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.

“3.

The history to the matter is as follows: the father has two cautions for having had sexual intercourse with under age girls and they were accepted by him in or about 2008. At that time the father was 22. He is now just 25. The mother is 41. (ABC) is her fifth child. The others range in age from 25 down to 14 and it is fair to say that there were concerns about her parenting those children. The father met the mother over the internet. ABC was born on the 6^th April 2009. Because of the concerns about the mother and the fact that little was know about the father save he has the two cautions to which I have already referred, the Local Authority commenced care proceedings in respect of ABC.

4.

Dealing from here on with matters relating to this appeal, it was agreed between the relevant parties that a report on the father should be obtained from the Lucy Faithfull Foundation. The letter of instruction drafted by the father’s solicitor is dated 1^st June 2009 … It asked for an expert opinion independent of the parties, a psychiatric opinion in respect of the father and mother and to answer various questions….. Included therein was the request that if the assessment was that the father’s behaviour or conduct presents risk to ABC “please provide comment upon treatment and support programmes including prognoses and timescales.”

5.

The report was prepared by (SK). Immediately following the referral it was pointed out by the Lucy Faithful Foundation that they did not undertake psychiatric risk assessments and nor could they address questions relating to mental health prognosis and medication. However, it was clear ….. that it had been agreed they would consider some alternative questions. The report from the Lucy Faithful Foundation is dated 27^th August 2009. (SK) says that he interviewed the father for 6 hours on 2 consecutive days on 10^th and 11^th August 2009 in order to prepare his report. He says that he discussed with the father not only the cautions but the father talked to him in detail about internet pornography. (SK’s) conclusion was that the latter was more concerning than the cautions which the father had. He recommended that the father should undertake the 10 months Sex Offender Internet Treatment Programme organised by the Probation Service.

6.

The father has never sought to ask (SK) to amplify or expand anything in his report prior to the Court hearing in July 2010 although he certainly would have been entitled to do so under the rules governing experts within 28 days of receiving the report (see the Civil Procedure Rules rule 36.6 to be found in the Family Court Practice 2009 at page 1654.) The father’s initial response to the report was to file a statement which is dated 23^rd November 2009…. In that statement the father said that he did not accept (SK’s) statement that he had admitted his use of pornography was “excessive and problematic” and while he admitted he used pornography he did not believe that it meant he was a danger to ABC, nor that he presented a risk to teenage girls generally. He said “I would never use pornography in front of a child or in any way which might harm her.” He found (SK’s) comment that he may have an incestuous relationship with ABC unacceptable and he challenged (SK’s) opinion that the father’s relationship with the mother is that of a child to an adult. He said he was willing to undertake the treatment programme which (SK) had recommended. By 3^rd March 2010 when the father completed his threshold statement he denied the threshold required under section 31 of the Children Act 1989 had been crossed and he did not agree to undergo treatment …….

8.

At a hearing in March 2010 (the solicitor then acting for the father) applied for the father to have the benefit of a second expert report. The District Judge adjourned the application [in fact he refused it] but agreed to the father asking (SK) to produce his notes. Those were received in good time for the hearing. However the father disagreed with some of the matters (SK) said had been discussed at the hearing and their differences could not be resolved with the notes. (The father’s solicitor) renewed his application for a second expert report at the hearing which commenced on 1^st July and took two days. The District Judge said that he wanted to hear the evidence and if he considered he needed a second expert report having heard the evidence of (SK) and the father he would go on to order one. The case then proceeded.”

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: -

“I do not believe (the father) would knowingly place ABC in more palpable sexual danger or that he does not possess a capacity to acknowledge potentially harmful, even of a sexual nature, scenarios. He does recognise that sex with children is not only illegal but potentially extremely damaging and morally unacceptable. However his sexual risks are more complex and I do have concerns about his ability to recognise risks related to sexual boundaries. These risks are more indirect and are more likely to manifest when ABC is much older. These risks are also more associated with indirect sexual harm such as viewing pornography with ABC present. Also the risk of an incestuous sexual relationship when ABC reached pubescence cannot be ruled out especially if the father was to continue to view pornography without limits, continues to revisit his teenage sexual preference through further offending or through pornography and becomes emotionally isolated once again.”

