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The war on cut and paste

If you have ever drafted Facts and Reasons for the Magistrate’s Court, or ever seen Facts and Reasons drafted by one of the parties, you are going to want to read this. Likewise if you are a Magistrate, or a legal advisor to magistrates.

 

In 2013, there was a civil case, in which the Judge lifted about 90% of his judgment from the written submissions of one party.

 

Crinion v. IG Markets [2013] EWCA (Civ) 587

http://www.bailii.org/ew/cases/EWCA/Civ/2013/587.html

 

In that case, the Court of Appeal felt that the Judge had (just barely) added enough of his own material to avoid the decision being overturned on appeal, but deprecated the practice [the extracts below are one from each of the Appeal Court judges, just to illustrate how much they didn’t like it]

 

 

Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.

 

Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done.

 

But we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.

 

Since that time, and certainly post Re B-S, I have been waiting for the Courts to rule on the widespread practice that one party (usually the applicant) is asked to draft Facts and Reasons (the equivalent in the Family Proceedings Court to a judgment) which the Magistrates then consider.

 

It didn’t seem to me a practice which could stand. Even where the practice is very transparent, with all parties seeing and having an input into the draft, and it being confined to agreed orders or orders that are “not opposed but not agreed”

 [In case you think I am not being clear enough, I think it was WRONG that Magistrates Court asked Local Authorities to do this and I am GLAD that this High Court case below brings it to a stop]

The High Court looked at this issue in Re NL (A Child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html

 

In this case, the drafting of the Facts and Reasons was even more dubious, since it appears that the draft was sent by the Local Authority to the Legal Advisor and it wasn’t something where there was input or oversight by the other parties.

 

  1. Compilation of the Justices’ Findings of Fact and Reasons
  1. Lastly in relation to the way in which the proceedings were dealt with at the Family Proceedings Court, I should mention the manner in which the Justices’ Findings of Fact and Reasons were compiled.
  1. The 1st November draft within the appeal bundle caused me to question whether the local authority had been involved in its creation. Initially, I was told not. Later, and having taken more detailed instructions, Miss Watson explained that Counsel (other Counsel), rather than the Joint Legal Team, had drafted the entire document.
  1. The draft was sent to the court, by email, at some stage prior to the hearing. It was made available to the parties’ legal representatives, in hard copy, outside court on the morning of 1st November.
  1. The mother’s Solicitor had “an inkling” the document may have been handed out at court by Counsel for the local authority. The mother’s legal team had no input into the draft.
  1. Miss Watson has also discovered that on 1st November at court, Counsel then instructed for the local authority amended the draft to reflect the parties’ positions and included reference to Dr van Rooyen’s report. The amended document was sent electronically to the legal adviser during the hearing and became the perfected ‘Facts and Reasons.’ I had assumed, wrongly, that such minor amendments as there were, had been made by or at the behest of the Justices.
  1. It is suggested on behalf of the local authority and the children’s guardian that it would have been possible, in theory, for the mother’s legal team to have requested alterations to the document. In practice, I entertain doubts as to whether those who represent parents at interim care hearings would have the temerity or, indeed, any proper opportunity to undertake a significant re-draft on the day.
  1. More generally, Miss Watson explained that the Family Proceedings Court expects the local authority to provide draft ‘Facts and Reasons’ for every public law hearing; and that where such a document has not been sent in advance, a request for its production will be made. Miss Watson described a customary practice of such documents being sent electronically; and thus, they may be easily adapted. Over the last 18 months or so, the local expectation – that such drafts will be provided – has become the norm.
  1. The Family Proceedings Court, so I was informed, does not expect or require that such draft documents are circulated to the parties in advance of the hearing. Legal advisers do not routinely inquire as to whether the parties have received them before the hearing begins. According to Miss Watson, whilst local practitioners know about the court’s expectations, none of these practices “sits easily” with the Solicitor members of the Joint Legal Team.
  1. Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.
  1. The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.
    Article 6.1 reads as follows – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
  1. Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.
  1. Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”

  1. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.
  1. I am reassured that whatever has occurred in recent years, it has not always been the case that, nationwide, local authorities have been required to provide draft ‘Facts and Reasons’ documents. I know from past personal experience that diligent legal advisers have provided legal and sometimes proper secretarial assistance to Justices in formulating their Reasons. I have been present whilst such judgments have been compiled.
  1. Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.
  1. The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.

