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Gender of ISW

This is a Court of Appeal decision arising out of a case management decision in private law proceedings. The father appealed a case management decision to instruct a female ISW, on the basis that it was a breach of his human rights – notably his article 9 rights to freedom of religious expression.

N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 (06 December 2022)

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1588.html

I do slightly wonder why permission to appeal was given here (it is EXTREMELY hard to successfully appeal a case management decision ) , particularly given that the appeal process meant that the final hearing listed in the case had to be adjourned but the case does throw up some interesting elements.

The parents were both raised as members of the Hassidic Haredi Orthodox Jewish community, the father in the United States of America, the mother in England. In 2013, they underwent an arranged marriage in Jerusalem and thereafter lived together in Israel. In November 2014, the mother gave birth to A.

Within the proceedings, the mother was making complaint that some of the father’s religious practices due to his strict religious observance was making her home life intolerable. Within her complaint she raised that the father showed discomfort in the presence of women, including sometimes herself.

The Court was asked to approve the instruction of an expert to undertake an assessment of the family. The father had originally put forward a female ISW with a background in undertaking assessments of people within the orthodox Jewish faith. The application only put forward one ISW. The mother opposed this because she said :-

In her position statement, the mother’s counsel objected to the appointment of Ms Leifer, stating:
“The mother is concerned that Ms Leifer is associated with Ezer lyoldos, a Charedi organisation which works strictly within the Charedi community. This raises concern that she may be a biased choice. The Part 25 application does not propose any other expert which is unusual. The mother would prefer Cafcass to carry out the report as they are more likely to offer a neutral standpoint.”

The Judge agreed that enquiries should be made of CAFCASS to see if they had any workers with experience of carrying out work within the Orthodox Jewish community.

That didn’t really come to anything and thus both parents put forward alternative ISW experts. The father was putting forward a man, and the mother two women.

The Court decided to instruct one of the female experts.

The father appealed on the basis that :-

the order permitting the instruction of a female social worker is an infringement of his human rights.

Within the appeal, the father asserted that the Court’s case management decision was an infringement of both his article 6 right to fair hearing and article 9 right to freedom of religion and right to manifest his religious beliefs.

The Court of Appeal considered the issues in the case and broadly determined that the process that the trial Judge had followed to reach the decision was appropriate. They took into account that no evidence in relation to article 9 had been placed before the Court at first instance and that it had been raised only in submissions – and that certain steps by the father (not least the initial identification of a female ISW) undermined an assertion that only a male ISW could undertake the work without infringing father’s article 9 rights.

There was nothing in any document filed in the proceedings before the hearing on 20 July to suggest that the father objected to the instruction of a female independent social worker on the grounds that such an appointment would compromise his ability to engage in the proceedings due to his beliefs or that it would therefore be a breach of his right to a fair hearing under Article 6 and his right to manifest his religious beliefs under Article 9. It was only in oral argument before the judge that the father’s counsel suggested that given the father’s beliefs the appointment of a woman would be a breach of his Article 6 rights. This assertion was unsupported by any evidence filed by the father and undermined by a number of steps taken on his behalf in the course of the proceedings. In those circumstances, the judge was entitled to reject it.
In these circumstances it is not necessary to say whether it could ever be right to specify an expert of a particular gender. I do not, however, rule out the possibility that such an order could be justifi
ed. As ever, all will depend on the circumstances. Justice requires the court to adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions. It is, however, imperative that any application that the expert instructed be of one specified gender must be clearly explained and fully supported by evidence demonstrating why such a stipulation should be included.

King LJ in her judgment set out the Court’s powers to take creative steps to assist vulnerable persons in ensuring that their evidence can be given as fairly as possible and drew the parallel that the same can apply to assessments to be carried out.

I agree that the appeal should be dismissed for the reasons given by Baker LJ and Dingemans LJ. I would only add a little about the extensive case management powers available to judges which allow them to conduct proceedings in such a way as to give proper respect to the views and/or beliefs of those who appear before them, whilst at the same time ensuring that justice is achieved.
The well-known and well established ‘overriding objective’, found at FPR 2010 r.1.(1) is the procedural code designed to enable the court to deal with cases justly, having regard to any welfare issues involved.
The balance of the rule amplifies the proper approach to be adopted in order to achieve the overriding objective. This includes at FPR r.1.4(1) the requirement that the court “must further the overriding objective by actively managing cases”. The rule goes on at FPR 1.4(2) to set out 13 matters of active management which include at FPR r.1.4(2)(5) “controlling the use of experts” and at FPR 1.4(3) a total of 16 examples of the court’s case management powers which are in addition to those given by virtue of any specific enactment.
It is against the backdrop of these extensive powers of case management that, as noted by Baker LJ at paragraph 37, the appeal courts have repeatedly emphasised their reluctance to interfere with case management decisions made by a judge at first instance.
Those who drafted the Children Act 1989, and the judges at all levels who have sought to interpret it, have been conscious that in order to achieve the best possible outcome for children, whether in private or public proceedings, their parents and carers must be placed in a position so as to enable them to give their best evidence.
Statutory examples include s98(2) Children Act 1989 which provides for a statement or admission made in care proceedings not to be admissible in evidence in proceedings for an offence other than perjury. In Re X (Disclosure of Evidence) [2001] 2 FLR 440, Munby J, in that context, emphasised that the interests of a child are served by encouraging frankness and the importance of encouraging people to tell the truth in cases concerning children.
A further, but very different, example is the use of intermediaries and of physical special measures (screens, separate entrances and the like) designed to enable those who are vulnerable or victims of domestic abuse to attend court and to give their best evidence. The FPR r.3A.4 and r 3A.5 specifically require a court to consider “whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability”.
In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (para 36), Baroness Hale referred to the flexibility inherent in family proceedings and said that “The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way that best enables the court to assess its reliability”.
In Re S (Practice: Muslim Women Giving Evidence), [2006] EWHC 3743 (Fam), [2007] 2 FLR 461, Macur J made arrangements by way of screens and the ingenious use of a large umbrella, so that she could see the witness, but that the litigant’s male counsel would not be able to see his lay client. In this way the Muslim woman litigant, who was accustomed to wearing the veil, was able to remove her veil whilst giving oral evidence. Macur J stressed the importance of witnesses in family cases being able to present their evidence to the satisfaction of the court. Macur J however also sounded a note of caution, saying that “Each case must obviously be looked at in its own circumstances, and the court must be alert to any opportunistic attempt to derail proceedings”.
The need to obtain the best possible evidence applies equally to that part of proceedings which takes place before the hearing, whether in the form of assessments or the commissioning of expert’s reports. The court has at its disposal the raft of case management powers referred to above which will enable it to find creative solutions to any difficulties which may be thrown up as Macur J did in Re S and as did the appellant in the present case. The court was informed that the appellant had used an intermediary and a telephone, without a video link, in order to enable him to give instructions and to take advice from his female solicitor.
As highlighted by both Baker LJ and Dingemans LJ the court will not however be in a position to utilise these case management powers in order to identify a way around a potential problem unless and until the problem in question has been properly identified, put before the court and where necessary, evidence adduced in relation to the same.

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

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