Fact finding hearing, unknown causes of injuries, Ehlers Danlos Syndrome, the wider canvas

Fact finding hearing, unknown causes of injuries, Ehlers Danlos Syndrome, the wider canvas

42BR Barristers involved in case which is rapidly becoming the lead authority in Ehlers Danlos Syndrome and “unknown” causes

Devon County Council v EB & Ors [2013] EWHC 968 (Fam)

Tina Cook QC leading Katie Phillips acted for the father in this difficult fact finding hearing which has rapidly become the lead authority on “unknown causes” in “possible” genetic link cases.

Twins born to parents who suffered from a range of medical conditions including (for the mother) a genetic condition (Ehlers Danlos Syndrome ‘EDS’) and (for the father) joint hypermobility, were found to have fractures and intra cranial bleeding.  Save for the injuries, there were no concerns about their care of the children.  A third child born to the parents during the course of the proceedings suffered a skull fracture whilst in the care of his parents (supervised by the maternal grandparents).  On an interim application, the Court found that the injuries to the third child had been sustained in a low level fall.

Mr Justice Baker heard extensive evidence from a number of treating physicians and no less than 8 experts including Professor Pope, an expert in connective tissue genetics, who addressed in particular the question of EDS and the role it had to play in the findings and presentation of the twins and their injuries.  It formed a key part of the considerations in this case and may raise issues of wider application given the symptoms these children presented which are often seen in alleged non-accidental injury cases.

EDS is a group of inherited connective tissue disorders caused by a defect in collagen.  There are a number of different types of the syndrome and symptoms vary depending on the type.  In type 3, for example, there is a prominence of joint hypermobility.  In type 4, on the other hand, also known as vascular EDS, there is a tendency to fragility in blood vessels.

Of important application to these types of cases, Professor Pope “pointed out that the medical literature presented a slightly more complicated picture…in some cases of type 3 EDS there was evidence of lower bone density, although other research papers reached a different conclusion.  In Professor Pope’s view, EDS type 3 was a very variable disorder and it is possible that there are some subsets which feature lower bone density.  Type 3 is, said Professor Pope, the most common but least distinctive of the EDS types and was not yet fully understood.” [97].  There remained “dark corners” in our understanding of connective tissue disorders [101].

Mr Justice Baker in a detailed judgment was unable to make findings that the injuries suffered by these children were not linked to the various complex conditions of the parents, the Local Authority had not proved its case, threshold was not met and the children returned home to their parents’ sole care.  He highlighted in his judgment the need to consider each piece of evidence (including that of an expert medical nature) in the context of all of the evidence and that medical/scientific knowledge was of an ever evolving nature.  In drawing his conclusions, Mr Justice Baker emphasized again the need for the court to survey the “wider canvas” than that of the medical information in isolation and stressed that in cases of suspected physical abuse the court must “follow the evidence and pursue the enquiry in whatever detail and for however long is necessary to arrive at the truth.”  He considered that were it not for the involvement of the range of experts in this case from different disciplines and the case had been decided purely on the evidence of the treating doctors, the outcome may have been very different.  He added “Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”  Helpfully, Mr Justice Baker, highlights upon the tensions between this approach and the 26 week timetable and notes that “there will still be a minority of cases, exceptional cases, where the investigation takes longer…Judges must be vigilant to identify those rare cases which require longer time.  It is, of course, important that these cases are identified as soon as possible at the outset of proceedings and that any delay is kept to a minimum.”

The concluding comments of this Judgment are heartening (and in current times crucial) to the specialist family bar and solicitors, he says “the role played by all of the representatives for all of the parties in this case has been of the utmost importance.  All judges are very concerned at the prospect of an increase in self-represented litigants and the consequences for the family justice system.  Not enough recognition is given to the contribution to the family justice system made by family lawyers.”

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