 

Just in case all of that was too long, let’s just look at paragraph 69

 

Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

 

 

 

This judgment may also be of interest to professionals (and parents) for three other matters

 

 

The first is the rapid instruction of an expert (in this case it was Dr Celeste van Rooyen) who was asked by the Local Authority on 31st October 2013 if she could prepare a report and the report was then provided by 5pm that same day, based on reading the papers and a telephone conversation between the expert and the social work manager – the case was in Court the next day.   Underlining is mine for emphasis.

 

  1. The ambit of Dr van Rooyen’s instruction
  1. My reading of the papers prior to the hearing on 28th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother’s abilities to look after NL.
  1. The letter of instruction to Dr van Rooyen invited her to undertake “a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings.” She was asked, insofar as she was able, to provide her view in regards to (the mother’s) history of drug use, the current treatment she’s receiving and her prognosis for abstinence in the future.” The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.
  1. There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].
  1. Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, “I hadn’t because of tight timetable.”
  1. That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen’s report came to be prepared. The letter of instruction is dated 31st October 2013. In the section headed “Timetable,” it is recorded that the local authority’s lead Solicitor understands that Dr van Rooyen was “able to file (her) report by 5pm on Thursday 31st October,” that same day. The first hearing in the Family Proceedings court was scheduled for 1st November.

Dr van Rooyen’s involvement – fundamental flaws

  1. I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen’s involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.
  1. It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].
  1. To my mind, it is quite simply unacceptable for an ‘independent’ expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.

 

The second is the High Court’s investigation into why that expert evidence was obtained in such a way, and the importance that 26 week deadlines don’t lead to unfair practices.  “Justice must never be sacrificed on the altar of speed”    [Hear, bloody hear]

Rationale for the instruction

  1. The reason why the local authority acted as it did, requesting Dr van Rooyen’s assistance in preparation for the 1st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a “Triage Assessment” occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe.

 

  1. Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children) [2013] EWCA Civ 1146 he said – “Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.
  1. More recently, in his ‘View from the President’s Chambers (7)’ entitled “The process of reform, changing cultures” the President reiterated that message saying, “We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”
  1. My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.
  1. Overall, having conducted an extensive review of what happened in the period between NL’s birth and 7th November, I conclude that the mother and NL were unfairly treated; that the evidence justifying their separation was flawed; that the Justices’ decision to separate was wrong because NL’s immediate safety could have been secured by remaining with his mother at [the resource]; and that, accordingly, the interim care order predicated upon continued separation must be set aside.

 

 

The final point of interest is this

 

  1. NL was exactly one week old at the time of the hearing. He had been with his mother throughout his time at hospital. The midwifery reports from [the hospital where he was born] were uniformly positive as to the way in which he was being cared for on all levels by her. The mother’s suggestion had been placement together at [the resource] where there is an abundantly safe and protective environment for a neonate. It has a deservedly high reputation – no one has suggested otherwise. As Dr van Rooyen said in evidence albeit on 7th November, “[It] is excellent.”
  1. The Justices’ first consideration should have been to keep NL together with his mother for the very short interval – 6 days – between the ‘holding’ and contested hearings. That should have been “the default setting”. Nothing within the papers, to my mind, justified immediate separation because of risks to NL’s physical or emotional safety; quite the reverse. I would like to believe that had their attention been drawn to the three propositions identified within Re LA (supra), the Justices’ decision at the first hearing would have been different. There is, after all, an elemental as well as a physiological need to keep mothers and new born babies together wherever possible, so long as the child will not be endangered.

