An Address by Rt Hon Sir Andrew McFarlane
President of the Family Division to the
British Society of Paediatric Radiologists

I suspect that each member of this audience is well used to lecturing. From time to time we will have each found ourselves preparing to speak to an audience which is well outside our normal professional round. The natural thought, as the date draws near and the need to prepare some words becomes pressing, is to say 'why on earth did I agree to do this!'.

Today might have been one of those days for me, but, as I will explain, the opposite is very firmly the case.

So, why did I agree to speak to the British Society of Paediatric Radiologists Scientific Meeting.

An easy answer is that I have known one of the organisers, Dr Tom Davies, since he was a very young person. I have always liked him and an invitation from Tom was therefore a hard one to refuse on that ground alone. But the true reason why I am keen to be here in this room addressing you is a much deeper one.

You may be familiar with 'The Road Less Travelled', a well-known poem by Robert Frost in which a traveller, faced with a choice of two equally attractive paths, chooses to take the one 'less travelled'. The poem's final verse is:

I shall be telling this with a sigh

Somewhere ages and ages hence:

Two roads diverged in a wood, and I—

I took the one less travelled by,

And that has made all the difference.

When I started to practice as a young barrister in Birmingham at the end of the 1970's, the idea of being an expert in the law relating to child protection would have been quickly dismissed. There were few child protection cases and, all but a few, were heard by lay magistrates, rather than in the higher courts. For a barrister, at any stage of seniority, to seek to pursue a career in children's law at that time was most certainly to choose a road less followed.

Whilst it is dangerous to put too much weight on one experience, one court case, in my mind I can pinpoint the singular experience that 'did it' for me and caused me to diverge from the paths that were more travelled in those days and head off in the direction of child protection work.

It was around 1982 or so. The case involved a toddler who had been found to have, I think, as many as 20 or more metaphyseal fractures. The fractures were at the end of almost every one of his long bones and they were of a range of different ages. The parents, who originated from the high mountains of the Hindu Kush, but were living in Birmingham, could not give an account to explain the injuries.

The case for the social services, for whom I acted, turned on the radiological evidence. At that time Birmingham Children's Hospital was most fortunate to have the first, and I think still then the only, full time paediatric radiologist in the country, Dr Roy Astley. Dr Astley was our expert. Before that case I had never heard of metaphyseal fractures and I recall Roy Astley painstakingly educating me in the various presentations, aging and causation of this distinctive category of fracture so that, in turn, I could ensure that the evidence was presented to the bench clearly and accurately.

The case was complicated by, and at turns made more interesting by, the instruction of an expert for the defence. He was Dr Colin Paterson, a renowned specialist in bone disorders and co-founder of the Brittle Bone Society. Dr Paterson's expert opinion was that, in this case, the metaphyseal fractures could have resulted from normal parental handling because this child, in his view, suffered from copper deficiency thereby rendering his bones more brittle than those of a normal infant. I recall much evidence about the child's feeding regime, whether the sclerae of his eyes were green and whether he had, or had not, had Cow and Gate Milk.

I found the whole thing absolutely fascinating. It was also important in that, if the findings were to go against the parents, the court had the power to remove their child forever from their care for adoption by strangers. This, in terms of its consequences, was of a wholly different order to the low level criminal and civil cases that I would otherwise have been doing.

In all this I was greatly impressed by Roy Astley, and I was very interested in the science behind his evidence and the response that he and other experts gave to Dr Paterson's testimony.

In the end, having been schooled by Roy as to the likely mechanism, when I questioned the mother, through an interpreter, she, a lady of 'traditional build' as Alexander McCall Smith might say, explained that she had been concerned that her son was not growing adequately and that she regularly massaged his limbs by forcefully pulling them in order to stimulate growth.

The bench accepted this explanation for the fractures and, whilst her actions had caused significant harm, it was possible for the social services and medics to give her advice and monitor the child's progress at home. He was not adopted.

'From little acorns' ....

For me that case, and particularly that contact with the medical science behind it, stimulated an interest in child abuse and child protection which has developed and continued down the ensuing 40 years.

But for paediatric radiology in the UK, I suspect that the presence of Dr Roy Astley in Birmingham, followed at the very time that I am speaking of, by the arrival of his protégé Dr Stephen Chapman, was also something of a 'little acorn' event.

Thus, in a way, but for me it is a clear way, I feel that I have a debt to paediatric radiology and to Roy Astley and Stephen Chapman with whom I developed, over the course of many cases in Birmingham and elsewhere down the years, a most stimulating professional relationship.

My reason for burdening you all with this personal memory is not just to acknowledge publicly my interest in and support for your profession, it is to tee-up a much wider point about the protection of children from child abuse and the importance of experts within the court process.

Back in the days of which I was speaking, and before the Children Act 1989, professional knowledge about, and indeed understanding of the prevalence of child abuse in society, was very much in its infancy. I will offer one or two examples.

