Sir Ernest Ryder, the Senior President of Tribunals, delivered a speech at The Expert Witness Institute, in which he invited the public to offer their views about what they think a functioning justice system should look like. The President also outlined pioneering projects focusing on big data, judicial training and evidence based practice.
Sir Ryder, who was tasked with modernising the family courts in 2011, opened his speech with some insights on a case called Re W, which involved allegations of non accidental injury, and which came to the media’s attention because the court wrongfully removed the child in question from his parents. The decision led to the mother having to choose between supporting her partner, who was innocent, and losing her child. She also terminated the pregnancy of her subsequent child after the allegations had been accepted by the court, knowing that her unborn child would have been removed at birth.
In that case, Sir Ryder, sitting in the Royal Courts of Justice observed:
“In the reading of complex medical materials these essential facts may become obscured. They should not be forgotten. This is not a case where there is ‘no smoke without fire’, this is a case where a family court and the expert who advised it got it wrong. The parents have no case to answer but their son spent 12 months of his very young life away from their care while the family courts acted to correct the error. K’s parents deserve an explanation as will K when he is older. It is not surprising in these circumstances that there are lessons to be learned.”
Sir Ryder made a formal apology to the parents during the hearing. Their son had been separated from them for the first two years of his life.
The case raised some very important questions about evidence, particularly medical evidence: how evidence is gathered, the absence or presence of consensus on the findings and best practice in relation to how the courts process and interpret that evidence.
Ryder’s speech pointed out these issues and also flagged up the inherent conflicts within medical and judicial processes: how we understand medical thresholds within the context of legal ones, and also how the courts combine medical data and fact together. Ryder mentioned that the multi faceted nature of hearings like the ones in Re W, framed within an adversarial system, can lead to some very serious, life changing errors.
On the adversarial nature of courts, Ryder said this:
“The traditional adversarial mechanisms we use are the well tested methods of the lawyer and judge. We derive principles from the interstitial conclusions of cases that identify or give rise to good practice. We create rules and practice directions to govern procedure so that there is consistency around the application of those principles and we permit those conclusions to be challenged, so that by the process of giving evidence in guideline cases and the process of appeal on points of principle, better practices can be identified, errors of practice can be condemned and replaced and new or alternative investigative techniques and processes of decision making can be approved, including our own. This is second nature to all of you but it is neither innovative nor swift and does not provide the litigant who has a point but as yet nothing to justify their funding with a means of getting your assistance.”
Ryder goes on to talk about the need for judges to receive specialist training when working within fields which require expert witnesses, and he mentioned a number of projects which are designed to invite best practice and improve judicial decision making in this area.
This takes Ryder over to the digital sector. He explained:
“I want to make the debate about the outcomes of justice more sophisticated and informed so that our practices and processes keep pace with scientific developments, the settled law is informed by the best of what you know and do with the ultimate consequence that we can use the data we collect to analyse what works.”
Ryder announced that his advisory council, the Administrative Justice Council, had been developing an agenda of issues relating to good practice and that the council now had four seminal projects it was working on. These projects will produce advice on best practice.
Ryder also confirmed that the council was working with the Legal Education Foundation and the Nuffield Foundation to develop several major projects. These projects include the Nuffield Family Justice Observatory which will work with the council to gather family research from across the world, and the newly created What Works centre for civil justice issues which will look into what works when it comes to access to justice, fair process and remedies available. The council will also be working with an HMCTS data lab which Ryder says will provide access to justice data for researchers.
The Tribunal President also mentioned what he said was pioneering work being done in data ethics and research methodologies being carried out by the Alan Turing Institute and the new Ada Lovelace Institute, and in his speech he urged lawyers to get involved in this area to help shape its use and effectiveness within the justice system.
And although he does not offer the public a place to reach out to him, or the Administrative Justice Council, Ryder’s final thought is an invitation to the public, to share their views on what they think a justice system should be. If you would like to share your thoughts, you can contact the council on 020 7329 5100, or email them at admin@justice.org.uk. For those of you who use Twitter, follow the council @JUSTICEhq or find them over on Facebook.
Researching Reform 
It was unfortunate that Sir Roy Meadow and David Southall were able to distort medical testimonies in their evidence regarding Munchausen Syndrome By Proxy which were finally exposed in the Sally Clarke Trial. The comments of some leading Judges in those cases should not be forgotten. i.e.
In 2003 and 2004 there were landmark cases in the U.K. Criminal Appeal Courts [Sally Clark/ Angela Cannings/Trupti Patel] regarding the evidence presented by Professor Sir Roy Meadow and which have resulted in his theories regarding Sudden Infant Death Syndrome and MSBP/FII being totally discredited. Judicial comments at these court hearings were that the medical evidence was “manifestly wrong and grossly misleading” and such evidence “should not have been put before a jury”.
