The Expert Witness Institute, 27 September 2018
1. On 31 October 2005 the Court of Appeal heard an appeal from the county court in public law Children Act proceedings concerning alleged non-accidental head injury to the first born child of a young couple. The case attracted subsequent notoriety because the media christened the proceedings as the first miscarriage of justice case reported by the family courts. It was not, of course, but both the Court of Appeal decision in Re W (a child) (non-accidental injury: expert evidence) reported at  EWCA Civ 1247 and the subsequent re-hearing which is reported at  EWHC 136 (Fam) were to re-set the judicial balance relating to expert evidence in that jurisdiction.
2. I did not hear the original application but had the task of dealing with the subsequent re-hearing when that was transferred to the High Court. I also felt it necessary to apologise to the couple who had been separated from their child for most of the first two years of its life and who I decided had been wholly innocent of the allegations made against them: to a mother who had to make a choice between supporting her innocent partner and losing her child. Not only that but the child’s mother had terminated the pregnancy of her subsequent child given that had the allegations been accepted, that child would have been removed at birth. It was right and proper that the error that had been perpetrated was acknowledged in public and that their innocence was vindicated in public. Hence the opportunity for media comment.
3. The cases identified a series of important adjectival ie procedural and good practice issues that were subsequently written into our procedural jurisprudence, including practice directions, guidance and protocols, that will be familiar to many of you. They were not specific to children proceedings and could arguably be deployed in any adversarial fact finding and opinion based determination.