Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

16 MAY 2007

CARE PROCEEDINGS: Re M (Care Proceedings: Best Evidence)

(Court of Appeal; Thorpe, Gage and Toulson LJJ; 16 May 2007)

The parents initially had no explanation for the child's bone fractures, one of which was rare. At the fact-finding hearing the mother suggested that the child might be suffering from a rare bone condition and obtained leave for an expert in the condition to examine the child. The expert concluded that the proposed diagnosis was extremely unlikely, as there was no evidence of a family history, and no clinical signs of the condition. He recommended, however, that genetic testing be carried out; the test would take 6 to 8 weeks and cost £5,000. The judge considered that there was no forensic justification for the test and dismissed the application. The mother appealed arguing that in the interests of obtaining best evidence, the test should be allowed.

It was very important to draw a clear boundary between a medical decision as to what was clinically required for the treatment of a child, and a forensic decision as to what was necessary to ensure the proper determination of an issue. A forensic decision was a case management decision for the judge. The expert had not been expressing a medical opinion on clinical grounds, but a forensic decision, and had been trespassing on judicial territory. The judge had made the right decision. There had to come a time at which the evidence was sufficiently full and thorough to enable the court to make a decision on the balance of probabilities. The benefit to be gained by subjecting the child to the test was not large enough to justify the considerable cost in money and time.

Red Book Plus

Red Book Plus

Family Court Essential Materials

This ready reference guide for all family court practitioners and judges provides a portable...

Family Law Online

Family Law Online

Get a FREE trial today! The fastest way to access the latest law reports, case law, commentary,...

Available in Family Law Online
Subscribe to our newsletters