R v A Local Authority & Ors

At the conclusion of the argument on this appeal on 10 November 2011, we announced our decision, which was that the appeal would be dismissed. However, we reserved our reasons, which we now give. In my judgment, although the proceedings are concluded, this is a case to which reporting restriction should apply, and nothing must be published which would, in any way, identify the child or any of the adults in the proceedings.

We are concerned with a female child, who I will identify only by the initials ABC. ABC was born on 6 April 2009. and is thus aged 2 years and seven months. On 27 July 2010, in care proceedings under Part IV of the Children Act 1989 (the Act), she was made the subject of a supervision order for a period of one year under section 31 of the Act by District Judge (Magistrates Courts) (DJMC) Coleman sitting in the Inner London and City Family Proceedings Court (the ILCFPC). A residence order was made in favour of her mother, and her father, who is the appellant in this court, was awarded supervised contact with her.

The father appealed the DJMC’s order and on 6 January 2011 HH Judge Judith Hughes QC dismissed the appeals. Her judgment was delivered in writing on 10 January 2011. The father now appeal to this court, with permission granted at an oral hearing by Black LJ on 13 July 2011, following a paper refusal by Ward LJ on 19 May 2011.

We do not have a copy of the judgment given by Black LJ on 13 July 2011, but it appears from the skeleton argument put in by the local authority that the provisions of section 55(1) of the Access to Justice Act 1999 were satisfied in the Lady Justice’s mind by the fact that the appeal raises the questions: (1) of the approach to be adopted by the court when an application is made for a second expert’s report on what is said to be an issue of central importance in the case; (2) the timing and determination of an application for a second expert; and (3) how the issue is approached in civil, as opposed to family cases.

In any event, Black LJ both gave permission and granted the appellant an extension of time in which to appeal. She also specifically directed that the appeal should be heard by myself sitting in a court of three.

At first blush, the appeal struck us as curious, since we were told that the supervision order made by the DJMC, having expired, had not been renewed. Thus, although we were told that the paternal grandmother had made an application for contact, there were currently no family proceedings, public or private, before the court.

In these circumstances, Mr. Jonathan Kirk QC limited his argument to an application that we should set aside the factual findings made by the judge in relation to the father, and return the matter to the county court to reconsider the question of the father’s contact. Central to Mr. Kirk’s submissions was the proposition that the DJMC (and HH Judge Hughes) should have acceded to the father’s application for a second expert; and that the failure to permit the father to instruct such an expert (a) demonstrated an error of law; and (b) vitiated the exercise of the judicial discretion to award the father only supervised contact. Speaking for myself, I am content to approach the appeal on this basis.

These are within a limited compass and can be taken from the judgment of the judge. I have omitted her references to the papers in the case.

As is already apparent, the report on the father was prepared by SK, a practitioner with the Lucy Faithfull Foundation (the LFF). Mr. Kirk did not suggest that the LFF, which is well known, was in any way an unsuitable organisation to assess the risk posed by the father to ABC.

The letter of instruction, which was written by the solicitors for the father, makes it clear that it is a joint instruction and seeks reports on both parents. It is equally clear that, initially, what was sought was “a psychiatric risk assessment” in respect of both parents. The LFF made it immediately clear, however, that it was not in a position to conduct a psychiatric assessment. Despite this, the father at that stage did not seek such a report.

SK, whose curriculum vitae is attached to the report, had a BA in Business Law, a Diploma in Social Work, and had worked as a Probation Officer for six years between 1998 and 2004. He is described as undertaking “assessments and intervention of abusers, alleged abusers and non-offending partners”. In my judgment, he was an entirely appropriate expert for the task allotted to him.

Mr. Kirk took us to some passages in SK’s report, and in particular to paragraph 66, which he described as SK’s central conclusion: -

As is apparent, at a hearing in March 2010, the father applied to have the benefit of a second expert’s report. As I have indicated, the judge is in error when she says the application was adjourned. We were told that the DJMC refused it but made an order for the production of SK’s notes. The father disagreed with some of the matters SK said he had discussed at their meetings, and at the final hearing renewed his application for a second report from a different expert. The DJMC’s reaction was not to rule on the application, but to tell the father, who was represented, that he wished to hear his evidence and the evidence of SK, and that if he considered he needed a second expert report having heard the evidence of SK and the father he would go on to order such a report. The case then proceeded.