 

(This is nothing new, but it is put so very plainly that it may be a quotation that comes up in future cases)

 

And the remarks made by the Judge about the second contested ICO hearing a week later, where the Magistrates Court seemed to place emphasis on the harm of moving the child from foster carers

 

  1. 7th November hearing
  1. There can be no denying that the outcome of the 1st November hearing paved the way for what happened 6 days later. It is not just that the two Findings of Facts and Reasons documents are strikingly similar – the majority of the paragraphs are identical – as the result, almost certainly, of ‘cutting and pasting.’ It is also that by the time of the second hearing, NL’s move to a foster home on 2nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances “may have an effect upon him. NL is very young and needs to form an attachment to his primary carers.”
  1. I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy the status quo argument as part of the reason for continuing an interim foster placement for a week old infant.
  1. This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

 

 

 

[My thanks to Martin Downs of counsel for his snappy title, which I have been waiting to use for about six months…]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

21 responses

  1. Pingback: The war on cut and paste | Children In Law | Sc...

  2. “Default setting?”

    As disproportionality continues being downsized, this case highlights, at root, the tension between overzealous interventionism and apathy in respecting established family life, both of which are incompatible with a family human rights based approach.

    .

    • This is an example of why there needs to be greater greater transparency in the courts. If was still kept secret no one would know and there would likely be little or no change.

  3. I feel anxious reading this post, that it will lead to experts again being seen in a negative light in respect to the role they can play in Care proceedings. I obviously can’t comment on Dr Van rooyen’s decision to provide an opinion within such a tight timeframe, however I would note that since the Family Justice Review really kicked in, I have seen a huge difference in the scope of expert Instructions.

    For example, in the 15 years prior to the FJR kicking in, I don’t recall ever being asked to comment on the capacity of a parent to care for a child in the long term, without being able to interview the parent, interview the child (if appropriately aged) or if too young for interview, observe the parent with the child at least once as well as reading papers and interviewing relevant professionals.

    Since the FJR, it is more common than not to be explicitly Instructed not to see the parent with the child (even to observe contact), to not be allowed to interview the child (even when they are old enough to be interviewed) and at times to only be allowed to see certain Papers directly relating to that child only, presumably selected by the Court, and to not be allowed to know anything about the other siblings (even if the child lives with them). CAFCASS and the Social Worker clearly continue to have access to all children, all papers and both parents/partners in preparing their reports.

    Again, prior to 2012 (approximately) it was also extremely rare not to be able to have an interview with Father/Partner if being asked to give an opinion on how the relationship between parents impacted on the child/children (normally in situations with serious domestic violence concerns) and again I would always seek to see both ‘halves’ of a couple in Public or Private Law to get a clear picture of the dynamics/protective capacity and capacity to change. Since 2012, it has become common to only be allowed to see the parent whom the children live with (or may return to), so in effect it is not possible to give an independent opinion on the whole picture, even when CAFCASS and the Social worker are interviewing and commenting on both parents.

    I am not at all clear what the changes to the way experts Instructions (when they are Instructed at all) achieves, and whilst it might seem obvious for the expert to raise concerns about types of Instruction which, in effect, prevent an expert from doing their job properly, experience shows that the Court and Parties tend to be highly unlikely to ‘expand’ Instructions which they have agreed upon and equally highly irked when the expert informs them, having completed the report that it is not possible to give a ‘complete’ opinion on an area in which the expert has been refused permission to see Papers and people upon which the Guardian and Social worker are commenting.

    It is a mess, frankly, and as the NHS found out to its cost, focusing on cutting waiting times and not allowing clinicians to be able to justify why they need to run certain services in certain ways for them to actually work, has always been a recipe for disaster in the long term.

