![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (A Child), Re [2015] EWCA Civ 539 (10 June 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html Cite as: [2015] EWCA Civ 539 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM The Family Court at Canterbury sitting at Medway
His Honour Judge Scarratt
ME14P00206
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE ELIAS
and
LORD JUSTICE RYDER
In the Matter of C (A Child) (Procedural Requirements of a part 25 Application)
____________________
A Father |
Appellant |
|
- and - |
||
A Mother |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Lydia Slee (instructed by Boys and Maughan Solicitors) for the Respondent
Hearing date: 7 May 2015
____________________
Crown Copyright ©
Lord Justice Ryder:
"Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings"
The rules provide a comprehensive procedural code for the regulation of expert evidence during case management of both private and public children cases.
"1. The matter is to be listed on 30th January 2015 at 2pm for a Review Hearing at the Family Court sitting at Dover. The parties are directed to attend at least one hour beforehand.
1. The Father shall submit to a full psychological assessment and the following consequential directions apply:
a) The expert shall be Court accredited
b) The identity of the expert and letter of instruction shall be agreed within 7 days and in the absence of an agreement shall be nominated/approved by the court
c) The report shall be filed and served by 4pm on 23rd January 2015
d) The costs of the said report shall be borne equally between the parties, the court deeming that the costs are a necessary and reasonable disbursement
2. The parties do not have permission to file and serve any other evidence/documentation pending the next hearing.
3. The CAFCASS officer shall file and serve copies of the observation records from Core Children's Services.
4. The Father shall continue to spend time with the child at the L2 supervised contact centre at Core Children's services on alternate weeks and send indirect contact in accordance with the previous order. The Father is not permitted to send photographs to the child.
5. Costs in the application."
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 ".
" ..my view is that [the mother] is being rather hypercritical of that contact. It was actually rather good. Criticisms for hugging a child sways dangerously into cultural expectations in the UK as opposed to Serbia and so on. I have never heard in court someone being criticised for hugging their child who they have not seen in some time. So, I think that is frankly unfair. [ ]
It is not a good environment for him [the father] but there is some evidence that he can focus on his child's needs when it comes to actually presenting the child with [inaudible] directly. [ ] Frankly, it is not clear to me that a psychological assessment will be helpful. You have a letter from the GP. I am not sure that there is a mental health problem here.
[ ] I think I am probably an agnostic on the point, sir, in the sense that while I think that an expert witness may very well give us some depth of understanding, I am not sure whether it is going to help us very much to progress the issues because I suspect that what is really effectively needed is some level of concrete evidence that 101 issues are going to be put to one side for the sake of [the child] and that can be sustained".
"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]".
"25.4 Control of expert evidence in proceedings other than children proceedings
(1) This rule applies to proceedings other than children proceedings.
(2) A person may not without the permission of the court put expert evidence (in any form) before the court.
(3) The court may give permission as mentioned in paragraph (2) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings."
13. Control of expert evidence, and of assessments, in children proceedings
(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.
(2) Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.
(3) A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposed of the provision of expert evidence in children proceedings.
(4) Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible.
(5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.
(6) The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.
(7) When deciding whether to give permission as mentioned is subsection (1), (3) or (5) the court is to have regard in particular to
a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,
b) the issues to which the expert evidence would relate,
c) the questions which the court would require the expert to answer,
d) what other expert evidence is available (whether obtained before or after the start of proceedings),
e) whether evidence could be given by another person on the matters on which the expert would give evidence,
f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,
g) the cost of the expert evidence, and
h) any matters prescribed by Family Procedure rules."
[ .]
25.5 Further provisions about the court's power to restrict expert evidence
(1) When deciding whether to give permission as mentioned in section 13(1), (3) or (5) of the 2014 Act or to give a direction under 38(6) of the 1989 Act in children proceedings, the court is to have regard in particular to any failure to comply with rule 25.6 or any direction of the court about expert evidence.
(1A) The matter referred to in paragraph (1) is a prescribed matter for the purposes of section 13(7)(h) of the 2014 Act and section 38(7B) of the 1989 Act.
(2) When deciding whether to give permission as mentioned in rule 25.4(1) in proceedings other than children proceedings, the court is to have regard in particular to
(a) the issues to which the expert evidence would relate;
(b) the questions which the court would require the expert to answer;
(c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;
(d) any failure to comply with rule 25.6 or any direction of the court about expert evidence; and
(e) the cost of the expert evidence.
25.6 When to apply for the court's permission
Unless the court directs otherwise, parties must apply for the court's permission as mentioned in section 13(1), (3) or (5) of the 2014 Act or rule 25.4(2) as soon as possible and
a) in Part 4 proceedings referred to in rule 12.2 and in so far as practicable other public law proceedings referred to in that rule, no later than a Case Management Hearing;
b) in private law proceedings referred to in rule 12.2, no later than the First Hearing Dispute Resolution Appointment;
c) in adoption proceedings and placement proceedings, no later than the first directions hearing;
d) in proceedings for a financial remedy, no later than the first appointment; and
e) in a defended case referred to in rule 7.1(3), no later than any Case Management hearing directed by the court under rule 7.20.
25.7 What an application notice requesting the court's permission must include
(1) part 18 applies to an application for the court's permission as mentioned in section 13(1), (3) or (5) of the 2014 Act or rule 25.4(2).
(2) in any proceedings
(a) the application notice requesting the court's permission as mentioned in section 13(1), (3) or (5) of the 2014 Act or rule 25.4(2) must state
(i) the field in which the expert evidence is required;
(ii) where practicable, the name of the proposed expert;
(iii) the issues to which the expert evidence is to relate;
(iv) whether the expert evidence could be obtained from a single joint expert;
(v) the other matters set out in Practice Direction 25C or 25D, as the case may be; and
(b) a draft of the order sought is to be attached to the application notice requesting the court's permission and that draft order must set out the matters specified in Practice Direction 25(C) or 25(D), as the case may be.
(3) In children proceedings, an application notice requesting the court's permission as mentioned in section 13(1), (3) or (5) of the 2014 Act must, in addition to the matters specified in paragraph (2)(a), state the questions which the expert is to be required to answer.
"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.
"3. The short answer is that 'necessary' means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not lease because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence. If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather difference context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable." In my judgment, that is the meaning, the connotation, the word 'necessary' has in rule 25.1.
And at [6] he re-iterated the guidance given in Re TG
"6. Inevitably there will be occasions when this court does nonetheless have to interfere with a case management decision. Such cases are few in number, not least when contrasted with the very large number of case management decisions being made, day in day out, by judges in family cases. This is as it ought to be. It shows the system working as it should. Recent examples include Re B (A Child) [2012] EWCA Civ 1742 and Re G-C (A Child) [2013] EWCA Civ 301. Neither of these cases lays down any new principles. Each is simply an application of well-established principles to the facts of the particular case. So too was Re F (A Child) [2013] EWCA Civ 656, where this court refused permission to appeal from a case management decision of a judge who had refused to direct the appointment of an expert in circumstances where all the parties were agreed that there should be an expert report. The principles to be applied are those set out in Re TG."
"45. In all the circumstances of this case, therefore, I feel able to offer the following guidance:-
i) The words "the cost thereof is deemed to be a necessary and proper disbursement on {a named individual's] public finding certificate" (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind with the LSC or, for that matter anybody else. In addition, there must be doubt about the court's power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.
ii) The test for expert evidence will shortly import the word "necessary". The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word "necessary" for "reasonably required" and there will be a new Practice Direction.
iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say if it is the case and the hard pressed Tribunal with a long list has had the time that it has read all the (relevant) papers.
iv) If the court takes the view than an expert's report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge's approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.
v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.
vi) "Reasons" in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order.
vii) Speed is of the essence in proceedings relating to children.; An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.
viii) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert's contract is with the solicitor, and if he or she does not recover the expert's costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.
ix) Similar considerations to those set out above apply to any challenge to the LSC's ruling.
x) If a case is urgent, it should be so marked and the reasons for its urgency explained.
xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children's Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and "user friendly". Practitioners should look out, in due course, for the amendments."
For my part I would endorse that guidance.
Lord Justice Elias
Lord Justice Aikens
45. I agree with the judgment of Ryder LJ and the order he proposes. The problem of unnecessary expert reports has not been confined to family cases. The result of a proliferation of unnecessary expert reports (in whatever type of case) is that courts are all too often swamped with materials that are either not relevant to the issues in the case or are not specifically focused on the relevant issues. Unnecessary expert reports cause delays and, inevitably, costs are increased. In family cases where public funding is often involved this had meant that taxpayers' money has sometimes been wasted. Section 13 of the Children and Families Act 2014 and part 25 of the FPR now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously. They were completely ignored in this case by both the magistrates and, I fear, by Judge Scarratt, and further ignored even when the case came back before the magistrates again on 30 January 2015. Moreover, as Ryder LJ has pointed out, a mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful. That, too, was not apparently appreciated by either the magistrates or Judge Scarratt.
51.It is inevitable, therefore, that this appeal must be allowed.