C (A Child), Re

On 31 January 2013 the Family Procedure Rules 2010 (FPR 2010) were amended so that the power of the court to order expert evidence was restricted. Rule 25.1 FPR 2010 was amended to read:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

The rules provide a comprehensive procedural code for the regulation of expert evidence during case management of both private and public children cases.

On 22 April 2014 section 13 of the Children and Families Act 2014 (CFA 2014) came into force. Sub-section 13 (6) provides that the court may give permission for expert evidence only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. Section 13 provides a statutory scheme with criteria. It is mandatory to have regard to the same. It replaced rule 25.1 FPR 2010 but in essentially the same form. I shall return to the precise terms of the statutory scheme and the procedural code in due course.

On 21 November 2014 the magistrates sitting in the Family Court at Dover made a decision about expert evidence to which part 25 FPR 2010 and Section 13 CFA 2014 applied. On 23 January 2015 His Honour Judge Scarratt hearing an appeal from that decision was likewise seized of a question to which the statutory scheme and the Rules applied.

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

The order made on 21 November 2014 by the Family Court was as follows:

“1.

The matter is to be listed on 30^th January 2015 at 2pm for a Review Hearing at the Family Court sitting at Dover. The parties are directed to attend at least one hour beforehand.

1.

The Father shall submit to a full psychological assessment and the following consequential directions apply:

a)

The expert shall be Court accredited

b)

The identity of the expert and letter of instruction shall be agreed within 7 days and in the absence of an agreement shall be nominated/approved by the court

c)

The report shall be filed and served by 4pm on 23^rd January 2015

d)

The costs of the said report shall be borne equally between the parties, the court deeming that the costs are a necessary and reasonable disbursement

2.

The parties do not have permission to file and serve any other evidence/documentation pending the next hearing.

3.

The CAFCASS officer shall file and serve copies of the observation records from Core Children’s Services.

4.

The Father shall continue to spend time with the child at the L2 supervised contact centre at Core Children’s services on alternate weeks and send indirect contact in accordance with the previous order. The Father is not permitted to send photographs to the child.

5.

Costs in the application.”

The court comprised 3 magistrates and their legal advisor. It was considering directions in private law children proceedings concerning the 3 year old son of the appellant father and mother. The parents are separated and the issue before the court was whether the father should have unsupervised contact with his son. The parents are not in agreement about a number of issues including schooling, vaccinations and the child’s family name but it appears that this hearing was limited to considering the progress of supervised contact in a contact centre.

I doubt that it was wise for the court to sever off one welfare issue from the rest because that gives the impression that it is not considering all of the evidence on all of the issues together. The parental disputes are part of one problem that needs to be solved and save where an issue is urgent they should be heard together, but that is not the object of this appeal. The primary application was that of the father for a child arrangements order. The father was a litigant in person assisted by a McKenzie friend. The father is Serbian and requires some assistance with interpretation which was provided. The mother was represented by counsel. The child had not been joined as a party but the Cafcass Family Court Advisor (FCA) was present and assisted the court.

The court heard submissions from mother’s counsel, father and the FCA. No oral evidence was heard and there was no reference in those submissions or in the magistrates’ reasons to any written evidence that was filed or to any previous orders of the court.

During the course of her submissions, counsel for the mother, Ms. Slee, made an oral application for a psychological assessment of the father. She acknowledged that a written application in accordance with part 25 FPR 2010 had not been made. The expert was not identified. There were no CVs for the court to consider, no timetable, no issue identification, no draft letter of instruction and no costings. Father’s only notice of the application was in an informal discussion before the proceedings and he says that he did not understand that the application was going to be made in the face of the court.

Ms. Slee told the magistrates that the identity of the expert and a letter of instruction could be provided to the court within seven days and she conceded that if the court wanted “a proper part 25 application” the matter could come back to the court within a short timeframe. Given that her instructions were to pursue the application, the caution she expressed was appropriate and was more than sufficient to alert the court to the fact that none of the procedural protections to which the father or the child were entitled had been complied with. In fact no paper application has ever been issued nor have the documents or information identified been filed or served.

The mother’s reasons for making the application were expressed to be that she did not agree to unsupervised contact and that supervised contact was not progressing as well as she would have hoped. She expressed her opinion through counsel that the father had a personality disorder and that she was deeply concerned by the history and by his behaviour. None of the evidence which had been filed was referred to and none of it was provided either to Judge Scarratt or to this court. Given the lack of reliance upon it one has to assume it was irrelevant to the issue in this appeal

A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.

The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.