    • Yes, that’s a fair point. The fault lies more here with the instructions than the expert. She ought not to have been asked to do this at all, let alone in this way. Given that the case was in Court the next day, and that the report was being sought for use in care proceedings, it ought to have been the Court who determined whether to instruct an expert and the basis for that instruction. Slightly different if the instruction was very distant in time from the Court proceedings, but the day before ? Well, for me the case has moved from pre-proceedings to care proceedings, and the control over the expert rests with the Court.

      [It may be that what we don’t see from the judgment is that the particular expert had reported in detail and thoroughly on this particular mother only a short time before, relating to other children, and that might have been a factor in her agreeing to do this piece of work at such short notice. I still don’t think that makes it right, but it might provide more context as to why anyone even considered it]

      • Ashamed to be British

        Am I being a bit thick here? Or is it still the case that no party can rely on any evidence other than what is in their bundle, once it’s in, there’s nothing more to be added?
        Next question is, doesn’t the other party have a time frame in which to serve that bundle, in order for the other party to read through and defend themselves against it (Art 6) – in this case they would have had little or no time in which to do so, let alone discuss strategy with their MKF if a LIP

        I’m aware this has already been pointed out, but this expert witness really should have declined, or asked for longer and the judge should have adjourned in the interest of fairness.
        I also understand that the child would be in limbo for longer, maybe by months, however it’s surely worth the wait rather than a life changing decision being made forever such as adoption

      • I do not disagree with anything that you say here Sandy. Bouncing an expert witness report at 5pm for a removal hearing the next day is unfair and not right.

  4. The mention of the 26 Wk duration will always be the topic of conversation and in most cases the topic of blame when things go wrong.

    One would have thought, specifically in this case, that the evidence would be overwhelming for the need to take court action from the outset, what is it called, the last resort, or now,”Nothing Else Will Do”

    One would think that if the Local Authority were sure that they would obtain the correct orders with the evidence they possessed then they would not need to be so stead fast in the need for the Expert Opinion.

    Why should we still be seeing that Expert opinions in any field being the one that makes or breaks a case, it is just that, an OPINION.

    Sadly many cases do need that all important Expert Opinion however it is NOT to support the Local Authorities case or any other parties case for that matter, Expert Opinions are to guide the court, and of course PD 25A shows that,

    If I was instructing any Expert and the Expert had informed me that they could report on that day without the need to see the parent or other then one has to question the quality of that Expert, more so it is the duty of the appointed Expert to draw to the courts attention any foreseeable problems, why in this case did the Expert not do that.

    This case would show that the need of the Expert Opinion could be tainted in these care cases, I would hazard a guess that now the Expert in this case has been named, the consequence of such would mean the work will almost dry up for Dr Van Rooyen, who coincidently has been involved in several of my cases over the years.

    If I was an outsider looking into this case I would have determined that the Local Authorities evidence did not meet muster and as such they chose the path to appoint an Expert to provide the vital evidence to support their case, all the while the mother and child are on the merry go round of the family proceedings court.

    The 26 Wk scenario as adequately put by Justice Pauffley should not be a constraint in ensuring justice is seen to be done in the fairest way possible and no party should be disadvantaged by this

  5. Ashamed to be British

    Guardians and ‘expert witnesses’ alike, often take their evidence into court, which is nearly always accepted, without seeing the parent they are about to rip apart, it’s certainly a rarity for them to see the unfortunate parent(s) with the child/ren in question.

    I’ve always wondered how any judge can make a fair judgement on this basis.

    A couple of years ago a parent took a telephone call from the Psychologist chosen by the LA, he asked a few questions which were truthfully answered, the psychologist thanked the parent and hung up, or so he thought, he’d not ended the call properly and the parent heard him turn to the social worker (who the parent was not aware was with the psychologist) and asked “So what do you want me to put in this report”
    Not only is this an absolute disgrace, but the psychologist showed himself for what he was by producing a copy & paste report that mirrored the social workers’ own report, confident that the judge would give a judgement similar to the one above, as this was put into the bundle, the parent relaxed somewhat, however, the judge tore into the parent, declaring that he had breached the psychologists privacy by continuing to listen in to the conversation, then continued on to accept every word the psychologist had written

    We need more judges who will not put up with this rushed copy & paste culture, if professionals are to lazy or don’t have time to produce their own report based on their own findings, they should be forced to decline the extortionate amount of money paid to them in order to do so

    It’s money for old rope

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  7. “Befehl ist Befehl” …….The Nuremberg defense, that was dealt with by the Nuremberg principle IV,

    “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

    and later similarly dealt with in the 1998 Rome statute of the ICC, article 33.