By this time it was, I think, common ground between the local authority, the guardian and the mother (a) that the threshold criteria under section 31 of the Act were satisfied; and (b) that ABC should live with her mother under a supervision order. The father, however, challenged a number of the threshold findings sought by the local authority, and as a result the DJMC heard evidence from SK, the father and ABC’s guardian.

We have a copy of the DJMC’s judgment, which runs to some 6 pages of typescript. It is clear that he had read all the papers. He deals with the history, and with the position of the guardian who was strongly opposed to any further assessments of the father. He makes clear finding of fact in relation to the evidence he had heard. On threshold, he concludes as follows:

He then reaches his conclusions in these terms:-

In paragraph 10 of her judgment, the judge identified and discussed a number of the authorities which had been cited to her. I start, however, with the first sentence of paragraph 9: -

Her conclusions are contained in paragraphs 14 and 15

Although there is a great deal of erudition on display in this case, the issue strikes me as being essentially straightforward. The decisions to proceed and not to order a second expert’s report were essentially, exercises of judicial discretion. Can it be said that the DJMC has in some way erred in the exercise of his discretion and that Judge Hughes, as a consequence, has failed to correct the error? I do not think it can.

In the first place, the DJMC plainly had a discretion to conduct the proceedings as he thought fit. In other words, he was perfectly entitled to proceed to hear oral evidence before ruling on the father’s application for a second expert: see, for example, Re B (Minors) (Contact) [1994] 2 FLR 1. Mr. Kirk did not argue to the contrary.

The way I propose to test these matters first of all is to look at parts of the guidance which I have given in relation to appeals under the Act, and to test that guidance against the facts of this case. As Miss Jane Rayson QC, for the guardian, points out in paragraph 3 of her supplemental skeleton argument, this court in Re S (a child) [2011] EWCA Civ 812 dealt with an appeal from a judge’s refusal to order a residential assessment under section 38(6) of the Act. Some of the points raised in that appeal are relevant here.

The Guidance is set out in full at [2010] Fam Law 189. I do not propose to set it all out here. I will, however, select those paragraphs which I believe to be relevant.

In the introduction, I identify additional reports or assessments of children and their parents in care proceedings as an area which I wish to address. I emphasise, in paragraphs 2 and 3, that these are judicial, as well as discretionary decisions. I remind judges of the well known statement by Asquith LJ in Bellenden (formerly Sattersthwaite v Sattersthwaite [1948] 1 All ER 343T 345 (and cited by Lord Fraser in the Family case of G v G [1985] 1 WLR 647 at 651-2, [1985] FLR 894 at 898) namely: -

I then go on to discuss how the discretion falls to be exercised. I stress that it is essential for the tribunal to take all relevant matters into account and to exclude all irrelevant matters. The pros and cons should then be weighed and a decision reached. The decision itself must be reasoned and clearly articulated. Provided the decision follows these rules it ought to be fireproof.

In paragraph 6, I point out that both Asquith LJ and Lord Fraser emphasise the words “plainly wrong”. In paragraph 7 I make it clear that decisions can, of course, be plainly wrong if judges or magistrates make an error or errors of law. No error of law, I think, can be alleged in the present case, except for Mr. Kirk’s submission that the judge has applied the wrong test in deciding the no second expert should be instructed. I will deal with that argument in due course.

In paragraphs 9 and 10 I remind judges that they must be conscious of the “no delay” principle, and that their decisions must be ECHR Article 6 and 8 compliant. In paragraph 11, I stress both the width of the discretion in case management appeals and the need for an appeal against any such decision to be mounted swiftly.

In paragraphs 13 to 16 I offer the following advice in case involving applications for additional assessments or expert reports –

If one applies these paragraphs to the instant case, it is at once apparent that both the DJMC and the judge exercised their discretion appropriately. Both asked themselves the crucial question: do I need this additional report to enable me to make a fair and proper decision? The DJMC's view was that a further report “would not take the case further”. The judge picks up on the same point – see paragraph 9 of her judgment. In my judgment the behaviour of the DJMC was transparent. He had regard to the time table for the case. It was his duty to bring it to a conclusion without delay, particularly given ABC’s age. It was, furthermore, for him to determine issues of fact and credibility between the fact and SK.

It follows, in my judgment, that an application of the Guidance to the facts of this case demonstrates clearly that the DJMC exercised his discretion appropriately and that the judge was right to uphold him. On this basis, the appeal, in my judgment, falls to be dismissed.