This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

Returning to the process that was in fact adopted: the magistrates asked the FCA for his opinion on the application that had been made. He said this:

“………………..my view is that [the mother] is being rather hypercritical of that contact. It was actually rather good. Criticisms for hugging a child sways dangerously into cultural expectations in the UK as opposed to Serbia and so on. I have never heard in court someone being criticised for hugging their child who they have not seen in some time. So, I think that is frankly unfair. [……]

It is not a good environment for him [the father] but there is some evidence that he can focus on his child’s needs when it comes to actually presenting the child with [inaudible] directly. [……] Frankly, it is not clear to me that a psychological assessment will be helpful. You have a letter from the GP. I am not sure that there is a mental health problem here.

[……] I think I am probably an agnostic on the point, sir, in the sense that while I think that an expert witness may very well give us some depth of understanding, I am not sure whether it is going to help us very much to progress the issues because I suspect that what is really effectively needed is some level of concrete evidence that 101 issues are going to be put to one side for the sake of [the child] and that can be sustained”.

There were contact notes taken by Cafcass that were available to the court. They demonstrated no behaviour that would have allowed of any conclusion other than that expressed by the FCA.

This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.

In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

The written reasons for the decision given by the magistrates are as follows:

“We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

It is perhaps convenient to set out the statutory scheme and procedural code not least because the frequency with which its aim is frustrated suggests that there is insufficient knowledge of it among practitioners.

There is a comprehensive procedural code for the case management and determination of private law children cases that is to be found in part 12 FPR 2010 and in particular at PD 12B – the Child Arrangements Programme. That brings together the application of the overriding objective in part 1 of the Rules with other important provisions including those relating to expert evidence in part 25. PD 12B provides a signposted roadmap for private law children proceedings including the case management steps, timetable and procedure that are to be put in place to ensure that the statutory scheme is followed and procedural protections are observed.

Part 25 FPR 2010 provides a comprehensive procedural code which ensures that the use of expert evidence is appropriate in an individual case. The default position is now described in rule 25.4

“25.4

Control of expert evidence in proceedings other than children proceedings

(1)

This rule applies to proceedings other than children proceedings.

(2)

A person may not without the permission of the court put expert evidence (in any form) before the court.

(3)

The court may give permission as mentioned in paragraph (2) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings.”

When an application is made to put expert evidence before the court the provisions of section 13 of the 2014 Act are engaged:

Part 25 of the Rules implements the statutory obligation and sets out how the obligation is to be carried into effect. In particular and without excluding the effect or importance of the other rules in this part, rule 25.5 re-iterates the criteria to be considered by the court, rule 25.6 prescribes when an application is to be made and rule 25.7 describes how i.e. in what form and with what materials the application is to be made:

A failure to comply with the code is regarded as being sufficiently important that by rule 25.5(1A) it is given enhanced status as a prescribed matter to be taken into account by the court when it considers an application which is not in compliance with the Rules.

That provision applied both to the magistrates’ decision and the consideration of it by Judge Scarratt on the appeal. I need say no more than that the whole scheme and its procedural code was ignored. For the sake of completeness it is prudent to re-iterate in this judgment well known decisions of this court which should need no repetition.

In the matter of TG (A Child) [2013] EWCA Civ 5 the President of the Family Division sitting with my Lord, Lord Justice Aikens and Sir Mark Hedley gave definitive guidance on case management including the new test for expert evidence in part 25 of the Rules. Nothing I have said is intended to detract from that decision, quite the contrary, I welcome the opportunity to associate myself strongly with it.

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37.

None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

In Re H-L (A Child) [2013] EWCA Civ 655 the President this time sitting with McFarlane LJ and Treacy LJ had occasion to re-visit the new test for the admission of expert evidence and the meaning of the word ‘necessary’ used in the 2014 Act and part 25 of the Rules. At [3] of his judgment the President said:

“3.

The short answer is that ‘necessary’ means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not lease because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence. If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather difference context, in Re P (Placement Orders: Parental Consent)[2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ’reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

And at [6] he re-iterated the guidance given in Re TG

“6.

Inevitably there will be occasions when this court does nonetheless have to interfere with a case management decision. Such cases are few in number, not least when contrasted with the very large number of case management decisions being made, day in day out, by judges in family cases. This is as it ought to be. It shows the system working as it should. Recent examples include Re B (A Child) [2012] EWCA Civ 1742 and Re G-C (A Child)[2013] EWCA Civ 301. Neither of these cases lays down any new principles. Each is simply an application of well-established principles to the facts of the particular case. So too was Re F (A Child)[2013] EWCA Civ 656, where this court refused permission to appeal from a case management decision of a judge who had refused to direct the appointment of an expert in circumstances where all the parties were agreed that there should be an expert report. The principles to be applied are those set out in Re TG.”

