There had been an unexplained injury to the child. A doctor who had been instructed to advise on whether or not a child suffered from osteogenesis imperfecta recommended an expensive test to confirm his diagnosis. The judge refused to order the test.
Held: The appeal failed. Thorpe LJ said: ‘In the present case, the doctors were not expressing a medical opinion on clinical grounds and insofar as they ventured an opinion on what was forensically required, they were trespassing onto judicial territory. The discretion of the judge in taking case management decisions is particularly generous. The judge here clearly decided that enough was enough, and enough had been achieved in Professor Patton’s considered view that in this particular child osteogenesis imperfecta was extremely unlikely. The judge clearly placed considerable emphasis on the fact that the expensive blood test which was urged upon her had been demonstrated to establish osteogenesis imperfecta in cases where there were no other clinical signs in only one percent of three hundred cases researched. The judge also attached weight to the fact that testing for osteogenesis imperfecta is only 90 percent accurate.
So this seems to me not only a permissible decision but a wise decision. There has to be a point at which the garnering of evidence is sufficiently full and thorough to enable the court to arrive at a conclusion, even on the elevated balance of probabilities standard of proof. It seems to me that Miss Wiley’s argument comes close to saying that no stone must be left unturned. I do not accept that. The value to be derived from submitting this child to what is an invasive investigation was too small to justify the considerable cost both in cash and in time. I have no hesitation at all in upholding the judge’s conclusion.’
Judges:
Thorpe, Gage, Toulson LJJ
Citations:
[2007] EWCA Civ 589
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – In re W (A Child); AW v SW CA 30-Oct-2008
The father sought leave to appeal against an order made on his application for contact. The mother appeared to have encouraged great hostility in the children toward the father. The court had decided that the children were aroaching ages when they . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 23 November 2022; Ref: scu.253685