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Family Law

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23 JAN 2013

FACT-FINDING HEARING: Re TG (Biomechanical Evidence) [2013] ECWA Civ 5

(Court of Appeal, Sir J Munby P, Aikens LJ, Hedley J, 22 January 2013)

When the child was 11 days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures, subdural and intraretinal haemorrhages. The latter were not found to as serious as some cases and did not exhibit all the features of the triad. Care proceedings were initiated in relation to child and his two older siblings and the father sought permission to instruct a biomechanical engineer to provide evidence.

The parents believed the child's injuries may have been sustained when his bouncy chair tipped over with him in it, although no one witnessed the cause of the injuries. The father submitted that biomechanical evidence was required to investigate the level of force generated by the baby bouncer. The expert selected estimated the cost of his report as between $18,500 and $22,000.

The father's application was rejected. The judge found that the cost and potential delay the report would generate was disproportionate to the likely benefit given that five medical experts had already been instructed. One of the experts opined that the injuries were caused by two separate incidents in which case the father's explanation, at best, could only account for one of them. He found that the further evidence was not reasonably required in the circumstances of the case.

When the permission to appeal application came before the Court of Appeal the father was permitted to submit additional evidence by way of a letter from the consultant neuro-radiologist. He supported the father's application to instruct a biomechanical engineer on the basis that the medical experts were not equipped with the necessary knowledge or training to advise on the alleged mechanism of the injuries. He claimed that if the expert in question were not instructed then the medical experts would be asked to express an opinion outside their expertise.

The father was granted permission to appeal but the appeal was dismissed. The judge had correctly applied the test in r 25.1 of the Family Proceedings Rules 2010 by asking himself whether the evidence was reasonably required to resolve the proceedings having regard to all the circumstances of the case. The Court of Appeal had emphasised the importance of supporting first instance judges who made robust but fair case management decisions.

The application did not raise a point of law of general importance, namely, the admissibility of biomechanical evidence. The local authority was not challenging the admissibility of the evidence but whether by virtue of r 25.1 of the FPR 2010 the evidence was 'reasonably required'.

The refusal to permit the biomechanical evidence involved no unfairness or breach of Art 6 of the European Convention. The relevant statutory scheme including the FPR was Convention-compliant and a case management judge who properly applied the scheme was acting in a Convention-compliant way. There was nothing in the Strasbourg jurisprudence to entitle a litigant to be permitted to call whatever evidence he wished.

It was not necessary to call upon the expertise of a biomechanical engineer to demonstrate what every parent would know, that an 11-day old baby strapped into a bouncy chair was simply incapable of generating the force required to tip the chair over. If the chair had been tipped over, there must have been an external force, perhaps the 13-month-old sibling as suggested by the father.

In view of the level of uncertainty as to what actually happened to the child the prospect of the biomechanical report producing any useful evidence was sufficiently slight as to fall short of the 'reasonably required' test.

It was not appropriate to rule out the possibility that biomechanical evidence would reach the 'necessary' test in future cases. Although in its present state the relevant science in such cases would, at best, be of infrequent use in the family courts. However, it was important that case management judges kept an open mind when deciding whether or not to permit expert evidence particularly where the science was both complex and developing.

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