Curbs on expert cross-examination could lead to wrongful removals, family silks warn

Senior family lawyers have warned that a little-known pilot project centring on the role and use of expert evidence will see children wrongly taken from their families. The Department for Education-funded pilot is up and running at NHS trusts in Manchester, Sheffield and Birmingham with little information available to either the public or family law specialists.

Under the pilot a multi-disciplinary ‘clinical hub’ at each location will examine and report on cases of suspected inflicted head injuries, which would prompt local authorities to make an urgent application to have children removed from their families.

Manchester University NHS Foundation Trust has advertised the role of ‘quality and governance manager’ for its own Suspected Inflicted Head Injury Service (SIHIS) pilot. The advert notes: ‘As part of the service, a range of highly expert consultants from a range of specialties undertake assessments of children, discuss findings with one another, and write a formal report for the Family Court.’ The fixed contract ends on 31 March 2025, indicating the planned length of the pilot. 

The hub will include access to paediatricians, neuro-radiologists, haematologists and other disciplines. The fear is that clinical hub experts will not be subject to cross examination in court, yet their evidence will displace that of transparently instructed agreed joint experts, currently appointed under section 25 of the Family Procedure Rules.

‘Lawyers working on the front line of NAI [non-accidental injury] cases in court have been excluded from discussions and information on this pilot,’ Professor Jo Delahunty KC told the Gazette. She warned: ‘I fully anticipate that such use of a “clinical hub”, pre-proceedings, will be used to raise the bar on proving the “necessity” for a part 25 instruction when a case comes to court as an NAI allegation based on this review.’

Delahunty said the multi-disciplinary report will form the opening local authority case ‘and is likely to be taken as obviating the need for all or some part 25 experts becoming involved, even though that is the only mechanism by which there can be transparent, joint, expert instruction with parental input and sight of case-acquired evidence’.

There are numerous examples of cases where cross examination of apparently unanimous expert evidence has led to the failure of local authority applications, she and other family law barristers note. Delahunty cites a recent case where five experts had reached a conclusion of NAI, but following cross examination the court disagreed.

Vice chair of the Family Law Bar Association Leslie Samuels KC has written to its members. He has asked them to contact him if they are dealing with a case that has been referred to a pilot clinical hub.

Alongside Manchester, Sheffield Children’s NHS Foundation Trust and Birmingham Women and Children’s NHS Foundation Trust are known to be in the pilot.

This article is now closed for comment.