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:

“d)

Findings on Threshold.

1.

I was impressed with (SK)’s report and oral evidence. It was evidence accurately based on written notes made at the time. While I accept that anyone can be wrong, there is no evidence to suggest (SK) has lied.

2.

I listened to, and read (the father)’s evidence with care.

a)

(The father) gives a very different account of his interviews with (SK). He did not, of course, make notes but relies on his memory of what was said.

b)

(The father) has not been consistent in his evidence as to those interviews. The contents of his statement dated 2.7.10 is at variance with his earlier statement of 23.6.09. I find his evidence to be inconsistent and unreliable.

c)

(The father) now believes that he has no problem (and certainly not a fixation) with internet porn.

d)

Having considered the totality of the evidence, I find that where there is a dispute in the evidence of (SK) and (the father), I prefer that of (SK).”

He then reaches his conclusions in these terms:-

“1.

I now turn to the question of what, if any, final order I should make.

2.

I have once again considered (the father’s) application to adjourn for a further expert report to asses his sexual risk to (ABC). This application is opposed by all other parties to the case. I have found (SK)’s report to be accurate and thorough. A further report would not take this case further. It would, however, delay finalising a case which needs to be concluded. This application to adjourn is therefore refused.

3.

Turning to the welfare checklist, this is dealt with thoroughly in the amended final care plan. I adopt its contents. I will deal with (the father)’s contact to (ABC) at a later stage.

4.

I have been greatly helped by the Guardian’s Report.

5.

In view of the history of (the mother) and (the father), I am concerned for (ABC)’s welfare. However since July 2009, following residential assessment, (ABC) has been placed with (the mother) at home. By all accounts (ABC) has done well with her mother. (The mother) has provided good care and has showed she is capable of maintaining those standards. Sadly (ABC) has suffered some ill health (a bone infection and juvenile arthritis) which has needed investigation and treatment. Clearly worry and stress have been caused to (the mother), who seems to have responded and coped well. This is a positive indicator for the future.

6.

As far as contact with (the father) is concerned, I find that in view of the contents of (SK)’s report, the proposals for supervised contact made by the Applicants and Guardian are fully justified, at least until such time as (the father) has successfully completed an appropriate course to deal with his sexual risk to (ABC).

7.

The history of this family and the difficulties that remain both now, and in the future, mean that an order is necessary to protect (ABC). The totality of the evidence and the progress of (the mother) has made mean that I find a Supervision Order adequate. I adopt the care plan in full.”

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: -

“9.

It is perfectly clear from the Judgment of the District Judge that he did not consider he needed a second report, he said he found (SK)’s report to be accurate and thorough …

10.

The father now appeals against the refusal of District Judge Coleman to grant the second expert report. He points to various cases, copies of which he has helpfully gathered together and presented in a separate bundle, and I will deal with these now. It is clear from Daniels v Walker [2000] 1 WLR 1382 that the fact the parties agree a joint expert does not preclude one or other party from seeking a further expert opinion, if appropriate. The correct procedure would be appoint the joint expert, and if for reasons for wishing to obtain a further report are not fanciful the party should, subject to the discretion of the Court, be permitted to obtain that evidence. However from W v Oldham and KPW [2005] EWCA Civ 1247 Lord Justice Wall says that such a second opinion should normally only be permitted where the question to be addressed by the chosen expert goes to an issue of critical importance for the judge’s decision in the case. There is a need for the instruction of experts to be stringently controlled by the Court. A distinction might be made between a medical opinion and a non-medical opinion. (see paragraph 40 of the judgment and Re SK (Local Authority Expert Evidence [2008] 2 FLR 707). He said that whilst the Guardian might wish to remain neutral in a fact finding hearing, if he takes a view that a second opinion sought by the parents is properly necessary to achieve justice he should not hesitate to say so. In Re SK (supra), Sumner J referred to the factors to be taken into account when ordering a second report: he said experts are in short supply and their reports are expensive for whatever body is funding them. There has to be a good reason to justify any further reports once the first one has been obtained. The learned judge said the way to approach the question of whether there should be a second expert ordered in non medical cases was that the Court should look at the report and ask itself does it appear either fundamentally flawed or biased in approach, it is otherwise wrong, unbalanced or unfair. If the answer to any of those questions is yes, then that may by it be sufficient grounds to justify a second report. If the answer is no, then the next question is the role played by the report. Is it pivotal and can it be challenged without the need for a further expert report? The answers to these questions may be determinative but one needs also to consider the impact of a further report on the timetable for the hearing.”

