Gosh, this is an insanely bloggy week. Some consultation documents for new family law practice directions have flitted across my inbox today. I read them, so you don’t have to…
There are three big ones
One on experts pre-proceedings, which is obviously going to become more and more pertinent as the Government move the goalposts to artificially reduce the timescales for Court proceedings , sorry ‘shift the assessment process to pre-proceedings’. It seems to me eminently sensible – there should be a proper LOI, documents shown to the expert should be particularised, and the expert should be told that they are to treat themselves and the assessment in exactly the same way as if it were being done within proceedings.
One on the Official Solicitor, which is jawdropping.
1.1 The court will investigate as soon as possible any issue as to whether an adult party or intended party to family proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. An adult who lacks capacity to act as a party to the proceedings is a protected party and must have a litigation friend to conduct the proceedings on their behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.
1.2 Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role in the proceedings.
We all know that this has been the direction of travel for the Official Solicitor for some time – they simply can’t cope with the volume of cases that have come their way. But this is a recognition in a Practice Direction that for most cases, a person lacking capacity will have to instruct solicitors through a friend or member of their family.
No prospect for difficulties there. There’s never anything massively sensitive within care proceedings about an adult that might not be appropriate to share with their family member. There’s never any conflict between family members and any shifting allegiances or falling out. And there’s never any conflict of interest between say a mother who wants to fight for her child, and the grandmother who is now instructing the mother’s representatives but who actually wants the child to live with her (grandmother) rather than the mother.
I can see that in some quarters, John Hemming MP for one, it might be thought desirable to take the Official Solicitor out of the picture, and have the family help the parent to give instructions to a solicitor, rather than have some remote figure of the State make those decisions. I have some sympathy with that, and think that it is a perfectly legitimate subject for debate and if it is after scrutiny found to be BETTER to have the family do it than the State, then make the change.
But what’s happening here is a dramatic shift in public policy from “where a person is incapable of instructing a solicitor, someone independent should represent their best interests” to “anyone suitable in the family can instruct a solicitor on the parents behalf”, not as a result of debate, or research, or analysis, but because the current workload is too much.
Just as we massively scaled down the role of Guardians because CAFCASS was overstretched (and look what that did – ushered in an era of getting three or four experts on every case, delaying and obfuscating and costing the country), we’re making the same error here. Instead of properly resourcing the Official Solicitor, we’re just abandoning the principle.
I am mystified as to what a parent’s representative is supposed to do, faced with a capacity certificate saying the parent can’t give instructions, and two competing people who want to be the litigation friend. The solicitor can’t chose, the client can’t chose. How do you resolve that? What if the papers you’ve seen show that the person being put forward as the litigation friend failed to protect the client as a child and is largely responsible for the mess the client now finds themselves in as an adult?
The third one is on the instruction of experts within proceedings. Everyone follows the current practice direction on experts slavishly, as we know, so a fresh one is bound to fix any problems.
Here’s the gist of it – try to go for single jointly agreed experts rather than going off to get one each, as if we were in 1980s civil litigation.
Well, we already do. Ah, but now they have an acronym SJE (Single Joint Expert) so that is going to make all the difference.
The Practice Direction does clarify that telling a prospective expert something at all about the case so that they can (a) tell you whether it is the sort of thing they can do (b) when they can do it by and (c) how much they would like to be paid for it, knowing full well that the estimate they give is subject to the whim of the LSC, is definitely not a contempt of Court.
[That is of course, helpful – but given that the Practice Direction is not in force yet, raises the unfortunate spectre that if it is necessary to have a change in law to make sure that doing that WON’T be a contempt of court in the future, that it sort of is now?]
And then what will be necessary in the application for an expert – underlining is mine.
an application or the court’s permission to call an expert or put in evidence an expert’s report, for an expert to be instructed or for the child to be medically or psychiatrically examined or otherwise assessed for the purpose of obtaining expert evidence for use in the proceedings must state-—
(a) the discipline, qualifications and expertise of the expert (by way of C.V. where possible);
(b) the expert’s availability to undertake the work;
(c) the timetable for the report;
(d) the responsibility for instruction;
(e) whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);
(f) why the expert evidence proposed cannot properlybe given by an officer of the service, Welsh family proceedings officer or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings;
(g) the likely cost of the report on an hourly or other charging basis;
(h) the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid; and, if applicable, whether public funding has been approved.
And then what is to go into the order – note that it is going to be necessary to append the questions so that the Court can determine that they are kept to a manageable number and are clear and focussed. That’s good news for solicitors, since it means an end to the interminable tedium of back and forth emailing about questions and the questions being settled by counsel at Court.
I think that this is a GOOD thing. It will mean that CMC’s will take substantially more court time than previously, as the questions will have to be drafted before an order can be lodged.
The terms of the draft order to be attached to the application for the court’s permission
3.8 FPR 25.7 provides that a draft of the order giving the court’s permission 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.
I think the two on experts are fine, and the one on the representation of vulnerable adults who lack capacity is awful.
It looks as though the plan is for these Practice Directions to come in some time before the end of this year. Sadly, the consultation process is over before I ever saw the documents, such is life. I doubt my snarky mutterings would have made any difference anyway.
And in the words of Meat Loaf – two out of three ain’t bad.