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Experts and fairness

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

 

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.

 

As the Court of Appeal said

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

 

Some very quick practice points:-

 

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

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

 

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

 

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

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

 

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

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

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

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

 

AND

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

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

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

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

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

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

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

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

 

NEW

5. Protection for litigants in person

 

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

 

 

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

 

  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

 

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About suesspiciousminds

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

7 responses

  1. Jo Delahunty QC

    Thanks for this alert. Really timely

  2. Reblogged this on | truthaholics and commented:
    Progressive judgments are always welcome as they further justice instead of blocking it at taxpayers expense. The heydays of the assessment industry are truly over. What then of specific instances where distressed father’s counsel unilaterally requests psychological assessments on his own client instead of enforcing defined contact orders and penal notices against an unrepresented implacably hostile mother who defies them?

  3. Experts & Fairness,really, there is no fairness ,in an Expert taking at face value a liar’s word when asked do you have a criminal record? My ex,said “NO” !this was to a Forensic Police Psychiatrist ,prone to being previously warned by the GMC for writing reports on another parent without first meeting the parent.How much an hour to the taxpayer?
    I had 3 experts, the 2nd Expert said never seen such a Genuine parent ! Your having a laugh, I was only to read the Ex’s CRB check during the course of the court proceedings.It spanned 10 years of violent relegated crime, with medical notes seeking Prozac of his doctor.
    These experts I was to go on an read every single mother lost to either a deadbeat dad, or in another case a father who had an IQ similar to a 14 year old child.
    Cafcass ,an the Experts would rather these parents get custody.
    AS for taking an oath, why don’t the EW’s take an oath, not to waste taxpayers money on bogus reports being written for thousands of pounds, or in our case this EW child Psych ,does not travel, so makes a sick child with cancer treatment come to her,at wait for it £150 an hour. I later on found the only photo of this so called eminent EW which was posted online an is not for copying or sharing.how paranoid is that.
    The next expert said do not give out his address,a PO BOX number an he charged £5,980 for one report done on me for court.Yes I read about the other mother who lost to this expert, to her ex,an should never have been in supervised contact either, but was.
    Contact Centre Contact,they can’t stop you photographing your child,I did, an exposed the Ex social worker abusing us in her private CC,more taxpayers waste of money too.
    Time to face it,your trials by experts are over, an more LIPs sworen in or not,it only works ,IF WE ALL TELL THE TRUTH! So lets keep the B….D’s HONEST , these courts are corrupt ,with legal bullies in wigs ,with Pyshcs Pyschiatrically abusing parents, an as I said before, these EW’s want you to visit only them at heir private clinics.They want paying as well, as the legals have already paid them out of legal funding,an they want more money ,only you have to pay,as the LA won’t pay, an the GP won’t pay either.

    Finally, what a media journalist can write about your Ex’s son going to prison for causing brain damage to someone, is what is legally defined as not violent , but hostile ?
    So explain that! Criminal court proceedings,concerning criminal convictions ,are simple interpreted as hostility towards the father, or his family.
    You can’t win,if you stay, or leave your violent ex you can’t win.

    • Ashamed to be British

      I truly understand your frustration.

      I’ve recently dealt with a PD25 application, but, in this case the parent was afforded the luxury of being able to choose anyone in the world and bring the CV back to the court for consideration, the independant had a fabulous CV, probably one of the best I’ve ever seen, but the parent made the mistake of choosing an expert who is fabulous in an entirely different field to the matter in hand, therefore it was agreed the expert chosen by the LA was more suitable as their CV was excellent in the field of the matter in hand.

      It pays to listen, research and leave no stone unturned when everything depends on it.

      • I hear you,loud an clear.All the parties in our case got to say,One expert was dismissed, in favour of these 3 EW’s.
        My EW’s were cherry picked,I back tracked,looked at more of the paperwork.There was one expert who the solicitors wrote to another firm,asking when she would be finished on the job.All were trauma experts.
        I have never needed to have counselling,prior to this case,an never met shrinks, or a Psychologist.I said this.If they done these reports on a young man, which as you can see I am not a man, he most likely would have gone home an hung himself.
        This not being the case with me.I had a lot of support online, an off line at the time,none of it paid for I might add.
        Did you know this?
        You can take a witness with you to these Psych report appointments.I read this in a case of the domestic violence victim who fire balled her evil husband “PROVOKED” the book an film.
        No body tells you this, do they?
        My Psychologist ticked an filled in a questionnaire ,as I could not do this,an most of the yes no questions,are a score.This means your F…d either way,as a yes, or no, is a score .I scored high,as I am bright,most say clever, I should have gone home to bed,as I was ill.I had Pneumonia ,with a suspected caviating mass on a lobe.Which means I missed 7 appointments to go to see a chest consultant at my local hospital.
        This lot,an I mean these professionals, had access to my medical notes.They were more I terested in setting me up for court.It had to be something or other,as you would never be able to say I harmed, or neglected my child.
        So whilst they had me running to meetings in SS offices, an rushing most important back to hospitals, they had barred me out of with court orders for emergency blood transfusions for my son,I had a suspected malignancy or shadow on an X-ray that needed urgent seeing to.
        The out come from Police Forensic, an Child PSYCH who I guess her CV is made up to,was not to have the slightest clue about general medicine , or later on Gastro,as they got stuck into a chronic condition I have,which requires regular blood tests,an communication with hospitals. this lot, twisted facts,so far the courts had me ruled out as a carer.
        Like I said.I walked away,stay or go along with these barm pot experts,you can’t win.

  4. Pingback: Experts and fairness | Children In Law | Scoop...

  5. Ashamed to be british,want to see my medical notes? I can prove with paperwork what I have wrote here.I got told your not getting taxi fare from a social worker, get the bus!
    I never missed any appointments.
    These experts can’t prove anything.Can they ?
    An more important,after the final hearing who will go against the reports?

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