Expert witnesses in the dock

A lot can change in a day. Nobody knows that better than the
thousands of families who have had their children removed by the
family courts following a diagnosis of Munchausen syndrome by proxy
(MSBP). For a brief 24 hours last month they believed their chance
to try and have them returned had arrived.

But their jubilation was short-lived. Just a day after it announced
that its review of 258 cases involving the deaths of children aged
under two would be extended to include parents who had their
children taken into care in civil cases, the government
backtracked. These cases would not be reviewed after all.

For the estimated 5,000 families whose children have been taken
into care following a diagnosis of MSBP, this latest development is
a bitter blow.

But many have vowed to pursue with renewed vigour the fight to have
their children returned in the light of three high-profile cot
death cases. For eminent paediatrician professor Sir Roy Meadow,
the man whose questionable expert opinion in the cases of Sally
Clark, Angela Cannings and Trupti Patel prompted the review, also
figured significantly in their own cases.

As the person to first diagnose MSBP, Meadow has been involved
directly as an expert witness in the family courts or indirectly in
countless cases that have resulted in the removal of children from
their families.

His controversial theory first appeared in medical journal The
Lancet in 1977 and has earned him global fame in paediatric
circles. MSBP is a condition whereby a parent, usually the mother,
fabricates or induces illness in their child to attract attention
from professionals. But Meadow’s credibility as an expert witness
was undermined after his famous claim that the odds of more than
two cot deaths in a family were 73 million to one was revealed to
be based on rudimentary and flawed maths.

Many do not believe MSBP exists, partly because they say it lacks
scientific validity. One of its most vociferous critics, Lord Howe,
Conservative shadow minister for health and social care in the
House of Lords, has attacked the idea as “one of the most
pernicious and ill-founded theories to have gained currency in
child care and social services over the past 10 to 15 years”.
Amazingly, when asked to produce the research papers on which the
theory was based, Meadow said he had destroyed them. He is now
being investigated by the General Medical Council and could face
disciplinary action.

In a House of Lords debate recently, the Countess of Mar called for
a review into the estimated 5,000 cases where families had had
their children taken into care after a diagnosis of MSBP. She urged
attorney general Lord Goldsmith to look at the way the family
courts function “behind closed doors”.

Liz Goldthorpe, chairperson of the Association of Lawyers for
Children, says: “The confidentiality of proceedings is designed to
protect the private lives of those involved and, above all, to
protect the child. Conducting them in public, either wholly or
partly, is likely to result in publicity that inflicts long-term
damage on children and their family relationships, and is also
likely to distort the careful and sensitive process the court has
to undertake.”

But although there may be legitimate reasons for keeping family
courts private, some believe there are other ways of making
proceedings more transparent. Allan Levy QC, an expert in child and
family law, says: “It is wrong they are not publishing the
judgements from family court cases. There is a strong case for much
more openness. There is also a basic contradiction because if the
case goes to the Court of Appeal then it is heard in open
court.”

He adds that a child’s identity could still be adequately
protected, as it is in criminal proceedings.

Additionally, the national shortage of expert witnesses is likely
to affect some cases. Levy says most professionals do not want to
“put their head above the parapet” and become involved in court
proceedings for fear they may later find themselves in the firing
line.

A lone judge presides within a family court and many argue that it
would be better to have three judges to share the responsibility of
weighing up evidence, especially when it is of a medical or
specialist nature.

Goldthorpe says there may have been some cases where insufficient
attention was paid to the need for critical examination of the
methods and approach of experts. “It isn’t a question of just
looking at someone’s paper qualifications.”

Often, each side in a court case will have its own expert witness
and then it is left to the judge to make his ruling. But without
the knowledge to question experts, it is possible that some judges
defer to expert witness opinion. Furthermore, there is sometimes
only one expert witness, which may give his or her testimony undue
influence (see panel).

Given the shortage of experts, it is not difficult to see how
someone such as Meadow, one of few willing to take the stand, has
steadily built himself a reputation as an authority in his field.
But what qualifies someone as an expert? A few papers published in
the right journals? Validation from one’s peers? Telling people you
are one?

