Case No. WH21C00033

7.I have already described the need in most cases for a lead forensic pathologist to obtain reports from other specialist experts before a final post-mortem report can be complied. For example, in the present case, where there was evidence of bleeding to the brain and in the eyes, a healing rib fracture and an injury in the mouth, specialist reports are required from:a)a consultant neuropathologist;b)a consultant paediatric pathologist (in particular with respect to the eyes); andc)a consultant osteoarticular pathologist.Each of the instructed specialists has a contract to work in the NHS so that work in contributing to a post-mortem report must be undertaken privately outside their commitments to the NHS. Such specialists are, apparently, in short supply. In terms of osteoarticular pathology there is only one expert in the country who is prepared to take on this work. He is Professor Mangham who is a NHS consultant and a professor at Manchester University in histopathology. Prof Mangham undertakes this privately paid work from a unit that he has established for the purpose. He is thought to be instructed in around 100 cases each year. This court has been told that it currently takes 16 weeks to create the necessary microscope slides of bone tissue at the professor’s unit and this period is plainly part of the overall time taken to complete the assessment work.8.In the present case it is Prof Mangham’s timescale which is dictating the date for completion of the overall post-mortem report. The order made by MacDonald J on 10th February 2022 transferring the issue to the President of the Family Division recorded the following:‘AND UPON Professor Mangham currently being the only consultant osteoarticular pathologist approved by the Home Office to undertake pathology reports in that field and Professor Mangham having indicated that his report will not be available for some 9 to 12 months.’After the case had been transferred, the timescale was revised on 15 February to 6 to 8 months from the date of receipt of the post-mortem material, which was 16 November 2021, giving a likely completion window between mid-May and mid-July. The revised timetable is no longer controversial and it was on that basis that case management directions were agreed and the hearing before me was vacated.9.The fact that the delay generated by the post-mortem process is no longer an issue in the present case does not mean that the problem is solved or will not reoccur in another case. Whilst the court is grateful to Prof Mangham for being prepared to undertake this work, and nothing that is said in this judgment is intended to be personally critical of him in any way, even the revised timetable with a period of 6 to 8 months between receipt of the materials and the submission of a report is, itself, entirely outside acceptable timescales in the Family Court.10.The court is grateful to the Secretary of State for the Home Department [‘the Home Secretary’] who, rather than intervening, has submitted an ‘Explanatory Note’ describing the background circumstances. It is helpful to set out certain key passages from that Note here:‘… the medical professionals available to conduct the relevant type of work, sub-specialty pathologists, such as Prof Mangham, are not ‘approved’, employed by or contracted to the Home Office.’‘1. The Home Office, through the Pathology Delivery Board, oversees the provision of forensic pathology services in England and Wales. This is done by maintaining a register of forensic pathologists who have the relevant qualifications, knowledge and experience to conduct forensic post-mortem examinations and act as expert witnesses in suspicious death and homicide cases. Home Office registered forensic pathologists are not employed by or contracted to the Home Office, but act in a private capacity and are paid a case fee by the police or a coroner. The Home Office maintains the register on which they are listed and oversees the rules and standards by which they agree to work. At the time of writing, there are 39 Home Office registered forensic pathologists serving police and coroners in England and Wales, plus 6 trainees being funded through their training by the Home Office. This provides sufficient capability to serve demand in England and Wales.2. To provide an informed opinion in some suspicious death cases, however, it is necessary for a Home Office registered forensic pathologist to consult the services of other pathology experts. These experts tend to be organ specific sub-speciality pathologists such as neuro, eye, bone and heart pathologists. They are also employed by the NHS or universities. Professor Mangham is a sub-speciality bone pathologist. The Home Office regulates the professional activities of the aforementioned forensic pathologists in order to protect the criminal justice system. The only relationship the Home Office has with these sub-specialty organ specific pathologists is to identify and try to encourage them to take on police cases. They are not registered by the Home Office, although a list of medical professionals willing to do such work is maintained by the National Crime Agency with whom the Home Office Forensic Pathology Unit work closely. The regulation of these sub-specialty pathologists is provided, as it would be to any medical doctor, by the General Medical Council. The Home Office has no role in their professional conduct.3. …4. The dearth of sub-speciality pathologists willing to engage in the criminal justice system impacts child and baby death cases. These cases are also particularly complex due to the need to exclude natural disease and conditions associated with age. This has meant that the few sub-speciality pathologists who are willing to take on such cases are overburdened with case work. It is not unusual for a report from a sub-speciality pathologist to take up to six months before it is ready to send to the forensic pathologist (and nine months for bone examination). If this position persists, it is likely that the ability of the police and coroners to thoroughly investigate complex deaths will be severely hampered, and court dates will continue to be missed. 