Lord Justice Judge – Angela Cannings Appeal Hearing against conviction 2004,
“in cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed”.
In relating the ruling of Justice Judge to civil cases in Care Proceedings, Justice Butler-Sloss has added further rulings that;
i ) The cause of an injury or an episode that cannot be explained scientifically remains equivocal;
ii) Recurrence is not in itself probative;
iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural causes;
iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice;
v) 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.”
In the U.S.A. the Supreme Court has ruled, (Daubert vs. Merrill Dow) that medical evidence presented to a court must have been peer reviewed, generally accepted by the relevant medical community, and appropriately tested scientific evidence should be presented”.
Most recently in June 2004 in an Appeal Hearing, the Supreme Court of Queensland, Australia have made the following findings in regard to MSBP/FII. [R v LM [2004] QCA 192.].
“As the term factitious disorder (Munchausen Syndrome By Proxy) is merely descriptive of a behaviour, not a psychiatrically identifiable illness or condition, it does not relate to an organised or recognised reliable body of knowledge or experience. “ and;
“the diagnosis of Drs. Pincus, Withers, and O’Loughlin that the appellant intentionally caused her children to receive unnecessary treatment through her own acts and the false reporting of symptoms of factitious disorder (Munchausen Syndrome) by proxy is not a diagnosis of a recognised medical condition, disorder, or syndrome. It is simply placing her within the medical term used for the category of people exhibiting such behaviour. In that sense, their opinions were not expert evidence because they related to matters able to be decided on the evidence by ordinary jurors. The essential issue as to whether the appellant reported or fabricated false symptoms or did acts to intentionally cause unnecessary medical procedures to injure her children was a matter for the jury’s determination. The evidence of Drs. Pincus, Withers, and O’Loughlin that the appellant was exhibiting the behaviour of factitious disorder (Munchausen Syndrome By Proxy) should have been excluded.”
The Queensland Judgement was adopted into English law in the High Courts of Justice in Case No. WR03C00142 [A County Council v A Mother and A Father and X,Y,Z children] on 18 January 2005 by Mr. Justice Ryder.
In his final conclusions regarding Factitious Disorder, Mr. Justice Ryder states that :-
“I have considered and respectfully adopt the dicta of the Supreme Court of Queensland in R v. LM [2004] QCA 192 at paragraph 62 and 66. I take full account of the criminal law and foreign jurisdictional contexts of that decision but I am persuaded by the following argument upon its face that it is valid to the English law of evidence as applied to children proceedings.
The terms ‘Munchausen Syndrome by Proxy’ and ‘Factitious (and Induced) Illness (by Proxy)’ are child protection labels that are merely descriptions of a range of behaviours, not a paediatric, psychiatric or psychological disease that is identifiable. The terms do not relate to an organised or universally recognised body of knowledge or experience that has identified a medical disease (i.e. an illness or condition) and there are no internationally accepted medical criteria for the use of either label.
In reality, the use of the label is intended to connote that in the individual case there are materials susceptible of analysis by paediatricians and of findings of fact by a court concerning fabrication, exaggeration, minimisation or omission in the reporting of symptoms and evidence of harm by act, omission or suggestion (induction). Where such facts exist the context and assessments can provide an insight into the degree of risk that a child may face and the court is likely to be assisted as to that aspect by psychiatric and/or psychological expert evidence.
All of the above ought to be self evident and has in any event been the established teaching of leading paediatricians, psychiatrists and psychologists for some while. That is not to minimise the nature and extent of professional debate about this issue which remains significant, nor to minimise the extreme nature of the risk that is identified in a small number of cases.
In these circumstances, evidence as to the existence of MSBP or FII in any individual case is as likely to be evidence of mere propensity which would be inadmissible at the fact finding stage (see Re CB and JB supra). For my part, I would consign the label MSBP to the history books and however useful FII may apparently be to the child protection practitioner I would caution against its use other than as a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist/psychologist). I cannot emphasise too strongly that my conclusion cannot be used as a reason to re-open the many cases where facts have been found against a carer and the label MSBP or FII has been attached to that carer’s behaviour. What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.”
In a subsequent Judgement in the Family Division on 8 March 2005, [East Sussex County Council v K and others. BLD 1403051115; [2005] EWHC 144 (FAM)], Mr. Justice Charles set out the role of expert medical witnesses when giving testimony in Courts and most importantly, the areas on which they should give such evidence . i.e.
Per curiam: In civil cases concerning children it might :
(a) assist all involved,
(b) better reflect the roles of the expert and the judge, and;
(c) demonstrate that the expert is not the decision maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information,
if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to:
(i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered,
(ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause,
(iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm,
(iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view, and to state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.