Her conclusions are contained in paragraphs 14 and 15

“14.

It seems to me that it was entirely appropriate for the father to raise the question of a second expert in the light of his dissatisfaction with the contents of (SK)’s report. However, in my judgment it was also entirely appropriate for the district Judge on 1^st July to rule that he would hear the evidence and if he felt that he needed a second report after hearing the evidence of (SK) he would consider the ordering of one at that stage. It seems to me that the Learned District Judge was entitled to come to the conclusion that he did not need a further report having heard the evidence of (SK) and of the father. There was a large factual dispute between them to which I have already referred and in the light of the Father’s changes of stance it was quite within the ability of the District Judge to prefer (SK)’s evidence and to accept his conclusions. I do not and cannot conclude that the District Judge’s judgement was unfair or it prevented the father’s right to a fair trial.

15.

As I have already told Counsel for the Local Authority and (the father’s former solicitor) I intend to dismiss this appeal. The parties jointly chose the Lucy Faithfull Foundation to undertake the work and the letter of instruction was written by the father’s solicitors. That organisation was undoubtedly chosen because of its expertise in the field of sexual offending. The father was perfectly willing to undertake treatment when he filed his statement in November; his position had changed by March 2010. At the interview the father accepts there was a discussion about pornography which (SK) in his position at the Lucy Faithfull Foundation put weight on when reaching his conclusion. I repeat that the District Judge in my view weighed the evidence and was entitled to reach the conclusion (SK) was a more reliable witness in the light of the father’s prevarications and in the light of the evidence he heard. He was entitled to conclude he did not need a second opinion. He was entitled to proceed on the evidence he had in the circumstances he felt able to do so. As I pointed out to (the father’s former solicitor) during the course of the evidence in the case there is really no particular property in such terminology as “sexual fixation” and that, for example, in a case where a man in front of me spent time plotting with which woman he might spend the night and he spent each night with different women, I might refer to him as a person with a “sexual fixation”. I do not agree that it was only possible for the father to get a fair trial had a second expert been appointed or that a second expert’s opinion was necessary in order for (the father’s former solicitor) fairly to cross-examine (SK). That would certainly be fallacious if the second expert agreed with (SK) and it seems to me it is flawed in any event. I dismiss the appeal.”

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: -

“It is, of course, not enough … to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

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 –

“13.

Re-read the experts’ Practice Direction at [2009] 2 FLR 1383. Remember always that it is your case and your decision. An “expert” can only be instructed if you agree, and the function of the expert is “to provide an opinion about a question that is not within the skill and experience of the court”. So always ask yourself: do I need this additional report to enable me to make a fair and proper decision? What can this expert add or contribute to the case? If the answer to the first question is “no” and to the second “nothing” you are unlikely to order a report.

14.

Process is important in family law, and every hearing you conduct must be ECHR Article s 6 and 8 compliant. This does not, of course, mean that you must accede to every parent’s application for a second opinion: each decision is a matter of judgment. What is important is that your conduct of the proceedings is transparent and your conclusion is fair to everyone, including the child. Remember that the decision is discretionary, and that the exercise of discretion inevitably involves balancing different factors in the manner I have already described before reaching a reasoned conclusion.

15.

Always bear in mind the effect which any order you are being asked to make has on the time-table for the case.

16.

Always remember that issues of fact and credibility (who is believed and who is not) are matters for you, and not for the expert.”

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: -

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