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When exoneration comes too late to keep a family together
Karrissa Cox and Richard Carter were found not guilty of harming their baby only after the family court had ruled the child should be adopted. Emma Fenn, who acted for the mother in the criminal trial, and Stephen Lue look at the difficulties that this case highlights over running family and criminal proceedings concurrently.
As criminal and family practitioners, we are all too aware of the different challenges we face. Aside from very different rules of evidence and a burden and standard of proof, we have different end goals: keeping a family together versus preserving someone’s liberty. Despite this, one thing that unites us all is the search for a just outcome. We do not always find one.
The case in brief
On 24 April 2012, Karrissa Cox and Richard Carter took their six-week-old baby to hospital. The findings: torn internal tissues (frenulum), minor bruises and a radiologist concluded from the skeletal survey there were fractures (known as classic metaphyseal lesions – CMLs – which are fractures of the growing plates of bones). Explanations were given by the parents and the child was subsequently discovered to have a blood clotting disorder.
On 7 October 2015, Cox and Carter were found not guilty of harming their baby. By then, though, the family court had already made negative findings and their baby had been adopted.
What was different during the criminal and family proceedings? The evidence in both criminal and family proceedings was almost entirely interpretation by medical experts: radiologists, endocrinologists, paediatricians and biochemists. There were around 10 experts at the criminal trial, but fewer than half that number in the family proceedings. Of the two radiologists at the core of the criminal case, the prosecution radiologist concluded there were CMLs present as a result of abuse, whereas the defence radiologist concluded any abnormalities were signs of healing rickets. The prosecution instructed another expert. His conclusion: he couldn’t be certain there were inflicted fractures, but neither was he convinced about healing rickets. (It is worth noting that, regarding CMLs, some experts would suggest they are diagnostic of abuse and others would vociferously reject that, proffering explanations of naturally occurring variants or healing rickets.)
A lack of experts
Over the years, pay rates have been slashed for experts in criminal proceedings. Practitioners effectively rely on the goodwill of reputable experts, those passionate enough about seeing justice done to put their careers on the line for little financial reward. It is unsurprising that the pool of paediatric experts willing to get involved in these difficult cases is very small and continues to shrink. It is perhaps the greatest challenge facing criminal barristers in trying to best represent their clients.
In family proceedings, lawyers are faced with similar challenges – funding restrictions and the unavailability of experts – but there is also the issue of jointly instructed experts. In an area of law where medical experts have such contrasting opinions, is it really acceptable to have a system that promotes one jointly instructed expert? In the criminal trial, there were ultimately three radiological experts – and each came to a completely different conclusion.
Who goes first?
As criminal practitioners operating in an adversarial system, a not guilty verdict is supposed to represent a victory. One of the more unusual aspects about the Cox and Carter case was that such a verdict would never represent a victory for them. The issue of which proceedings should go first is not a new one. Arguably, the core of that issue is the depth of the investigation into the medical evidence. If criminal proceedings will result in more extensive testing and more experts considering the case, there is a natural inclination to think that this deeper investigation should go first. If, however, consideration is given in family proceedings to allowing more experts to be instructed, alongside greater overall flexibility surrounding their instruction, there can be little objection to family cases going first. It is worth noting that the family courts already allow for some cases to be extended over the 26-week deadline for their conclusion, including those involving an international element, or where a carer arrives on the scene late in the case and there is a realistic prospect of their assessment being positive. There is a strong argument that this extension should be granted in complex non-accidental injury cases, to allow the family courts the opportunity to make a decision with the best information available from the relevant experts. What cannot be allowed to happen, though, is pivotal, fresh evidence coming to light in subsequent criminal proceedings that could undermine the conclusions in the family court. All that will lead to is greater uncertainty for children and parents in care proceedings when findings are challenged further down the line.
The decision over which proceedings go first must also be balanced with the current government’s desire to deal with care proceedings and adoption with a much more accelerated timetable of 26 weeks for their conclusion. Adoption is a final order and in many ways more severe an outcome than a prison sentence. We must make sure that if the family proceedings are conducted first, more adequate funding is in place not only for a range of experts to be considered, but also for parents to be properly represented. It has not gone unnoticed that, as a result of the devastating cuts imposed by LASPO, Cox and Carter could not obtain legal aid in the adoption proceedings.

About the author(s)

Emma Fenn
Emma Fenn is a member of the Garden Court Chambers crime team.
Stephen Lue
Stephen Lue is a member of the Garden Court Chambers family team.