In a letter to the British Medical Journal in October 2004 concerning child abuse research, Patrick E. Lantz, a forensic pathologist at Wake Forest University Health Sciences in North Carolina, U.S.A, and forty other physicians and scientists stated that,
“Evidence based medicine is the conscientious, explicit, and judicious use of scientific evidence in making medical decisions and cautions against unsystematic, untested reasoning and institution-based clinical applications”.
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There appears to be no option mentioned for the parent/s who have NAI used against them or their partner/wife/ husband wrongly/falsely for what I would describe as a premature threshold including where facts went ignored (proving an injury/injuries were ‘not’ deliberate -was ignored after previously going through Crown/criminal Court) with blatant lies told placed before the Family Court….when ones are either restricted or gagged from speaking out at all public/restricted from mentioning names/places/errors Ect.
Again, I would say the same for false diagnosis, made at the premature threshold stage, all because the ones responsible were too eager to have a child/ren permanently removed from their family; where their parent/s requested (formally in writing) their child/children to be returned home safely to them. Professionals who are not medically qualified, should not just be agreeing to said diagnosis otherwise it makes them just as culpable. Such ones responsible for making false diagnosis, should still be held to account even if/after they have removed themselves from the register to stop their own practice.
It’s in Cases like these, I strongly believe a Judge/s should do the right thing and throw a Case/s out of Family Court.
Then where any professionals have been caught to have ‘Fraud’ on top of the already mentioned, by any Judge, they should be removed from the Case immediately because they’ve already proved they cannot be trusted and the Judge should certainly make the parent/s aware of their rights to have said Judge removed from the Case where they fail to do this by leaving them remaining on the Case.
Then, where this has not happened, we have to ask the question ‘Can the Judge be trusted not only on our own Case, but also on other families Cases.
One rotten apple turns the rest rotten. Rotten apples get promoted to further the disease!
Priority should be to remove the poison to avoid further miscarriage of justice from happening. A dented cake tin will never be able to make a perfect cake ever again!
FRAUD can be/ is covered up which is corrupt! It simply gets redacted or left out of any Judgements, which is why we can never fully trust what we read in Judgement/s. Then there are Judgements and decisions which simply are getting eradicated from the public eye where ones are restricted/gagged.
For feedback with views and opinions to be worthwhile and honest, with a true picture with data research and to help create positive change- every one affected needs to have the same equal rights to be able to voice their opinions and concerns and not just a selected minority when it affects/has affected us all as a family/families. This is because the damage is traumatic and everlasting.
What I have wrote, is not a bad reflection on Researching Forum- but a prompt for said Judge to include an option for us all to have a voice; if they have not allowed room for this to happen already. There are ones of us who have been/still are prejudiced against where we have spent many years uncovering the truth.
The children wrongly removed grow up to want to know the truth aswell. The children have been/are failed in circumstances like these.
xx
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The family courts like any justice system should presume innocence until proved guilty.Babies and young children should not be taken from parents because of presumed non accidental injury .
Only if a parent has been convicted of or been charged with causing significant harm to a child should a child be moved into care and in the latter case if a court finds the parent not guilty or charges are dropped altogether then the child should be returned to its parent(s) at once.
Risk of future harm should never be reason to remove a child and forced adoption (adoption made despite opposition from parent(s) in court )should be abolished.
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Very few parents are charged with harming/ injuring a child in a Criminal Court, as there is frequently insufficient evidence to satisfy the very high criminal standard of proof i.e. Beyond Reasonable doubt. However, there may well be sufficient evidence to satisfy the much lower civil standard of proof i.e. On a Balance of Probabilities/ More likely than not.
So it is not necessary to prove the former in order to prove the latter. In the Civil Court, guilt of an offence is not the issue, it is the safety and protection and the welfare of the child and whether the child requires protection. If the safety of the child requires the criminal standard of proof in every case, then their would be many thousands of children living in high risk situations and suffering continuing abuse.
However, the standards of evidential proof in the Family Courts have become extremely lax, and findings now rely too heavily on opinions rather than facts, and suspicions and assumptions, rather than concrete and tangible, measurable evidence. This is the area of the law that needs to be urgently reformed.
The professionals involved have been given far too much power by the Courts when their knowledge base has been extremely lacking and `Theories’ have been advanced but which have no basis in scientifically-conducted research and very often do not carry the support of the relevant professional community, one of the essential elements in the provision of expert testimony. This has therefore led to a very considerable misuse and abuse of professional powers.
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Simple remedy ! Do NOT take children from parents unless there is evidence against them to a criminal standard .Repeated patterns of bruising,etc Whatever happened to “INNOCENT UNTIL PROVED GUILTY”??
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Ive sent a email to Sir Ernest Ryder, outlining what i think and what i know.
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