Court technology – Electronic Benchmarks

November 1, 2005

In Merton London Borough Council v K; re K (Care: Representation: Public Funding) [2005] EWHC 167 (Fam) the local authority sought an interim care order in relation to a baby found with broken bones, brain injuries and retinal haemorrhages. Neither of the parents could offer any explanation as to how the child’s injuries were sustained and the court had to decide whether they were non-accidental and whether the child had suffered significant harm whilst in the care of his parents. The child suffered from metabolic bone disease of prematurity and the medical evidence was that, due to this, broken bones could have arisen from normal handling, or indeed, could have been non-accidental. Medical evidence in relation to brain injuries was that they were caused by shaking, or shaking and impact, involving such force that it would have been obvious to the perpetrator that there was a risk of injury to the child. The child had been in the care of both parents at the time the injuries were sustained. The parents denied causing the injuries.

Mrs Justice Baron continued the interim care order, concluding that the child had suffered non-accidental injuries when shaken by one of the parents on two separate occasions, but that it was not necessary to determine which parent had caused them. However, in concluding her judgment, Mrs Justice Baron made some wide-reaching comments. She concluded that counsel had made no real inroads when cross-examining the high-calibre medical experts. The local authority had produced a schedule of findings which it sought which was in narrative form. The judge considered that such documents should be formulated as a Scott Schedule and be available in electronic format in all cases. She noted that, if undertaken effectively, such schedules were a good way of presenting a mass of facts. Once completed by the court, they would be a useful adjunct for experts who might have a continuing role in the case which, after all, had only been dealt with on this occasion on an interim basis. Also obiter, Mrs Justice Baron said that it was helpful for all medical reports to be available in an electronic format and to be made available to the judge at an early opportunity. Written submissions should be available in this format also. She continued: “I consider that the time is fast approaching when transmission of all-important documents should be accomplished by e-mail and the court should use electronic documents as a tool to speed up justice.”

Many family lawyers, at least those practising ancillary relief, are already accustomed to preparing schedules of issues in a type of Scott Schedule form. After the Merton decision family lawyers might think on a little about how they can better assist the court, providing documentation more simply and logically and, of course, electronically. Not every tribunal may necessarily want documentation to be produced electronically, but discussion with the other legal representatives and the judge at an early stage might be extremely helpful.

Tony Roe is the Partner heading the Family Law Group dealing with matrimonial, co-habitation and children issues at Boyes Turner: