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Surrey seems to be the hardest word

 
The High Court decision in Surrey County Council v AB and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1115.html

This is a judgment which might be pertinent for an elephant in the room issue since the Family Justice Review started moving us away from independent experts. Once you take that expertise out of court rooms and decisions about families, what is filling that gap? Is it sufficient to treat all social workers as experts without considering the huge differences between an experienced and analytical social worker and a relative newcomer?

The writer is aware of a pending article for Family Law Week prepared by Miss Battie of counsel, which touches on this very issue.

http://www.familylawweek.co.uk/site.aspx?i=ed128671

In this case, the Local Authority ended up apologising, in writing, to the parents and grandparents because the social worker they had been allocated was “at the bottom of her learning curve”

[Just like any profession, newcomers start out new and have to gain experience by doing it. Every social worker has to have a first case, a first contested case, a first adoption case. The significance of course is that adoption(or separation of a child from birth parents permanently) is, as the Supreme Court reminded us last year, the most dramatic order that can be made in family Courts and it requires a robustness and rigour in the analysis and decision-making if it is to be done fairly. I don’t mean to suggest that all experienced social workers get everything right, nor that all new social workers get everything wrong, rather that when you are looking at a social worker having the entireity of the assessment process on their shoulders rather than having experts to consult with, the individual ability of that social worker comes into play far more than it did two years ago.]

“That document repeats the apology given to the parents and paternal grandmother for them being at the bottom of the “learning curve” for the allocated social worker.”

[Any underlining is mine, for emphasis]

The child in this case was 2 ½ years old. He had significant needs

X has complex health needs. He was born with hypertonia, suffers from a visual impairment Peters Anomaly Type 1/Anterior Dysgenesis Anomoly, has significant motor delay, scoliosis of the spine and suffers from digestive difficulties. As a result of these health difficulties he requires a standard of care that enables his particular health needs to be met. Such care includes 24 hour postural support, careful monitoring of his diet and significant care when feeding and essential auditory and tactile stimulation to ensure his emotional needs are met and to compensate for his loss of other senses. He has been placed with foster carers since May 2012 under a section 20 agreement.
The parents also had significant needs

10. His parents have their own health difficulties. His mother has cerebral palsy involving weakness in one arm and both legs and a possible mild learning disability. The father was diagnosed as a child with ADHD and is said to have Asperger-like symptoms, although there is no formal diagnosis.

The quality of the assessment and interventions that the parents received were a critical part of the case (and given that the Local Authority apologised in writing, you can make an informed guess that there was some judicial criticism of them)

11. One of the central issues in this case has been the adequacy of the assessments of the parents as to their capacity to care for X. Put simply the parent’s case was that the local authority comprehensively failed in their duties to support X’s continued placement with his parents. It is submitted there has been an unfair process resulting in a catalogue of missed opportunities and inadequate assessments, which have resulted in the parents now being at a significant disadvantage in putting themselves forward to care for X.
12. The local authority acknowledges some of their procedures and assessments have been inadequate, but submit the basic factual background has not changed. This is a young boy who needs exceptional care due to his particular needs and the combination of the parent’s volatile relationship and the father’s inability to provide emotional care for this young boy mean his parents were unable to provide the care he needed.

The Judge follows through the chain of mistakes and missed opportunities
Core assessment
17. A core assessment was started on 23 March 2012 and completed on 25 April 2012. Curiously the core assessment under “Agencies contributing to core assessment” records “No Key Agencies identified”. Under the section asking whether there were any disability or communication issues for the child or parents are to be recorded the box is left blank. This is despite it then being known about some of X’s health difficulties and the body of the assessment refers to his ‘global delay’, the mother having cerebral palsy and learning difficulties and the father Aspergers. The assessment also records in relation to the mother that she was ‘unable to use public transport due her physical disability’. The assessment goes on to record under parents’ views ‘[the parents] do not believe that their difficulties will impede on their capacity to care for or meet their son’s needs and their wish for him to be returned to their care in the very near future’. The parents are recorded as not agreeing with the local authority’s recommendation that X be made the subject of a child protection plan, however it goes on to record that both parents ‘are keen to work with all agencies so that they will be able to care for their son’. In the decision section the ‘No further action’ box was ticked.
18. This was not a promising start. On the face of the document it seems incomprehensible that the core assessment failed to identify the disabilities and communication difficulties that were obvious on the face of the assessment. Of the ‘tick box’ decision options there was included ‘specialist assessment’ and ‘referral to other agency’ yet despite identifying difficulties which required further assessment and the parents expressing their willingness to work with agencies no further action was taken. It is suggested that this was one of the first lost opportunities to support the parents in their wish to care for X. I agree.
Core group meeting
19. There was a core group meeting on 27 April 2012 attended by the parents, maternal grandparents, allocated social worker Ms Perrin, the ATM Mr Taljaard, Ms Livingstone the health visitor and Ms Murdoch (described as other social care staff). The minutes dated 8 June 2012 (some six weeks later) record ‘a residential unit for AB and X was discussed with AB stating that she is not keen for this to happen as this would put further stress on [the parents] as a couple’.
20. At this time X remained in the care of the mother in the maternal grandparents’ home. After the parents reported the mother’s brother’s use of pornographic sites X was placed with foster carers pursuant to section 20. There is no evidence of what, if any, other options within the wider family were explored to enable X to remain being cared for by his mother.
Allocation of new social worker