All three, according to the Royal College of Paediatrics and Child
Health, which says it is about “putting yourself forward”. But
increasing concerns expressed within the field and by the public
has led the college to join forces with the Council for the
Registration of Forensic Practitioners (CRFP) to set up an
accreditation system.

Chief executive Alan Kershaw says: “At the moment there are a lot
of commercial directories for expert witnesses. You submit a
reference, pay a fee and say you have a couple of people who can
vouch for you. This is not a regulated system.

“Often experts get known as such through word-of-mouth. Lawyers
have no way of knowing their expert has been checked.”

Applicants to the college’s expert database will have their
casework examined by a team of assessors. They will also be
expected to keep up-to-date with training and re-register every
four years. Importantly, their work will be subject to peer review.
But there are obvious weaknesses in such a system.

To begin with, as the college points out, it would be impossible
for truly independent professionals to do the peer review, and some
may wonder whether the process could be biased by professional
friendships. Moreover, the system would not allow for individual
theories to be scrutinised because, says Kershaw, “we cannot
rewrite science”.

Science, though, is exactly what critics of MSBP say it lacks.
Laudable it may be, but what the CRFP proposes is just the first of
many steps in the right direction of regulating not just the
experts but their methods too. Undoubtedly, changes are needed
within courts to help judges interpret expert evidence. Only then
can all parties, especially parents, feel their case is getting a
fair hearing.

But without increased rigour throughout the whole system, those
using experts – social services and parents among them – are
unlikely to be confident that the expert they hire is qualified for
the job.

More pressing is the need for a review of those 5,000 cases
because, in the light of criticisms of Meadow’s methods, some are
suggesting thousands more children may have been wrongly separated
from their families.

A couple’s battle to reunite their family 

Michelle and Will Carter* had their four children then aged 13,
10, six and four taken into care in February 2000 after Sir Roy
Meadow testified that Michelle was suffering from Munchausen
syndrome by proxy and had tried to poison their youngest child,
Emily.* The two younger children were adopted and the older two
fostered. The couple have continued to fight to have their children
returned. 

Will Carter says: “In January 1998 our youngest daughter, who
was 16 months, was taken seriously ill and suffered a stroke. We
were told the next day it was a complication of chicken pox. 

“In August we were contacted by social services. Apparently a
urine sample taken from our daughter on the day she was admitted to
hospital contained a drug prescribed to our other daughter to stop
bed-wetting. Social services said they wanted to come and talk to
us with the police.  

“There was a child protection case conference and they wanted to
put our daughter on the ‘at risk’ register. I said we would agree
because it was still unexplained how she had got hold of the drug.
We were thinking it would all be sorted out. In the meantime, the
social worker had contacted a psychiatrist at Great Ormond Street
Hospital, who said my wife was suffering from MSBP. But he wrote
his report without ever talking to us. His only contact was with
social services.  

“Social services tried to get care orders for all children, but
the judge said he would only permit a supervision order for our
youngest. The judge said the psychiatrist’s report should be struck
from the record because he had never spoken to us.  

“An expert was needed and we were advised to go for joint
instruction [one expert looks at the whole case]. Social services
came up with Roy Meadow. We were told he was the number one
authority in these cases. He visited us for about three hours and
spoke to me, Michelle and two of our children alone, which we now
know was a mistake.  

“The main thrust of Meadow’s argument was that Emily had taken
between six and 12 tablets. He never gave any proof as to how he
knew that. We think she probably got hold of one tablet that had
dropped on the floor. I have done some research into the drug,
which is not prescribed to under-fives, and if Emily had taken that
many tablets she would have died.  

“We have tried to appeal or get a judicial review by asking the
court to release the court papers to a toxico-pathologist so that
we could get an official statement to launch an appeal. But the
judge refused, saying there was no basis in law for a parent just
to clear their name within the family courts. Without this
information we cannot proceed.  

“It has taken three high-profile cases to get Meadow in the
public arena but he has been involved in so many cases in the
family courts too. Why is there only one judge in the family
courts? There is far too much secrecy. I know they say it is to
protect the children but those involved in criminal courts have
their identities protected. In the family court a judgement is made
on the balance of probabilities rather than on beyond reasonable
doubt, which makes it very difficult for the parents.”  

* Names have been changed