It was only in the 1970's – yes, the 1970's – that the understanding that parents might physically abuse their children became widely accepted. Before then, when children were presented at hospital with multiple physical injuries, and the parents denied being the cause, the medical profession were baffled. Of course, it was thought, parents would not intentionally harm their child, so there must be some other cause, but what was it? These cases were therefore labelled 'unexplained infant trauma syndrome'. It was only when two esteemed American paediatricians, Ruth and Henry Kempe published their seminal work on 'Child Abuse', that physical abuse by parents and the concept of there being 'Battered Babies' came to be accepted. You will think of this as ancient history now, but it isn't. Kempe's book was published in 1978, a date which shows just how far we have come in just 50 years.

I now have come to understand that a society may pass through a spectrum in its acceptance of categories of abuse, and do so in stages. Each stage leads on to greater understanding and to the next stage. The process no doubt never finishes and where we are today, in 2024, cannot be the end of the journey. But the passage from one stage to the next is not a steady or well mapped one. With each step, new ground is being trodden, aided by greater understanding and, often, with developing technical and scientific support.

From physical abuse in the 1970s, in this country we moved on to begin to understand issues around sexual abuse in the 1980s. This was by no means a straightforward or easy journey. By the middle of the decade there was intense and well reasoned professional debate over a range of matters. For example, what were the physical signs of past sexual abuse that might be seen on a child? In particular, whether any such sign might be thought to be, of itself, diagnostic? Were the words of a child in response to questioning more or less reliable depending upon the way in which the questions were asked and by whom? Separately, if you placed a child in a room with some dolls, some of which were anatomically correct [if you know what I mean], did the child's interest in the genitalia of a doll indicate, one way or the other, whether they had been sexually abused?

These and many more similar questions swirled around and were the subject of intense consideration in the courts, which relied upon experts in paediatrics, other fields of medicine, child psychiatry, psychology and social work for advice.

Matters came to a head in Middlesbrough in 1986/87 when 2 paediatricians came to diagnose child sexual abuse in no fewer them 125 cases over the course of just a few months. The report of the ensuing public inquiry, chaired by Dame Elizabeth Butler-Sloss, as she then was, provided a watershed moment and purported to give an authoritative view on many of the subject's professional debate at that time.

Pausing there, I suspect that those in the audience, like me, had understood that what had happened in Cleveland arose from misdiagnosis by the two paediatricians. In that regard a recent book by journalist Beatrix Campbell, 'Secrets and Silence' may be of interest. All these years later, with the ability to inspect previously confidential documents in the National Archive, the book explains that most of the children were probably the victims of sexual abuse, and therefore the diagnosis by medical professionals was likely to be correct. The book reveals a lack of transparency which has had lasting impacts. As a result, there has been a continuing false belief that the Cleveland children did not experience sexual abuse and that the crisis was the result of over-zealous and incompetent practice.

After sexual abuse, professional understanding moved on to understand something of factitious illness, emotional abuse, domestic abuse leading, only recently, to understanding the corrosive impact of coercive and controlling behaviour, and very many other mechanisms by which harm may be inflicted upon a child.

The degree to which professional knowledge has developed, and continues to develop, is physically demonstrated by the size of the book published by the Royal College of Paediatrics and Child Health on the 'Physical Signs of Child Sexual Abuse'. The second edition, current at the time of the Cleveland inquiry, was in A5 format and ran to 97 pages. The current edition is A4 and, at 278 pages is the size of a telephone book – if you can remember what one of those was.

You may, with some justification, think that I have travelled a good way from paediatric radiology, but I have done so to demonstrate just how crucial it is that our, that is to say society's, understanding of abuse in all its forms continues to develop and how crucial expert opinion, from whatever relevant specialty, is to that continuing development.

In each of these broad categories of abuse, at each turn in the development of greater understanding, and in each case before the courts, we in the judiciary have relied upon expert opinion to interpret, often in minute detail, the presenting signs and symptoms that have led a child to become the subject of care proceedings.

Lawyers are no more than lay people who have an expert understanding of the law and, no doubt, its practice in one or other of a range of specialist fields. Judges are no more than lawyers who have decided to rise above the fray to the altogether calmer atmosphere that surrounds the judgement seat. Lawyers, judges, and social workers, have no ability to diagnose or interpret matters of medical science, we must rely upon medical experts to do so. Even if after decades of practice in the family court, a judge or lawyer has developed a good understanding of a discrete area, for example head injury, that can never obviate the need for the court to be able to turn to relevant expert medical opinion in every single case where the need arises. That that is so, even if it is the fifth such case of that type the judge has heard in recent times, is because it will be the first and only such case affecting the particular family who are before the court on that day. The stakes are often very high in these cases, with the child going home if abuse is not proved, or moving on to adoption by strangers if it is. As a matter of basic justice, but also, even more importantly, as a matter of simply getting to the right answer for the sake of the child and his or her future, it is essential that the court can turn to respected and authoritative expert opinion where that is needed.