21. Ms Kim Horrox became the allocated social worker on 29 June 2012. She took over from Claire Stevens. Garth Taljaard was the ATM and remained so until Ms Grindon took over in January 2013, she remains the ATM to date. Ms Horrox qualified in 2011 although she had some previous social work related experience. This was her first case that resulted in care proceedings. By this stage X had been with the foster carers for six weeks.
22. Ms Horrox was clear in oral evidence that at the handover meeting in June 2012 she was informed that a residential assessment had been refused by the mother and was not being further explored. However, this is not consistent with other documents at the same time which seemed to indicate this issue was being actively pursued. There is a record of a discussion with the mother on 15 May 2012 in which she says she would rather go to a mother and baby foster home or residential unit than go back to her parents’ home for further assessment. A letter from the paediatric dietician to the consultant paediatrician on 24 May records that the mother was ‘awaiting a mother and baby placement in foster care for her and X’, it was mentioned as being the preferred plan in a meeting with the safeguarding nurse Mel Baxendale on 29 May 2012 and on 22 June 2012 there is an email from Mr Taljaard ATM after the review CP conference stating that the team manager and area manager have agreed a care plan that allows mother and baby to be placed in an appropriate residential unit for further assessment. This is said to be a further lost opportunity, I agree.
Assessment by the new social worker

24. Ms Horrox stated that on taking the case over she wished to conduct her own assessment of the parents and make her own judgment. She met with the parents on 3 July and on 17 July a youth support worker informed Ms Horrox that the mother was declining support from adult services. Ms Horrox accepted in oral evidence that she should have been more creative in helping the mother access appropriate support.
Assessment of the parents

29. In February/March 2013 there was a referral by Ms Horrox to the adult services team for an assessment to be conducted as the parents were said now to be consenting to such an assessment. It is accepted by Ms Horrox that this referral was not accepted by the relevant team until 23 September 2013 some 7 months later. Ms Horrox said in evidence that having made the referral she chased it three times and on the third time was told it needed to be sent to the ‘transition team’, that required a different referral form which she completed and sent. That was apparently deleted by mistake, once that was discovered a further referral was sent and then, finally, it was ‘actioned’. I agree this was another lost opportunity.

 

Delay in issuing / drift in section 20
30. The care proceedings were issued on 25 March 2013, 10 months after X had been placed with foster carers and over 4 ½ months after the local authority issued letters of intent to the parents informing them of their intention to issue proceedings. Ms Horrox frankly accepted in evidence this delay was unacceptable, she acknowledged it was her first case where care proceedings had been issued and had been a ‘steep learning curve for her’. She agreed with Ms Jenkins on behalf of the father that it was not fair the parents were at the bottom of this learning curve she said ‘I apologise for it being at the expense of this family’.
Lack of supervision of the social worker
31. Despite the volume of material in this case and the length of the social work statements there is little, if any, evidence of effective supervision of Ms Horrox between June 2012 and September 2013. If there had been it would have been expected such unacceptable delays would have been picked up and effectively managed.

 

Failure to consider of all of the options
32. The local authority care plan at the time the proceedings were started was, in reality, adoption, although Ms Horrox said she kept an open mind. The discussions she had had with the mother at the PLO meeting in November was in the context of long term placement with Mr and Mrs SG, either under a care order, adoption or SGO. In her evidence Ms Horrox kept talking about ‘parallel planning’ but there was no evidence of any effective parallel assessment of the parents’ ability to care for X at the same time as investigating alternatives in the care of the local authority. That is what parallel planning means. It is right the mother is recorded at the meeting in November as effectively supporting the long term placement of X with Mr and Mrs SG but that was without legal advice and in circumstances where there was no evidence of any alternative involving X being cared for by his family being actively discussed at that time.