This analysis, however, leaves out of account Mr Kirk’s argument that the judge made an error of law in her analysis of the authorities in paragraph 10 of her judgment and “applied the wrong test” to the question of a second expert’s report. It also leaves out of account the more detailed arguments addressed to us by Mr. Kirk. He made the following points: -

that by following Sumner J in Re SK (Local Authority: Expert Evidence) [2007] EWHC 3289, [2008] 2 FLR 707 (Re SK) the judge had fallen into error by applying “a more restrictive” test, which was capable of leading to unfairness;

that both the DJMC and the judge had, as a consequence, made an unwarranted causal leap from the father’s historical interest in teenage sex to an order for supervised contact;

that there was scope for unfairness in dividing expert evidence into the medical and the non-medical and applying different criteria to each;

that although the father had been guilty of delay in not appealing against the initial refusal of a second medical expert, the delay would not have been material;

that whilst the court had to take the cost of obtaining a second expert’s report into account, cost should not be a paramount consideration: equally, the “scarcity of resources” test, if over-used, was capable of leading to unfairness; and

the proper approach was to allow a party to have a second opinion. Not to so do ran the risk of compromising the fairness of the proceedings and could also give rise to a breach of ECHR Articles 6 and 8.

In the instant case, Mr. Kirk agued that the absence of a second expert deprived his client of a proper basis upon which to cross-examine SK and that, as a consequence, the hearing had been unfair.

I do not think there is anything in these points, or that the judge made any error of law in reaching her conclusion. In my judgment, the ratio decidendi of her judgment is not in paragraph 10, which is largely descriptive, but in paragraphs 14 and 15 which I have set out in full. Above all, she was right to come to the conclusion that, in turn, the DJMC was entitled to come to the conclusion that he did not need a further report in order to deal with the dispute.

Family proceedings relating to children are unique in the control which the judge has over expert evidence. No expert can be instructed without judicial permission. It follows that a judge now decides each application for a second opinion on its merits by reference to the criteria set out in the Overriding Objective, the Practice Direction and the Family Procedure Rules 2010 (the FPR). In each case it is a matter of judgment, and the critical questions remain: Do I need this report in order to enable me to deal justly with the case? What will the additional expert add to the case?

In my judgment, this is essentially what Sumner J was doing in Re SK. Speaking for myself, I do not find the division into the medical and the non medical particularly helpful. The message I take from Re SK is the judge’s statement that “there has to be a good reason to justify any further reports once the first one has been obtained”.

In the instant case, the choice of expert was essentially made by the father. The expert was entirely appropriate for the task in hand. The father did not seek to ask him any questions, not did he seek timeously to find another expert when the LFF said they did not undertake psychiatric assessments. In any event, it does not seem to me a case in which psychiatric evidence would have been appropriate. Cross-examination of the expert largely went to fact, and the judge was right to say that findings in this respect were essentially within the province of the DJMC. There was no unfairness to the father, or any breach of ECHR Article 6, although in my judgment ECHR Article 6 adds nothing in this context.

As to ECHR Article 8, the DJMC did not form his view that supervised contact was in the best interests of the child on the basis of SK’s view alone. He took into account the view of the guardian; he considered and weighed the Welfare Checklist in section 1(3) of the Act and the local authority’s care plan. Every case concerning children involves balancing the ECHR Article 8 rights of the parties, and reaching a conclusion which is in the best interests of the child. The DJMC’s decision was taken in the overall context of ABC’s welfare. He considered the “no order” principle and explained why he was making a supervision order. He was plainly entitled to reach the conclusion he did, and the judge was right to uphold him.

I also agree with the local authority when it submits in its skeleton argument the reference to the scarcity of resources of both experts and money is a proper consideration for the court to have, as it is a true reflection of the reality of children’s proceedings. The overriding object in the FPR specifically refers to “saving expense” and “allotting to a case the appropriate share of the court’s resources”. These are matters to which the court should have regard when dealing with a case “justly”.

W v Oldham MBC [2005] EWCA Civ 1247, [2006] 1 FLR 543, was a highly unusual case on its facts. It involved an allegation of non-accidental head injury. The judge thought she was dealing with a medical consensus. In fact, all the other doctors in the case deferred to the one neuro-radiologist who had the skill to read the scan. A second opinion was thus both just and necessary.

In my judgment, this is sufficient to dispose of this appeal. Speaking for myself, I do not find the comparison with civil proceedings particularly helpful, and have come to the conclusion that such an exercise is outwith the scope of this appeal. I do not, accordingly, propose to analyse the civil decisions or say anything about them.

For all these reasons, I would dismiss this appeal.

Lord Justice Rimer: I agree.

Lord Justice Jackson: I agree