Finally, in this short review of the materials to which the magistrates should have had regard, there is PD 25B. That sets out the duties of the expert and the standards that an expert has to abide by. When an expert is instructed he or she must comply with that practice direction and the professional obligations to which it refers. It may seem an obvious point, but if the court does not identify the expert by reference to his or her professional body and registration, let alone his or her skills and expertise, it cannot apply PD 25B and cannot thereafter complain as it sometimes has to that the expert has not complied with the standards that are expected by the court.

It should by now be obvious that on any reading of the process undertaken by the family court there was no compliance with the statutory scheme and the procedural code. That had the effect of putting a weapon into the hand of the mother without good reason. The father was placed under an obligation to do something that was not reasoned on the evidence and in respect of which, if he failed to comply, adverse inferences could be drawn which could affect the welfare determination. That was not a fair process. Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

In A Local Authority v DS[2012] EWHC Fam 1442 (Fam) Sir Nicholas Wall, P, gave guidance on the question of the nature and extent of the reasons which should be given to allow the LAA to make a funding decision. At [45] he said

“45.

In all the circumstances of this case, therefore, I feel able to offer the following guidance:-

i)

The words “the cost thereof is deemed to be a necessary and proper disbursement on {a named individual’s] public finding certificate” (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind with the LSC or, for that matter anybody else. In addition, there must be doubt about the court’s power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.

ii)

The test for expert evidence will shortly import the word “necessary”. The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word “necessary” for “reasonably required” and there will be a new Practice Direction.

iii)

It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say – if it is the case and the hard pressed Tribunal with a long list has had the time – that it has read all the (relevant) papers.

iv)

If the court takes the view than an expert’s report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.

v)

There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.

vi)

“Reasons” in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order.

vii)

Speed is of the essence in proceedings relating to children.; An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.

viii)

By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert’s contract is with the solicitor, and if he or she does not recover the expert’s costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.

ix)

Similar considerations to those set out above apply to any challenge to the LSC’s ruling.

x)

If a case is urgent, it should be so marked and the reasons for its urgency explained.

xi)

Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and “user friendly”. Practitioners should look out, in due course, for the amendments.”

For my part I would endorse that guidance.

For all these reasons the magistrates order cannot stand and must be set aside. The decision made by Judge Scarratt on 23 January 2015 did not deal with the issues I have described. He considered the appeal from the perspective that the exercise of discretion by the magistrates should not be interfered with. With respect to the judge that was a superficial approach to an important question of procedural justice. His decision cannot stand.

During the hearing before this court we were informed for the first time that there had been another directions hearing before the magistrates sitting in the Family Court on 30 January 2015. That was no doubt in response to the decision made by Judge Scarratt and the fact that the procedural formalities of a part 25 application remained outstanding. Unbelievably, and despite the time that had elapsed which would have permitted compliance with the statutory scheme and the Rules, the Family Court proceeded to make further directions as to expert evidence without any of the protections to which I have referred being observed. As I have remarked, there is still no part 25 application or evidence before the court and no-one thought it necessary to update the materials before this court to include the documents relating to the new hearing.

Given the conclusions to which I have come and for the reasons I have given, this subsequent hearing can have been of little effect unless it corrected the errors I have described. It did not and accordingly the orders made on that occasion must also be set aside. No appeal has been entered in relation to the order made but Ms. Slee conceded that if the orders under appeal are to be set aside then likewise this order must be set aside.

I would set aside clause 2 of the order of 21 November 2014, the whole of the order of Judge Scarratt of 23 January 2015 and the whole of the order made on 30 January 2015 save for clause 6 which confirms the father’s contact.

Given the procedural problems that have beset this case I would remit the proceedings to the Family Division Liaison Judge for him to re-allocate them to a judge who can provide judicial continuity. A fresh look at case management in accordance with the Child Arrangements Programme is required. For the avoidance of doubt I emphasise that the same FCA should continue to be involved and that contact should continue in accordance with the existing order of the court. As a consequence of this determination there is no application before the court under part 25 FPR 2010 and on the materials provided to this court no basis for such an application.

I would allow this appeal.

I agree.

I agree with the judgment of Ryder LJ and the order he proposes. The problem of unnecessary expert reports has not been confined to family cases. The result of a proliferation of unnecessary expert reports (in whatever type of case) is that courts are all too often swamped with materials that are either not relevant to the issues in the case or are not specifically focused on the relevant issues. Unnecessary expert reports cause delays and, inevitably, costs are increased. In family cases where public funding is often involved this had meant that taxpayers’ money has sometimes been wasted. Section 13 of the Children and Families Act 2014 and part 25 of the FPR now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously. They were completely ignored in this case by both the magistrates and, I fear, by Judge Scarratt, and further ignored even when the case came back before the magistrates again on 30 January 2015. Moreover, as Ryder LJ has pointed out, a mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful. That, too, was not apparently appreciated by either the magistrates or Judge Scarratt.