The social work assessment in proceedings being flawed

33. Following transfer of the proceedings to the County Court the first effective hearing was not until 13 August. HHJ Cushing case managed the four significant hearings between then and 17 October 2013 when the deficits in the assessments undertaken by the local authority became clear. In essence a parenting assessment had been undertaken by Ms Horrox without the benefit of any assessment from adult services, and the subsequent assessment by adult services was accepted by the local authority to be inadequate. The care plan filed by the local authority on 6 September sought care orders and placement orders with contact with the birth family 4 times a year and made no mention of any outstanding assessments
The failure of the professionals meeting to answer the agreed questions
34. The Professionals Meeting convened on 2 October 2013 was, unfortunately, not a good example of how such a meeting should be structured. The minutes record at the beginning the 8 questions that were described as the purpose of the meeting, which included such matters as what are the identified needs of the Mother and Father, now and in the foreseeable future? What services are required to meet those needs? How can those serves be provided? What services are therefore required to allow the parents to meet X’s needs? This is followed by 9 pages of typed notes of the discussion with a record at the end as follows:
Meeting confirmed that
1) X’s needs are such that he needs consistent care
2) CWD will not offer a service
3) SSD to arrange another TAC meeting (team around the child)
35. In her evidence Ms Horrox agreed with Ms Wiley, on behalf of the mother, that this meeting did not answer the questions at the beginning, although it is clear from the record of the meeting that both the CWD team and the AWD team informed the meeting that they could only do assessments of the parents if X returned home, which seemed an unnecessarily unhelpful and rigid position to take. This was another lost opportunity.

 

 
The failure of the community based assessment

 

37. The matter came before Mostyn J on 22 October 2013. He transferred the case to the High Court and the order provides for further comprehensive community assessments to be conducted with a recital recording that ‘the court indicating that there should be an independent element to the assessment and that if a different person from both the Children with Disability Team and the Adult Team undertake the assessment, this would constitute that independent element’.
38. A 6 week community based assessment plan was devised at the end of October which included the children with CWD and AWD teams. The assessments were completed in early December 2013 and involved nearly 100 hours of observed assessment by the various teams. The matter came before me on 18 December. I made directions leading to the final hearing on 12 March 2014. It transpired that Ms Gomesz carried out one of the assessments. She had been part of the earlier assessments, this was not made clear by the local authority in the evidence they filed. When the Children’s Guardian made enquiries she was informed there was no one else available and, in any event, it was too late to do anything about it. Whilst there is no criticism of the work undertaken by Ms Gomesz it was not what was intended by the order made by Mostyn J.
By the end of all of this (and a further independent social work assessment) consensus had been reached between the parties that the current foster carers who wanted to permanently care for X were the best people to do this.
This must be one of the most damning paragraphs I have ever read in a family court judgment. It is heart-breaking. We should NEVER be in this position.
48. I am satisfied the agreement reached in this case does meet X’s welfare needs. Whilst it will never be known if the correct assessments of the parents had been undertaken earlier, as they should have been, whether the parents would have been in a position to care for X the reality is now the comprehensive assessments undertaken since are united in their conclusions that the parents would not be able to care full time for X, even with extensive support being provided. Those assessments have been subject to the critical eyes of two independent people.

 
If all of that were not enough, the Court went on to make four particular findings about the failings of the Local Authority
(1) Delay generally and, in particular, in issuing proceedings
72. Some of the delays in this case have been wholly unacceptable. There are three specific examples that illustrate the point:
1) X was placed with foster carers in May 2012, care proceedings were not issued until March 2013 some 10 months later. The fact of that delay put the parents in an increasingly difficult position to seek to restore X to their care, as there was no structure to the period of time prior to the issue of proceedings and they did not have effective access to legal advice. To rely, as Ms Horrox did in her evidence, on the fact that they did not take up the offer of legal advice at the PLO meetings misses the point;
2) The decision to take care proceedings appears to have been made prior to November 2012 yet the proceedings were not issued until some 5 months later. Again leaving the parents in limbo with the local authority, in effect, recommending permanent removal of X from his parents care by way of adoption but the parents not being within the structure of legal proceedings to challenge that was unfair. I appreciate the mother at the November PLO meeting appeared to be endorsing the plan of the local authority, but that was without the benefit of independent legal advice and was perhaps illustrative of the internal struggle she has had about where X’s best interests lay.
3) The delay in the referral to adult services from February/March to September 2013 was unacceptable. It was caused by a catalogue of errors, a lack of effective co-ordination and structure between teams that should be effectively working together. There appeared to be no system in place to chase up referrals.
(2) Ineffective supervision, planning or co-ordination
73. This concern applies in almost every aspect of this case up until late October 2013. There appears to have been a chronic lack of effective supervision of the allocated social worker who was inexperienced and dealing with a complex case. I agree with the observations made by Ms Dove about the lack of effective multi agency planning which should have been in place immediately after the initial core assessment in April 2012. Again three examples well illustrate this area of concern:
1) The initial core assessment dated 25 April 2012 is on the face of it flawed. It details the disabilities both X and the parents have, yet fails to record that in the relevant box which specifically addresses that issue. It records the parents willingness to work with all agencies so that they will be able to care for their son and then in the decision section ignores the options that would flag up further assessment or referral to other agencies and just ticks the ‘no further action box’. There is no evidence these inconsistencies were picked up in any subsequent discussions with the ATM or in any of the meetings.
2) When Ms Horrox took over the case she was clear in her evidence that at the handover a residential assessment was no longer being pursued as the mother did not agree. However other contemporaneous documents, one just a few days before she took over from the ATM is reported to state ‘the team manager and area manager have agreed a care plan that allows the mother and baby to be placed in an appropriate residential unit for further assessment’ and a letter in May refers to the mother waiting to hear about a residential assessment. It is deeply concerning that there appeared to be such a deep level of miscommunication on such a fundamental issue by two of the key social work professionals managing the case.
3) The failure to pick up in supervision (i) there had been no referral to adult services or when there was the delay of six months; (ii) to consider getting advice about how to more effectively communicate with the father; (iii) what further steps could be taken to engage the parents with support services; (iv) filing a care plan seeking adoption when a key referral to the adult disability team was still outstanding (which is not referred to in the Care Plan dated 6 September 2013 or the parenting assessment dated 17 July 2013)

