctive feature of this judge’s appraisal of the needs of this case is of course the key justification for appellate courts taking a very limited role. From Piglowska onwards there has been a recognition, variously (and more elegantly) expressed, that the judge has a feel for the case and for what is required for that case to be fairly and proportionately tried and that appellate interference should be restricted to those circumstances described by the President in paragraph [35] above. Case management judges should know that, absent palpable error of this sort, they are expected to use intellect, imagination and judgment to procure the expeditious and fair hearing of the cases entrusted to them. If a decision surprises others, it must be assessed in the specific context of that case.

With those musings, I return to the instant case. The judge decided that biomechanical evidence, for reasons which he gave, was not likely to assist him in this case. On the basis of the authorities that would have been a fair starting point. The judge, however, considered this, not as a matter of principle or standard direction, but within the context of this particular case. In so doing he acted as a judge should and his decision, in my judgment, cannot be faulted. Biomechanical engineering is not yet a fully developed science but of course may become so and, as the President has noted, the court’s present disinclination to make use of it may some day have to be revisited. Of course, the very fact that there is embryonic or conflicting science surrounding head injuries to small children lends force to the cautionary words of Henderson that non accidental injury cannot simply be inferred from the absence of an understood causation. There must always be room for human future learning and current ignorance. In all the circumstances, I agree that, whilst there should be permission to appeal, the appeal itself should be dismissed.

APPENDIX

Suggested Plan for Further Analysis

1

When TG was placed on his side in the bouncy seat, which side was down (left or right)? Did it vary? Was he placed sideways in the seat on the morning of the 22^nd?

2

Get consensus from medical experts which, if any of the injuries are specific to direct contact, the range in location where that contact occurred on the body and the nature of the contact (geometry and level of force: 1 lb, 10 lb 100 lb 1000 lb; note: significant is not a level of force). What specific study(s) are they relying on for these conclusions?

3

Get consensus from medical experts on the age of the rib fractures.

4

Get consensus from medical experts if there are indications that this child had a preexisting medical condition or some other predisposition for skeletal or intracranial trauma.

5

If the rib fractures predate the morning of the 22^nd, do they show new signs of trauma associated with the June 22 event?

6

Obtain diagram of skull fracture pattern and location

a Does the stellate fracture indicate a specific impact point or could it be a remote branching fracture?

b If the impact point is at the stellate center is the transverse fracture location in the opposite parietal an out bending location consistent with being a remote fracture?

7

Obtain bouncy seat and place CRABI-6 infant crash dummy in it with head accelerometers. Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee at al. 2009 and published injury reference values associated with subdural hemorrhage.

8

If overturn can produce head acceleration consistent with occurrence of skull fracture answer the following question

a Is it possible for a 13-14 month old child to overturn the bouncy seat with a child the size of TG in it?

b If there is reasonable question about if possible performed experiment to address this issue.

i Weight up an appropriate test device to approximate the weight and weight distribution of TG.

ii Two options

1

Have 3-4 13-14 month old children attempt to overturn the bouncy seat with weighted test device strapped in seat (caution: does this teach children it is ok to do this?)

2

Measure forces required to lift and overturn the bouncy seat in lab. After quantifying the forces and motions required construct a small device/structure that does not resemble a seat with a child but takes similar forces and motion to overturn. Ask 13-14 month old children to overturn the device.

9

Review literature for chest forces related to CPR and other medical treatments where rib fracture has been documented to occur. Compare forces to sit down forces of a 13-14 month old sitting down rambunctiously. Experiment to measure sit down forces could be performed by placing a load plate under a test device approximating the important geometry of a child/bouncy seat.