5. It is worth noting again that the system of medical death investigation in England and Wales is a private service, not provided by the state, but reliant on coroners and the police paying for services of self-employed professionals. The Hutton Report was an independent government commissioned report into the current state of forensic pathology capability and made recommendations for a national autopsy/death investigation service, but this recommendation has not been taken forward to date. The report was sponsored by the Home Office as it was intended to examine the current delivery of Home Office forensic pathology services, but it soon became apparent that it was not possible to focus purely on Home Office pathologists without considering the wider picture of pathology services to coroners. The MOJ will therefore be the government department with policy responsibility for implementation following the report.’11.The Home Office Note continues by explaining the steps that have been taken to encourage other specialist pathology experts to take up this work. There are grounds for hope that at least two in the field of bone analysis may do so. In addition an expert in the USA may be available to take on some work in the interim to relieve the backlog of cases allocated to Prof Mangham. Finally the Note confirms that the situation that now exists is not materially different from that which obtained when, prior to 2012, the national Forensic Science Service was in operation as that Service did not employ or authorise sub-specialist pathologist who were, as now, privately contracted to work on particular cases by the police or the coroner.12.The Note concludes:‘The Home Office does observe, however, that what appears to have changed over the last ten years or so, is that there are fewer medical doctors choosing to become pathologists as a specialty. This problem has been compounded by the fact that forensic pathologists often used to qualify as generalist histopathologists, where they learned to examine all organs of the body, but this is no longer the case due to the fact that, in 2012, forensic pathology became a speciality in its own right, and no longer a sub-speciality of histopathology. Another major shift in this time is the expectation of the Courts. It used to be the case that suitably qualified forensic pathologists did their own organ specific examinations, but we understand that the expectation of Courts now is that a highly specialised expert is requested.’13.It is helpful for the position to be laid out with clarity in the Home Office Note. Whilst some ameliorating action may be in hand to increase the number of experts in the specific field of osteoarticular pathology, this may only trim back the extent of delay, rather than eradicate it. The system is similarly vulnerable, albeit to a lesser degree, by shortages of experts in other fields. It is no business of the court to engage in policy matters, but it is to be noted that the option of establishing a national service is not currently being taken forward by government. In September 2020 the Chair of the Pathology Delivery Board wrote to Lady Justice Thirlwall, as Senior Presiding Judge, with the aim of alerting the criminal courts to these extended timescales. Since then there has been no improvement and the unacceptable situation that currently exists seems likely to remain. It is a matter for the police and the coronial system, who are the primary commissioners of this work, what they may choose to do to improve matters. It is a situation which is outside the control of the Family Court, yet this court, and the wider child protection system, are currently forced to put up with the consequences of a regime which, from the perspective of meeting the needs of vulnerable children within the timeframe set by Parliament, is wholly unfit for purpose.14.The impact on Family proceedings is summarised well in the Skeleton Argument on behalf of the father, who is represented by Samantha Bowcock QC and Michael Jones:‘Whilst each case must be dealt with on its own individual facts, it is our experience that the delays in numerous sets of care proceedings involving a deceased infant are extensive and directly attributable to awaiting the completed post-mortem investigations. Delay is then compounded by the assertion by the police that certain evidential materials should not be disclosed pending receipt of the post-mortem report and re-interview of the parents. That is precisely the case in these proceedings. We submit that the delay can and should be addressed, if possible.’15.A similar point is firmly made by counsel for the mother, Karl Rowley QC and Ginny Whiteley:‘Nothing in this document is intended to be or should be construed as a criticism of Professor Mangham. It is, however, an intolerable situation for children who are the subject of care proceedings, and their families, to have resolution of their cases (and thus, often, welfare decisions as to where they live and whom they see) delayed by months and sometimes years because of one expert. That delay often entails a child who has suffered no actual harm in their parents’ care being separated from them or their wider families at a crucial stage in their emotional and psychological development. The effect of the delay, therefore, is that the State is apt to occasion greater harm to a subject child than they have hitherto experienced. That cannot be right: there is a statutory injunction to avoid delay and there is a unique statutory requirement to dispose of a Part IV application within 26 weeks precisely because delay in decision-making is known to be prejudicial to the welfare of a child.’