(3) Not keeping an open mind about placement
74. There is a thread of evidence which points towards the local authority making up their mind at a very early stage that X could not be restored to his parent’s care and that, in reality, the options were either adoption or an SGO with his current carers. Whilst Ms Horrox said she retained an open mind, from the parent’s perspective that may not have been readily apparent to them. There is no evidence of a structure as to how that position was reached and an analysis of the options, with the advantages and disadvantages being properly weighed up and considering what support could be available for the parents. From the parent’s perspective it may have seemed an unfair process.
(4) Content of the statements filed on behalf of the local authority
75. The social work statements were far too long and, in part, unfocussed and there was a lack of balance regarding their content. For example, it was extremely difficult to find the core relevant material that underpinned the threshold criteria. There were pages of generalisations which lacked any real evidential value. The lack of balance in the way some of the information in the statement was presented is illustrated by the reference in Ms Horrox’s statement referring to the police being called by the neighbours in early December as the parents were reported to be arguing. The statement records the mother being ‘dishevelled’ is not in the referral from the police, which is the only source of the information. Also, what the statement does not record, which is in the referral document sent by the police to the local authority, is the particular neighbours who alerted the police had been previously arrested for wasting police time for making such calls. That could have been an important context that should have been set out and addressed, not just left out.
76. Another matter that arose in the oral evidence was comments made by the mother in July 2013 regarding her concerns about the paternal grandmother. Whilst those comments were referred to in general terms in the written material the detail only came out under cross examination by Ms Stone on behalf of the Children’s Guardian. Ms Horrox’s instincts were correct that information should have been recorded and disclosed. She was understandably concerned about the management of when it was disclosed, but appeared to be awaiting authorisation from some unspecified person to disclose it. It is right to record that the Court has made no findings about the concerns raised by the mother and no party has suggested that those concerns affect the paternal grandmother’s ability to care for X in the future during periods of contact.
To be fair to the social worker, the Judge outlined that these were not faults that lay entirely with her, but systemic failings
81. The court is acutely aware hard choices have to be made about limited resources but the structural failures in this case, particularly at the early stages, to properly assess the parent’s ability to be able to care for X has caused enormous delay in decisions being made about X’s future care.
82. I should make it clear whilst Ms Horrox has been the person giving evidence and been at the front line, I am satisfied on the information I have seen that the faults appear to be primarily systemic faults within the structure of the local authority. It was Ms Horrox first case where proceedings had been issued. She accepted there were delays in the disability assessments, delays in completing the relevant documentation for care proceedings. Those and other delays should have been picked up by those with responsibility for supervising her much earlier.

 

The Local Authority did take on board those failings and presented the Judge, after the judgment was delivered, with a blueprint for how they proposed to remedy those failings in the future. That doesn’t help this family, who were badly let down.

 

Having reached a broad consensus that X should live with his foster carers and under Special Guardianship Orders, there was also agreement that the Court should review the case in six months time.

62. What is being sought by the parties is for the court to retain a welfare oversight for a short period of time to assist the parties, if required, to deal with issues concerning the welfare of X. In particular to provide a legal framework which kept all parties on equal terms and did not undermine the morale of the parents and made both the parents and the local authority accountable to the court for the maintenance of a proper working relationship.