    This “expert” and others that practice similarly at the behest of the LA’s and courts, may not use a physical weapon like a gun or a gas chamber but they still commit crimes against humanity and should be dealt with as criminals. The judiciary is part of our trias politica government and therefore the state, so where a moral choice arises even its orders do not have to be carried out where those orders are genocide or crimes against humanity.

    What are these “experts” ? Humans or drones ?

    This case shows there are still some very rotten apples in the system a year after Professor Jane Ireland’s report.

    I believe this mother has had several children removed before because of her drug and alcohol issues, but people can and do change, the expert should not just rubber stamp a report based on previous circumstances.

    The rest of the issues have partly arisen because of the indolence of the parent’s Lawyers and the fact that they are enmeshed with the system (caused by acting also on instruction of cafcass guardians etc).

  8. Child law practitioner

    Dr van Rooyen is well known to be an ancillary of West Berkshire District Council, who I assume are the Local Authority given the reference to the ‘joint legal team’.

    Experts like her give our Family Justice System a bad name; she is the very embodiment of the ‘smoking gun for hire’ that the System’s critics make reference to, time and time again.

    This blog has rather expertly highlighted a number of the flaws and grey areas in the recent move towards ‘transparency’ but one thing that the move will achieve is that it will finally provide practitioners and parents alike with a window into experts bodies of work. Although the instruction of experts has declined, the increase in the publication of judgments from CJs will – over time – allow us all to see which experts are favoured in each area, up and down the country. Just as of not more importantly, we can then see which ones are praised for their work and which ones are criticised. This really is a fillip for everyone concerned.

    Parents who have never heard of these experts are left to trust their solicitors on these matters. Some solicitors fight for parents, some just come to pick up the FAS cheques. Also, practitioners who are instructed in cases outside of their normal geographical area of practice find themselves in the same boat of not having heard of the expert preferred. We often forget how cliquey practitioners sometimes are in their own geographical areas but you are swiftly reminded of this when you take up an out of town case. You are therefore working blind when the question of expert instruction arises and you are completely reliant on the other solicitors in the case, which usually means the solicitors for the Local Authority and Child(ren) because you don’t even know where to begin looking for the names of the experts known to that Court.

    Now, in time, parents and practitioners will have a resource to refer to, to enable us all to become forewarned on the experts. Hopefully, the days of experts of like van Rooyen being able to lazily profit from our System are numbered, which can only be a good thing for children, the System, parents and justice.

    • Yes, one of the features of the President’s Guidance on transparency will mean that as the published judgments build up, parents will be able to see how an expert has performed in previous cases.

      And you are quite right about doing a case outside your normal area, I have found in all of my moving around the country locuming, that experts who were considered unusable in one region are absolute flavour of the month in others, and good ones never touched on the basis that local people had no experience of it. So, having a transparent resource where people can look up an expert to see some other cases they were in, is helpful.

      Without expressing any views on this particular expert, I would agree that the “gun for hire” concept is awful, unfair and ought to have died a death a long time ago. It can be a bit “Sussex Justices” – even if someone isn’t actually a gun for hire, even the impression that they might be is bad enough.

    • If the new transparency in the Family Court does lead to greater discernment in the choice of experts for cases that will be a positive step, however it seems to me that there is a much wider issue that is being ignored here, which is the criteria applied by the legal profession/CAFCASS/LA in deciding what is a ‘good’ report and what is not, and how those standards differ in different parts of the country.

