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The Al-Alas Wray case centred around care proceedings brought by the local authority, the London Borough of Islington, in respect of the parents’ new born baby Jayda Wray, following the death of her older sibling Jayden aged four months in July 2009. The local authority alleged that his death was caused by baby shaking which they said was evidenced by the classic TRIAD of injuries (subdural haematoma, encephalopathy and retinal haemorrhages). They pointed to the existence of multiple fractures of varying ages added as additional evidence of violence to substantiate death through non accidental injury. The parents strongly denied any wrongdoing and pointed to the fact that Jayden had been found to have severe undiagnosed rickets and to be vitamin D deficient at the post-mortem.
Prior to Jayda’s birth the parents were charged with murder and/or causing and allowing his death. They were acquitted at the Old Bailey in December 2011. The judge withdrew the case and directed the jury to acquit them. The care proceedings continued. Islington accepted that the sole issue to be determined, in terms of risk, was whether on the civil standard of proof (balance of probability) the injuries had been inflicted by the parents. The care case took place in February 2012 and concluded in a judgment last week ( EWHC 865 (Fam)). The judge exonerated the parents.
The judge held that all the fractures were a product of rickets. Jayden’s death was attributable to a combination of benign causes, which included severe Vitamin D deficiency which sensitized him to infection and seizures. The seizures in turn lead to raised inter cranial pressure, retinal haemorrhages, subdural haematoma which culminated in hypoxic ischemia brain injury. She specifically found that a contributory factor to his death was the suboptimal care that he received at University College Hospital, the first hospital which his parents had taken to for treatment.
This article is written to underline the importance of the expert evidence in cases such as this. In both the criminal case and the family case five overseas experts were used. In the criminal case, a total of 15 experts gave evidence together with numerous clinicians and health care professionals who had seen Jayden during his life. One of the clinicians, Dr Peters, consultant paediatrician at Great Ormond Street Hospital was treated by the criminal court as an expert.
In the family case 14 of the experts gave evidence. The experts called by the Crown were instructed by the local authority and the experts called by the defence were instructed jointly by both parents. As the family case followed very soon after the criminal case no formal letters of instruction were sent to the experts as is usually the case in family cases. Instead it was agreed by all parties that the experts would be sent copies of the medical notes, the transcripts of evidence within the criminal case, including all the expert evidence (LiveNote) and the experts’ reports in electronic form. As the case went on, the judge ordered that there be a LiveNote of the expert evidence within the family case and this was disseminated to the various experts giving evidence. Despite this being an unusual methodology, for a family case, it worked well and cut down considerably on the amount of time that is usually spent in instructing an expert and then posing further questions upon receiving a response and then collating that evidence, those responses and disseminating them and exploring further issues. In my view it worked well because broadly speaking the experts were aware of what the evidence in the criminal case and we were aware of what the experts had said in the criminal case and could then focus on exploring their evidence further in the family case in the light of the totality of the evidence given, albeit on a different standard of proof, balance of probabilities.
The expert evidence in this case was vital to the outcome. Without that evidence it almost certain that the outcome would have been different. This case started before October 2011 and therefore the reduced hourly limits for experts did not apply; albeit the Legal Services Commission imposed a ceiling rate which all of the experts accepted. There was therefore no issue over the costs in this case and indeed the commission dealt expeditiously with the authorization of those costs which was essential to the case progressing given the short time between the criminal case and the care case.
The new hourly rates after October 2011 are significantly lower than the hourly rate that was agreed in this case. The LSC does have discretion to go above the hourly rates imposed but this will only be done in exceptional circumstances. As the changes are recent it has not yet been tested and confirmed whether cases such as this would be such exceptional circumstances. It is however clear that the extremely low hourly rates for experts’ fees that have been introduced will seriously impact upon parents being able to instruct experts of the calibre of those in this case in the majority of the cases before the court.
The Norgrove Report has recommended that proceedings should be completed within six months, cases should be streamlined and there be less reliance on the use of experts. The thinking being that, currently, cases are taking too long to conclude, the issues in cases are being overcomplicated by the lawyers as the focus is more on the parents. The result is unacceptable delay for the very children whom these cases are being brought to help. It is not within the scope of this brief article to provide a detailed analysis of the report or its conclusions. Mr Justice Ryder has been charged with the task of investigating how the changes can be implemented and has published updating bulletins as to his progress.
Had the six month deadline been adhered to in this case I have no doubt that it would have been impossible to put forward the case that we have had the opportunity to put forward. It was a lengthy process for the criminal team to instruct the experts that were needed to challenge the criminal case, their availability both to report and give evidence then needed to be factored in. The prosecution experts needed to be able to respond. On a practical level the medical records and health care records needed to be located, collated and disseminated. This was a lengthy task as Jayden was seen on 33 occasions before his admission to University College Hospital. Imaging, both in life and death needed to be located and samples sent to the experts, experts’ meetings needed to be arranged between the various disciplines of experts and the extensive research literature needed to be assembled and considered. These tasks could not be undertaken in the nine months leading up to the initial fixture for the criminal trial. In cases of this complexity it seems impossible that the six month deadline can reasonably be adhered to, particularly given court listings currently. It is hoped that in practice a balance can be struck between the need to obtain a swift conclusion, thereby giving certainty to the child, and the need for there to be appropriate information available to the court, and time for the court to hear the matter, to ensure justice is served to the parents and the child. A child has a right to be brought up by his or her parents if at all possible and it is important to keep that principle in mind when undertaking this balancing exercise.