That posed a problem – how to legally structure that review?
One can easily understand that simply adjourning the care proceedings was not a palatable one, with the LA being in the driving seat, given the raft of criticisms made of them.
The eventual solution settled upon was to give the Local Authority leave to withdraw their application for care proceedings, and for the Court to use its inherent jurisdiction (if one of the parties asked them to)

64. Having considered the position I have reached the clear conclusion that in the very unusual circumstances of this case, and particularly because of the history, the court should accede to the request by the local authority to withdraw the care proceedings and invite one of the parties to issue proceedings under the inherent jurisdiction with the other parties to the care proceedings being joined as parties.
65. I have reached this conclusion for the following reasons:
1) The agreement reached by the parties was on the basis that the local authority does not pursue its findings regarding the threshold criteria and seeks leave to withdraw the care proceedings. It would be inconsistent with the letter and the spirit of that agreement, if the court went on to make findings, albeit on the lower level necessary to found an interim supervision order. The risk with that course is that it may hinder the future good working relationship between the parties which is not in X’s best interests. Particularly as there is going to be a change of team.
2) I am satisfied that the withdrawal of the care proceedings is consistent with X’s welfare. In the light of the agreement reached between the parties it would be wrong to require a trial on the threshold issues in this case. The parents accept X will be cared long term by Mr and Mrs SG under an SGO and they accept the revised care plan put forward by the LA regarding their contact. There would be no demonstrable welfare purpose in such a contested hearing. On the contrary I consider such a trial would seriously risk the positive steps made by the parties in reaching agreement. Having said that I am certainly not prepared to say on a summary basis that threshold could not have been made out in this case. As I indicated in argument, Ms Wiley’s submission at the start of this hearing that the proceedings were unlawful was ambitious and was wisely not pursued. I did not hear all the evidence and whilst it looked like the issues concerning missed medical appointments and failure to provide breakfast on one occasion during the assessment did not stand up to forensic scrutiny there were other issues, such as the parents’ relationship and the emotional care of X that would, if necessary, have required detailed consideration by the court as to whether the threshold criteria was met.
3) X’s welfare requires the parties in this case to look forward. I consider that has the best chance of succeeding if the care proceedings are withdrawn at this stage, rather than lingering on in the way suggested which may hamper the parties on the ground being able to move forward with a proper working relationship, which is what X’s welfare demands.
4) I have been informed by the parties that there are no procedural or funding obstacles in the way of the same parties being re-constituted within different proceedings. This step will not cause delay.
I am not sure that I share the same degree of confidence about funding obstacles, but no doubt some assurances had been obtained from the Legal Aid Agency. Care proceedings receive no questions asked free legal advice for parents (or at least “non means, no merits” funding within tight fiscal limits) whereas representation within the inherent jurisdiction sounds to me like it will be entirely discretionary for the Legal Aid Agency.

 

You be frank, I’ll be earnest

 

Another judgment from Mr Justice Baker, who I’m becoming increasingly fond of (although I think his decision about termination of parental responsibility probably will get overturned by the Court of Appeal).

This is Re L and M (Children) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1569.html

 

It is, sadly, not a terribly unusual case – unusual in society in general but not in the field I practice in. There were multiple and serious injuries to the child, and the medical opinion as to how these had been caused was at variance with how the parents said the injuries had been caused. The Judge carefully considered all of the evidence, and the judgment is a perfect analysis of the caselaw and the competing factors that the Judge has to consider, not least of course the well-known quotation from Dame Butler-Sloss   “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” 

 

The findings against the parents, including that they had not been honest in their account, were made by the Judge. So far, so commonplace, but there are two features in the case which lift it, and make it worthy of discussion.

 

Firstly, the judicial approach towards the instruction of experts in the case.  (It will not surprise you to learn that I completely agree with the Judge here, and commend him for saying these things. I have grave doubts that a case like Al Alas Wray would reach the same outcome, were we to try it again next year, because getting to the truth required the Court to be amenable to the instruction of multiple experts and no doubt delays were incurred in getting to the truth, which was that the parents were not responsible for the dreadful injuries and that there was a medical cause, allowing them to be reunited with a child rather than that child being adopted. It is simply, but ghastly, to imagine, how that case would have developed if the Court had simply heard evidence from the (very eminent) treating medical professionals.

We don’t hear, for my mind, enough about Al Alas Wray. We have set off upon a path, in family justice, of child rescue dominating over family preservation, no doubt in part due to the rightful sense that what happened to Baby P should never happen again. But what happened to the Al Alas Wray family ought not to happen to other families, and what could have been far worse (that their child was wrongly permanently separated from them) is equally something to be avoided if at all possible.  It worries me deeply that such cases might slip by us in the future.

    1. At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

 

    1. As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

 

    1. There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

 

    1. In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

 

“Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”

    1. This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

 

    1. Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

 

  1. This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

 

And secondly, as this was just a finding of fact hearing, there would then be a phase two, where assessments took place as to the future risk of harm that the parents might pose. The Judge reinforced this :

 

    1. I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

 

  1. All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.

Nothing terribly new or controversial there, but a warning between the lines about how such cases will be dealt with in our brave new world.