      Is a report a ‘bad’ report if it contains concepts that some of the Parties don’t fully understand? You could argue it is, but is the same criteria applied to Social work reports including social work ‘jargon’, or indeed legal documents that could have been simplified but are instead heavy with jargon that might be accessible to the lawyers and Judge but not professionals without a legal training or parents?

      If the expert is used regularly by the LA does this mean they are, by default, incapable of giving parents a fair hearing or are they just used in cases where the evidence for the LA’s case is so solid that the assessment, no matter how meticulous, will ‘agree’ with the LA’s view.

      If, conversely, the expert is regularly used by parent’s Solicitors (who it appears to me now have the least chance of securing an expert assessments under the current arrangements), in cases where there may well be concerns about the case management by the LA and sometimes CAFCASS, is it likely that the firms used by Guardians and LA themselves are going to regard as ‘good’ an expert who may have raised awkward (if completely valid) points about their case management? Not very, in my experience.

      I fully accept that the expert’s job is to answer the Instructed questions, ideally in as concise a way as is possible. But we are (as a previous post points out) not robots and our professional training and skill set is not that of a lawyer or social worker and so judging us using your own professional criteria as a baseline misses the point. If questions are asked about the mental health (for example) of the parent or child, then how does a non mental health trained professional know whether the assessment and report they receive is the ‘best’ they could do for their client or whether it is out of date and mediocre (but happened to be quick, cheap and is only 10 pages long?).

      It might seem an obvious point however but the current changes mean that in many Courts there will be Guardians and Social Workers who have no mental health qualifications being asked to comment on the mental health status of the parents and children in Care Proceedings, including making prognosis about future harm, risk and capacity to engage in treatment and I have been told by many family lawyers that they strongly feel that the changes to expert instruction mean that Social workers are regularly having to go beyond their remit in commenting on aspects of psychological functioning that they have no training or experience in.

      If this is true, then surely picking the ‘right’ expert pales into insignificance as an issue, as the new system is regularly expecting the existing Court professionals to go beyond their remit and comment on areas they are not trained in and presumably be willing to be named in Judgments as having done so, even when it is probable they would have no choice in what areas of a case they are now expected to assess and comment on (experts being seen as largely ‘unnecessary’). Child Law Practitioner appears to believe in the current ‘system’ as just to parents, as long as it is stripped of lazy profiteering experts. In my view, it is deeply unjust to allow families and children with (frequently) complex psychological, developmental, attachment difficulties, histories or trauma and abuse, who may have histories of substance misuse, offending, abusive relationship histories – in short children and families whom professional mental health specialists have the skills and expertise to assess and treat and do so every day in clinical practice, without giving them the chance to be properly assessed by those professionals qualified to do so.

      If you want to know what makes a good ‘expert’, and what makes a good expert report, then the ‘system’ needs to ask those ‘experts’ who are highly respected and eminent in their field for their professional advice – as happened with the ‘The expert’s Court report on contact and domestic violence’ (2000) by Sturge and Glaser at the request of the Official Solicitor and I believe Court of Appeal. Why can’t there be similar ‘benchmarks’ set for other key issues that frequently crop up in Public law – that would seem to be something that would potentially benefit the whole ‘system’.

      • Ashamed to be British

        This is where (however wrong this may be) parents must take ownership of what happens and with who
        NEVER would I allow any parent just accept an expert witness’ report or even allow them near them without doing my research on them first
        I start from the beginning, solicitors are grilled as to how many cases they have won, whether they have won on behalf of the LA or the parents and child, who they use as their barrister and I get a CV from them, if they’ve so much as touched a LA case, they don’t get employed, simple.
        As for expert witnesses they are scrutinised, again they are asked for their CV and their area of expertise along with a million other questions, if they come up with the slightest dodgy dealings, that is my argument in court, using the infamous Dr Hibbert case

        Parents, MKF’s, solicitors, anyone involved in the case must be more than one step ahead and research who is going to be swaying decisions one way or the other, know thy enemy

      • I’m amazed you can find good barristers who haven’t ever taken instructions from local authorities.