When I became President of the Family Division over six years ago there was concern over the difficulty in finding medical specialists in particular fields who were prepared to act as experts in family court proceedings. I established a group, under the general umbrella of the Family Justice Council, chaired, as it still is, by Mr Justice David Williams, to look at all matters concerning experts in the Family Court. The Expert's Group has done much to engage with medical specialists and to understand the range of issues that might make acting as an expert in proceedings less than attractive. Four principal areas of concern were identified:

• Poor remuneration;
• Negative experience of court processes;
• Lack of training and support in the role of being an expert; and
• The potential for adverse criticism in the court's judgment.

In the past five years much has been done to try to meet each of these concerns and to render appearing as an expert in the Family Court a more attractive prospect. Every single Family judge has received training on how to treat an expert appropriately and fairly and, in particular, the difference between disagreement with a conclusion and ad hominem criticism of the one who gives that opinion.

One beneficial consequence of Covid, and the court's move, overnight, to entirely remote court hearings, is that, although the hearing itself will normally involve the key protagonists attending court, it is now vanishingly rare for the expert to do so. The expert will normally give evidence online, thereby reducing very considerably the time and hassle that the process may involve and, if anything, enhancing the clarity of the evidence with, for example, a paediatric radiologist simply being able to 'share their screen' in order to demonstrate some facet or other of a key image.

Now is not the place to make a 'hard sell' for each of you to accept instruction as an expert in Family proceedings, but you may rest assured that we are continuing to do what we can to make the court process and the environment around it much more welcoming than has hitherto been the case.

Under the Act of Parliament and the court rules, the court may only permit the instruction of an expert in the Family Court where to do so is 'necessary' for the just determination of the case. Where it is necessary it is indeed necessary, not just for the court's benefit but for the benefit of the individual child, so that an accurate and clear conclusion may be reached where there is ambiguity over any potential significant harm and its cause. In short, when we say we need you, we really do need your expert opinion for the sake of the children who are brought before the court.

One recent, and potentially far reaching initiative that has come from the Expert's Group, is the SIHIS pilot. SIHIS stands for Suspected Inflicted Head Injury Service. It is a concept, if it takes off, that may well affect each of you in your work as paediatric radiologists. The scheme is being piloted in the regions served by Manchester University Hospitals, Sheffield Children's Hospital and Birmingham Children's Hospital. In a nutshell what SIHIS does is to establish a multi-disciplinary team (MDT) of well regarded consultant level specialists. The MDT will co-ordinate the investigation of every case of suspected inflicted head injury in a child as soon as it arises. The MDT will, by definition, include a paediatric radiologist or neuro-radiologist. Other specialties such as ophthalmology, genetics and haematology will also be involved.

Operating on a hub and spoke model, where a case may arise even in a small district hospital, it will be referred in to the SIHIS team at the regional hub as soon as the possibility of an inflicted head injury is raised. The team will investigate and produce a templated clinical report and this report will be the main clinical assessment for the treating team and, if the diagnosis is of inflicted injury, it will form the basis of any investigation by police and social services.

This model is seen as having real benefits for children in these anxious cases by providing, at a very early stage, a thorough and authoritative assessment which may lead either to a case being regarded as inflicted injury, or, as has apparently been the case thus far, in giving a reliable diagnosis of accidental causation or a manifestation attributable to some underlying condition.

At present, unless the child is referred to a tertiary centre at the time of their admission, it is unlikely that experts of the calibre of the SIHIS team would be involved in any coordinated manner for some many months, and only then as part of the process of expert instruction in the criminal or family court.

The pilot is being funded by the Department for Education, as part of their responsibility for children's social care. As of last month there had been 42 cases through the pilot, and it is thus still early days to give any comprehensive analysis of its operation and impact.

In closing I hope that what I have said has given you some impression of the road that has been travelled by us all in our developing understanding of the various manifestations of child abuse. I hope that I have also demonstrated that today, just as for me in that courtroom in Birmingham 40 years ago, Roy Astley was the key to unlocking the truth in a case of suspected abuse, so too are you, today, in your work with children and, if it goes there, with the courts.

We need paediatric radiologists to continue to engage with the Family Court as experts. Without that expertise we as judges, lawyers and social workers are blind and cannot proceed. We are doing what we can, and it is a good deal, to make the experience of acting as an expert a more clement experience than it may have been in the past. I hope that, if you do not do so already, you may put yourself forward to act as an expert in the Family Court in the future. The importance of the work is hard to understate. The stakes for the child and their family are high, and the need for clarity as to the causation of any potentially sinister symptoms is at a premium. In short, we need you!

Sir Andrew McFarlane
7 November 2024