The President has indicated that cases involving non-accidental injuries will only go beyond the 26 week limit in exceptional cases, and the mere fact of a finding of fact hearing being required won’t be sufficient to warrant a delay. Well, that’s all well and good, but what it will mean in practice is that where now, these parents would have something like a 10-14 week period to reflect on the judicial findings, perhaps accept them, perhaps partially move towards them, perhaps put some practical or therapeutic arrangements in place, they will from autumn of this year, probably get a 2-3 week period to do so.  The consequence of findings in a case like this, might be that a mother and father need to separate from one another, and it seems to me inhumane to expect them to make decisions of such gravity so quickly. Additionally, that assessment of future risk would probably have been undertaken by an independent expert, whereas from autumn of this year, it almost certainly will be undertaken by the social worker, who just 2-3 weeks earlier was effectively prosecuting those findings. It isn’t much time to turn around the parents views, and still less for the parents to be able to turn around the view of the social worker.

 

We shall see. The revised PLO is nearly upon us, and it will be happening, so all that we in the system can do is to try our best to make it work fairly for all involved. I’ll try to stop carping from the sidelines and try to come up with positive solutions as to how we make this system work fairly, but my fundamental thought is that it WILL require WORK to make it fair and that approaching the new regime as “like the old one but faster” won’t be sufficient, people in the system will have to be more alive to the need for us to get decisions that are not only swift but RIGHT.

 


 

“Tales of the Un-experted” (sorry)

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it "value for time"]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

Devon knows how they make it so… necessary

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word 'necessary'] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

Letters of Destruction

 

You may well have heard that the new guidance on the instruction of experts came into force today.  If it is actually enforced, it will significantly reduce the number of experts and at the same time significantly increase the amount of preparatory work prior to requesting the involvement of an expert.

 

The Ministry of Justice published a jolly and triumphal press release about it, here

 

http://www.judiciary.gov.uk/media/media-releases/2013/tighter-rules-introduced-on-expert-evidence-family-cases

 

“New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.

Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.

The President of the Family Division, Sir James Munby, said:

“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”

“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.

“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.

In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.

The key changes to the existing Part 25 include:

  • a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
  • a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
  • in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.”

 

 

I was interested in the very last bit  – the Court approving the questions and setting them out in the order approving the instruction, because I wasn’t entirely sure that this claim was actually delivered in the changes, so have pressed a little further, and found that it IS, if the practice direction is followed  (yeah, right) :-

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Practice%20Directions/family-div-procedure-rules-2010-practice-directions-amendments-consolidated-04122012.pdf 

 

 

 

Well, it does seem, that if the Practice Direction is followed (ha!)  then rather than coming to Court with a name of an expert and some timescales, there should be a proper application, accompanied by a draft order [my underlining]

 

3.11 FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission as mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a) the issues in the proceedings to which the expert evidence is to relate and which the court is to identify; b) the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

 

(iii) are kept to a manageable number and are clear, focused and direct; c) the party who is responsible for drafting the letter of instruction and providing

the documents to the expert; d) the timetable within which the report is to be prepared, filed and served; e) the disclosure of the report to the parties and to any other expert; f) the organisation of, preparation for and conduct of any experts’ discussion

(see Practice Direction 25E – Discussions between Experts in Family Proceedings); g) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion; h) making available to the court at an early opportunity the expert reports in electronic form;

i)                    the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence

 

 

 

 

And then also, it appear that the party seeking the instruction should send the draft order and questions in to the Court in advance of the hearing

 

Asking the court to settle the letter of instruction to a single joint expert

6.1 Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.12(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings. In the magistrates’ court, the request should be sent to the relevant court or (by prior arrangement only) to any district judge (magistrates’ courts ) hearing the proceedings (and copied to the legal adviser) or to the legal adviser. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.

 

 

 

 

Well, my first cynical take on this is that this simply won’t happen. There’s quite a lot of this that was already in the Practice Direction on Experts which everyone cheerfully ignored. It is that traditional Practice Direction stance of rather than making two or three solid suggestions that everyone can follow, that you introduce a blizzard of utterly unworkable schemes all at once to the point where everyone takes one look at it and concludes that it is best to just pretend the whole thing doesn’t exist.

 

If it IS going to happen, and that the Judge refuses any expert assessment where the request is not Practice Direction compliant  [and that really depends on whether they are being sternly told behind the scenes that this is what they must do], then we are going to end up with an awful lot of adjourned CMCs, where we have to come back to Court and do it all again, only this time with reams of paperwork.

 [If a party seeks an expert assessment, and doesn't come with all of the paperwork and the CMC has to be adjourned, are they at risk of costs orders? Yet another reason for ducking being the lead on any assessment or proposed assessment] 

If it IS going to happen, two major practice points arise. Firstly, the advocates meeting before the CMC would need to be happening much earlier than the two working days prior that it currently is  (which in reality will just mean a later CMC).  Secondly, whichever of the two parents lawyers decides to be the lead on the instruction of an expert, is going to have a huge amount of work in organising that instruction, far far more than at present, and their profitability (ha!) in the case probably immediately goes down the Swanee river.