        I practice in a big city (but not in London) and I can only think of one good barrister who doesn’t ever seem to do LA work. Most of the rest that don’t are all-rounders who split their time between different practice areas. You may find you are condemning whoever your parents are to accepting the adequate instead of the excellent.

        While I’m sure it seems counter-intuitive, it is overwhelmingly in a barrister’s commercial interests to be robust when they get a ‘parent-brief’ against a local authority they regularly act for. First, because social workers don’t pick counsel (the local authority solicitor does that). Second, because you’re in front of at least one solicitor (and usually more) who might give you work if they are impressed. Third, because the moment anyone begins to question your independence or thinks you put your personal interests above your client then you can pretty much say goodbye to your career. Finally, because any roughing-up you give a social worker in cross-examination can almost always be fixed with a smile and a cup of tea, if needs be, down the line.

      • Very good comments Lisa, lots of stuff to chew over there. As we have discussed a few times, I think experts have carried the can and got the blame for a state of affairs that became “everyone in care proceedings just wants an expert to tell them what to do” regardless of whether one was genuinely needed. In the backlash to that (and it did need to be curtailed), we have ended up lurching from “only experts count” to “we never need experts” (this is fairly symptomatic of family justice generally – we lurch from one pole to another).

        These would be my quick keywords for determining if an expert report is good

        1. Above everything, does it tell me something about the family that I didn’t already know, or that common sense and experience couldn’t have worked out (i.e does it actually bring EXPERTISE to bear?)
        2. Is it FAIR?
        3. Is it REASONED? (I don’t mind that much if an expert view is counter to what I might have expected, if I can follow the chain of reasoning and understand how and why)
        4. Is it ON TIME ? (we simply have no margin for error at all now. If an expert report is 5 days late, the timetable is destroyed)
        5. Did it ANSWER the questions (ideally with some precision, even if that precision is to say “We can’t know for certain, but a reasonable hypothesis is that this will work) and ideally without waffle (and yes, this is often not the experts fault because the questions are not drawn up by a Judge who says “This is what I need the expert to help with” but by four lawyers wrangling over words and emphasis and trying to safeguard a position – language not as a window into the mind but a curtain to draw across it.
        6. Does it show UNDERSTANDING of the decisions that the Court has to make (the basic principles, and the timescales)

  9. Child law practitioner

    @suess

    I know a local Local Authority who use a psychologist in their pre-proceedings work who no sane representative for a parent would ever allow near a case in proceedings.

    @Lrw

    You raised a lot of interesting points but let me make it perfectly clear that I most certainly don’t consider the current system to be ‘just’.

    I think we know what a good report is because it addresses the issues and moves the parties and Court closer to making an informed final decisiont; I don’t think it is all that arcane. If there are things we don’t understand then the Family Procedure Rules and Practice. Directions allow us to send clarification questions to the expert. You can also ask the expert to provide copies of any research papers et al that they rely upon if some concepts are unclear. A colleague of mine was involved in a case recently where the expert report was received and half way through the report, the names of another family appeared. Basically, the expert had done a bit of a cut and paste job and the lead solicitor hadn’t read the report before sending it out. I am sure every practitioner can tell you they know of this happening if it has not already happened on a case they have been involved. We therefore know bad reports when we see them too; I suspect it is rarely is it because ‘concepts’ are not properly understood.

    @Jim Nately

    You are certainly right about how roughing up someone can be a gateway to a future professional relationship. I was instructed on a case where I was for one parent and friend of mine (who is a local practitioner) was instructed for the other parent. He bore a hole into the GAL’s evidence at a contested hearing and a few weeks later, he received his first ever instruction from her to represent children in another case. She is now a regular instructor of his.

