A family court judge has criticised a consultant paediatrician in an open judgment after becoming deeply concerned about her behaviour as an expert witness in a child care case.

The family court judge - after discussing the circumstances with the president of the family division and the family division liaison judge for that region - decided, unusually, to publish his concerns.

The expert witness was instructed to prepare reports for two brothers, X aged 10 years and Y aged 17 years, suffering from hereditary hypomyelination syndrome causing severe dysplastic diplegia and requiring full time, lifelong care. However the paediatrician, who is held in high esteem and has regularly been instructed as a medical expert witness in cases proceeding in the Family Court, did not deliver the reports.

Six months after the paediatrician was instructed to prepare a report on the younger brother and four months after she was asked to prepare a report on the older brother, the reports had not been written. Neither had she had she seen X or Y and it very much appeared that the consultant had spent little, if any, time reading the medical records that have been made available to her.

The parties involved came to the conclusion that in terms of both time and cost it would be appropriate for an alternative expert to be instructed.

The judgment stated:

‘........The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.

However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations’ makes clear, it is also an obligation that is placed on medical expert witnesses.

There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.’

His Honour said a draft of the judgment was provided to the expert witness before the hearing and she was invited to attend and make representations before the judgment was handed down.

He said:

“She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties' solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the family court.”

His Honour went on to say that he was deeply concerned about the way the expert witness had behaved in this case and added:

“It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain”.