 

So, if you are only looking for one expert, expect to see some quarrels at the advocates meeting about whether mother or father’s team should be the lead; as neither of them will really want to take on this burden.  

 

[I also expect that counsel attending these advocates meetings will regularly find in their brief “under no circumstances agree to us being the lead on the expert”   - we squabble about ‘who has to be the lead’ now, when very little is involved, but this is now a massive volume of work]

 

 

This may, cynically, be the way that the Government intend to reduce the number of experts – it hasn’t been possible to get the Courts to refuse assessments  (being that they tend to follow the line of the Court of Appeal, which has been very pro-second-opinion), so they will just make it very very unattractive for those representing parents to actually make the applications.

 

 

So, watch this space for the first appeal from a Court who refuse an expert assessment because this Practice Direction has not been complied with.

Mis-practice direction – how not to write a letter of instruction

It has been plain to me for a number of years that alongside the official Practice Direction on Instructing Experts http://www.familylaw.co.uk/system/uploads/attachments/0001/8873/FPR_PD25A.pdf

there must also be a secret set of rules to follow when constructing a letter of instruction that goes to at least half of the parties, in order to produce the monstrosities that we end up with,  but which is not otherwise available.

[Just like the secret special snooker words to Lady in Red...  "a cut as thin as a thong"]

After exhaustive digging and research, and aided by Indiana Jones, Batman the world’s greatest detective,  the Famous Five, Nicholas Cage’s character in that National Treasure film, and Chunk out of the Goonies, I have found it, and here it is.  Unselfishly, I am prepared to share it, so that we all understand how those masterful LOIs really come into being.

Now we all know…

Constructing a Letter of Instruction in Family Proceedings –

a Mis-Practice Direction

1. Make it long. If you’ve asked less than twelve questions, you are doing it wrong. If less than fifteen, you’re still a bit of a lightweight, frankly. Heck, I could do seven questions in a Letter of Instruction just asking for a DNA test, what’s wrong with you? Are you even trying?

2. Ensure that you have at least two nested questions, ideally with six or seven sub-clauses in each. Then you can confidently say that ‘well, we only added two questions’ and get fourteen different things asked

3. If there is a bush, make sure to beat around it.

4. On no account ask a straight question. If you ask a straight question (like, for example “can the parent provide this child with good enough care, now or in the next six months?” ) the expert might give a straight answer, and then where would we all be? Think of the poor mug who has to cross-examine the expert if there’s a straight question and a straight answer. The purpose of the Letter of Instruction is to obfuscate, not illuminate, and to ensure that you get a report which has something for everyone, rather than one clear conclusion.  Your role model here should be Sir Humphrey Appleby.

5. Don’t be afraid to ask the same question again, by subtly changing the words and having it two or three questions further down. If the expert answers them both the same, then you shrug and say “oh well”, but if there are two different items, well, then you have inconsistency, and have topics for cross-examination.

6. If you do encounter a bush, it is essential that you beat around it.

7. Make sure you put at least one question in that is outside the expert’s area. For example, when dealing with a psychiatrist ask them about the mother’s parenting ability or the quality of contact. If an independent social worker, ask them about post traumatic stress disorder. If they give you an answer you like, hooray – if they don’t, you can cross-examine about how they’ve strayed outside their expertise.     [A particular favourite was a draft LOI to a psychologist which contained only questions for a psychiatrist and none on topic. I actually did see this draft]

8. Ensure that the cost section is written at such length and in such impenetrable detail that even a forensic accountant married to a director of the LSC would only have a vague grasp on what is intended. On no account tell the expert the truth, that you don’t know how much they will get paid, or when, and that no amount of chasing or complaining will make the LSC stump up any cash. The cash will simply fall from a branch on the LSC money tree when it is ripe and ready to fall, and not before. You cannot shake that tree.

9. Always try to fundamentally misunderstand attachment theory – a particularly good way is to ask whether the child’s primary attachment is to an adult they don’t live with and haven’t done for over a year, or whether the parent is attached to the child.  In fact, just assume that attachment is in any way relevant to the decision the Court has to take, and you’re half way there.

10. If you have a question for the expert which is really just a rambling theory that you might potentially stick in submissions, but you can put a question mark on the end of it, put it in anyway.  Anything with a ? at the end of it must be a question, by definition. We don’t put ? at the end of long rambling assertions, do we?

11. Feel free to set out in mindbendingly tedious detail, everything that the expert is inevitably going to cover in their assessment, but spell it out for them as if they had never done an assessment before. This couples ideally with the requirement for a nested question.

12. Feel free to ignore the standard of proof that we work towards, and pepper the questions with “is it possible?” “can it be excluded that” or “can we be certain that?” .    In particular, don’t worry that something like Ehler Danloss syndrome affects only one in a hundred thousand people, if it potentially explains the injuries, then the child is bound to have it, and you must insist on the expert testing for it or ruling it out as a possibility. No matter how expensive, time-consuming or intrusive the testing, it has to be done, so that the remote possibility can be excluded.