    • @Child Law practitioner
      I apologise if my comment sounded somewhat patronising in respect of knowing what a good report is from an expert witness. It wasn’t meant to read like that but what I did mean to highlight was the fact that it is not easy to know, when you are dealing with potentially complicated clinical reasoning in a report, whether it is of the standard that it should be, if you don’t come from that professional background. Care Proceedings often involve families with extremely complex and multi-faceted mental health, psychological, learning and relationship difficulties and in no other area of ‘public’ services would it be tolerated that decisions be made about huge areas of their future without assessment by a number of qualified mental health professionals (most frequently an entire trained team involving differently qualified mental health professionals such as Psychiatrists, Psychologists, mental health Social workers, nurses, occupational therapists and therapists specialising in different treatment models).

      The consequences of not being clear about certain aspects of ‘who should assess what’ and ‘what makes a good report’ can also be massive. For example, I was involved in an expert assessment where a ‘risk assessor’ (expert witness) also did a ‘parenting assessment’. The risk assessor, whose organisation had been frequently used and undoubtedly still is, concluded that the client we were both assessing was, in effect, being discriminated against because of their ‘learning disability’ by not being communicated with in proper terms. The risk assessor indicated that the client did not have mental health problems and to suggest they did was indicative of the poor understanding and assessment of the client by the LA.

      I assessed the same client, found them to be suffering from very distressing psychotic delusions and hallucinations at interview and also took note of three bundles of old psychiatric records dating from adolescence, suggesting a complex presentation which included psychosis but also wider vulnerability to general life stresses based on the client’s own history of trauma. The client had no ‘diagnosis; of learning disability (a more stringent test than just undertaking a cognitive assessment and recording an IQ of 70 or below as frequently occurs) and assessing the relative impact of any cognitive issues whilst they were so distressed and psychotic would have given a misleading picture.

      That is one example and I could give many many more (including a frightening large proportion of private law assessments where mental health symptoms which posed a significant risk to the child had been completely missed by Social Services and CAFCASS due to the complicated nature of the mental health presentation) primarily in relation to cases where ‘mental health’ is assessed by non mental health professionals such as case holding social workers and even expert risk assessors who do not have specific mental health training.

      A further important point to consider is that the new trend for seeking ‘reports’ from treating Psychiatrists, Mental Health Nurses and so on (instead of independently Instructed, Psychologists or Psychiatrists who are used to assessing within a child protection framework of the child’s best interests being paramount) is that the treating relationship with the client is primary and treating clinicians would be under no obligation to ask a raft of child protection related questions of the client, unless the client has volunteered some information that raises child protection concerns. I have known treating Psychiatrists who did not even know the client had a child with whom they had contact as the client had opted not to mention it and strictly speaking it was not relevant to their Psychiatric care.

      I find the whole situation extremely concerning.

    • Yes, the cut and paste stuff is still, dreadfully prevalent. And you don’t need to be a psychologist to spot that someone who has cut and pasted from another report is not giving the case (and the family) the attention and care that it (and they) deserve.

  10. Child law practitioner

    @Lrw

    The focus has very much shifted over the last couple of years but what I am finding that where you have a parent that is a serious option or where the child is placed at home already the the court is more amenable to permitting expert instructions, presumably because the information will help get a kid home /keep them there. In these cases, it is more important that ever to make sure the right expert is instructed. I didn’t think you were being condescending – I don’t think I am always right or that the way we work is being reproach. I have found your posts very helpful.

    On the other hand, the social work theory tells us that that the older the child is at the time of placement, the harder it is for them to find permanency. There is a balance to be weighed.

    I am told by a fellow practitioner that Munby P has told practitioners that the 26 week track and change in the criteria for expert instruction has had the desired effect and the government have noted this ‘improvement’ (from their perspective). As a result, the judicial powers that be are now working on guidance to set out the grounds for extensions to the 26 weeks. I am not sure whether this is going to represent another swing in the pendulum but interesting times ahead.

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