The Problem:
3.In short, the problem to which this judgment relates is the extreme delay that is now regularly encountered in the preparation of a post-mortem report from a pathologist following the suspicious death of a child. Whilst the post-mortem examination, which is conducted by a lead forensic pathologist, will normally be undertaken promptly and within days of the death, material collected during the post-mortem is then likely to be sent off for specialist analysis by other experts and it is this latter process which can generate extensive delay. The preparation of the overall post-mortem report can only move to a conclusion at the pace of the slowest contributor and it cannot be completed by the lead pathologist until the reports of each of the specialists has been received. In the present case the Family Court was told in February 2022 that it would be a further 9 to 12 months before the post-mortem report would be completed.4.Delay of this magnitude plainly has a profound impact on both the pending criminal process and upon any related child protection proceedings in the Family Court. In the present case the surviving sibling [‘G’], who was born in February 2020, was removed from his parents’ care following his baby brother’s death in October 2021. After a short time living with a relative, he has been in local authority foster care since December 2021. If the post-mortem report were not available until November 2022 or February 2023, so that the Family Court could not even begin to conduct a fact-finding investigation into the cause of the baby’s death until the first half of 2023, it is probable that the long-term plans for G’s care (in particular whether it is safe for him to return to the care of a parent or other family member, as opposed to placement for adoption) would not be settled until the summer of 2023 or even later. G was around 18 months old at the time of the death; he will be 3½ years old by the summer of 2023.5.The timeline that I have just sketched out is, in any event, over simplified. A further consequence of delay in receipt of the post-mortem report is that the police investigation is likewise stalled. It is only after the report becomes available that the police can conduct formal interviews based upon it with the parents and other family members. In order to maintain confidentiality with respect to some of the evidence that the police have obtained from other sources, that other evidence will only be made available to the parents during those interviews and to the Family Court proceedings thereafter. This additional important step in the police process will therefore cause the Family proceedings to be delayed yet further.6.The potential delay encountered in the present case is not unusual. Indeed, this court has been informed that it is now the norm for there to be delay of the order of one year in the preparation of a post-mortem report following the suspicious death of a child. This is certainly not the only such case that I have seen in recent times. For surviving siblings to have to wait in limbo in foster care or elsewhere for a period of two or more years before the plans for their future care can be determined is wholly unacceptable. The Family Court is required to ‘have regard to the general principle that any delay in determining [any question with regard to the upbringing of a child] is likely to prejudice the welfare of the child’ [Children Act 1989, s 1(2)] and must work to a timetable to determine an application for a care order within 26 weeks from its issue [CA 1989, s 32(1)(a)]. The timescales that are now regularly encountered in care proceedings following the death of a child are wholly outside those required by Parliament and they are plainly contrary to the welfare of any surviving sibling who is the subject of such proceedings.