13. Always end with “and any other matters you consider relevant and important”  because the expert would never, ever, ever tell you something earth-shatteringly important if it didn’t absolutely fall within your already sprawling list of questions.

[If anyone can lay their hands on the fake practice direction, I’m sure written by a judge, which sets out the unwritten laws that people must be following in order to produce  the court bundles that he was seeing - with stuff like “ensure that any individual document is stapled to another document unrelated to it, with a staple that will pierce the fingers of anyone who tries to remove it" , I’d be very grateful and I’ll stick a link to it here, as that was what inspired this]

Thank you to Chunk for his detective work. [Yes, that is just a gratuitous attempt to crowbar in a Goonies picture. You guys! Hey, you guys!]

Finally – resolution on prior authority!!!! (sort of, but not really)

Our beloved President (and honestly, no sarcasm here, I am delighted!) has finally tackled the Prior Authority issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

In DS & Ors (Children) 2012.     (Am a little sad that I didn’t get to be the one who got to run the case, having expended quite some time on the issue, but delighted that it is finally gripped)

Interestingly, the President takes a different view to me on whether the LSC have law on their side here.

Para 38 For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

If I recall correctly, both Calderdale and Lambeth (the cases I think mean that the Court takes precedence over the LSC internal policies) are both High Court, so the President is not bound by them, and distinguishes them in any event by saying that the Statutory Instrument which sets out how the LSC have capped expert fees is binding.  (In my humble opinion, it would be binding, had the draftsmen remembered to put something into the SI that said that it was binding on the Courts, but such is life).  A closer inspection of this authority shows that Justice Wall specifically refers to Calderdale on the issue of splitting costs, so I am certain that the argument that the Court pushes the LSC around, not vice versa, is, I’m afraid over. And we lost.

The law, as it stands then, is that the LSC DO have the power to bind the Court, and Mr Justice Wall suggests that the remedy is a judicial review if the LSC are acting in a Wednesbury unreasonable way. Presumably, the LA as a body with locus standi, could launch that JR if the LSC decision was delaying a case, because heaven knows the last thing a publicly-funded solicitor who depends on the LSC to process claims and write cheques wants to do is hack off the paymaster.

Here is some very helpful concrete guidance – as much of it places onerous tasks on the Judge/Magistrates if granting approval for an expert, expect to have a harder task over the next few weeks in getting an expert past the Court.

Guidance

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

 

i) The words “the cost thereof is deemed to be a necessary and proper disbursement on [a named individual's] public funding 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 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 that 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.

And then a suggested form of wording for orders (you will note that this is a LOT longer at present, and the President stresses that all of this should be prefaced by a short judgment as to why the expert is required, and at the minimum a clear preamble that sets out why the judicial decision has been made)

Coda

    1. A suggested form of order, depending on the facts of the individual case, could be in the following terms: –

 

a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.

b) This case is exceptional on its facts.

c) The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.

d) The court considers X’s hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.

e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.

f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren’s) timescale(s).

  1. Even such an order (which will need, of course, to be adapted to the facts of the individual case) should be buttressed by reasons as set out in the guidance which I have attempted to give.

There’s a very interesting addendum to the judgment, where the LSC submitted some data to the Court. Here are the figures on applications for prior authorities :-

Nov 2011  – 216

Dec 2011 – 492

Jan 2012 – 784

Feb 2012 – 1140

Mar 2012 – 1840

Apr 2012 1855

I wonder why the numbers spiked so – might it be because the LSC started rejecting claims left right and centre, leaving solicitors holding the baby and being out of pocket and thus deciding never to get burned like that again?

Laughably, they also claim to be processing prior authority applications in between 3 and 8 days.  (Perhaps, if their definition of a Day is the time it takes Jupiter to orbit the sun)

So, where are we?  I suspect, still waiting for the judicial review.  The white flag has been waved by the Courts as to whether they or the LSC are in charge of assessments, so what Justice Wall has done here is set out a clear framework in advance for prior authority applications to be accompanied  by chapter and verse on why the Court has decided that the assessment is necessary and the costs appropriate. That paves the way, should the LSC act capriciously (as if they ever would, quell my scepticism) for a judicial review.

If you’re an Independent Social Worker, this case is really, really bad news, I’m afraid. The Courts are not going to do battle with the LSC in any care case as to the ludicrous £30 per hour cap that was pulled out of thin air. It will have to be a judicial review based on the policy being unreasonable and having been done without an Impact assessment.  (And I think the clock has chimed on the time-limit for such an application – unless the applicant (Nagalro, or BASW presumably) argues that it was unclear until this decision that the intention was to bind the courts, or that social workers doing risk assessments would not get the £63 per hour that the SI suggests)

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