Hello. Welcome, everybody. My name stuff to my mood on of a pleased to welcome you to today's bites Lie session through data law. Today I'm going to be speaking to you about seeking to instruct an expert in Children or proceedings. I'm really looking at what you need to be doing in that regard. So what? I'm going to speak to a little bit about different types of experts that we would have in Children proceedings. What the position is insofar is looking to instruct them on in particular, will be looking at somebody key case Lord, developments in so far as this area is concerned, so as you will appreciate, is going to be various types off experts that you may well be looking to instructing Children proceedings just to give you ah feel of some of the experts that we may utilize. Of course, in many cases, we may be looking to instruct maybe a psychiatrist or psychologist psychiatrist are looking very mature. Diagnosing maybe any for mental illness may be an addiction or some form of personality disorder. For example, psychologists looking very much more not doing a cognitive functioning assessment. You're looking at behavioral traits are and waste who really adjust behaviour, often to through therapy than in tears of other forms. Off experts, particularly on the medical side, you may have maybe pediatrician, for example, who can provide a general few and opinion as to charge general development in general health. A new radiologist, for example, when Children may have sustained head injuries, for example, may be required to provide advice on, for example, skull fractures on particularly sub hero on directional hemorrhaging and hematomas. For example, radiologists may be utilized a pediatric radiologist to advise on skeletal issues related to maybe say, falling due coming out him R I scans CT scans so as to provide an opinion on maybe a sprain or fracture or even a breakage of bone or bones on that does pathologists as well, of course, which may well be required, said any for Child has died, for example, to give an opinion in suspicious circumstances where a post board may be carried out with the region and assisting and so Fars determining at the cause of death of the child. So I appreciate there will be a number of different types of experts that we may well need to utilize in these types of situations, it's always imported obey of mind, insofar as what an expert is. Route 25.2, Subsection one of the family procedure rules of 2010 defines an expert as a person who provides expert evidence for use in proceedings. So you may well find that, of course, in that definition clearly comes a social worker and a Children's guardian, for example, So what is the test and four seeking to instruct experts and Children ceilings? Will it useful a case that one would rely specifically on Route 25 0.1? Andi in particular? 25.2? Also, But a test for instructing experts and Children ceilings is not contained principally within sections 13 of the Children of Families Act of 2014 and also at the provision within Section 38 6 in particular off the Children Act off 89. And what you need to pay a mind, of course, is if you are looking to instruction expert in Children proceedings than in terms of the procedural elements, one would need to ensure compliance with Part 25 of the foundry procedures in particular, is a 25.6, which requires for the courts parties to bear in mind that unless the court directs otherwise, parties need to ensure that apply for permission as early as possible. But certainly public Children or proceedings and part for persons generally no legs in the case management hearing in private Children or cases not later than the first hearing dispute resolution, appointment on adoption proceedings and place with scenes later than the first A directions appointment in terms of the notice itself in ISA set out specifically matters related to the expertise of the expert with the specific questions and issues that one would need the expert to look at. You need to ensure you provide a draft a copy of the order, and this is where specifically we're looking at 25.18 for example, which provides that unless the court directs otherwise a copy of any order or the documents which that expert at May, which do then considering need to consider, must be served on the expert by the lead lawyer. When the case of a single joint expert apart, he was responsible for instructing expert within two days of that party receiving the order or the documents he considers expectation to ensure that that's provided within two days off receiving the order of document on the expert. Also, it's important, not the actions to be taken after the final hearing, and this is where really 25.19 comes into play. So that's a 25.19 of the FPR, which provides that within 10 business days after the final hearing at the person who's responsible for instructing, the expert must inform the expert inviting about the court's decision and also the use to which the court made that particular report. Also, unless the court directs otherwise, a copy off the court's final order had any transcript on a decision on reasons for reaching a decision. Must also may be made available to the expert within 10 business days from the date when that party received the order Andy Transcript or the record sort that through 25.19. So therefore, when it comes to instructing experts, you need to pay the mind at T provisions that we need to be clear about his Section 13 subsection six of the Children Families Act in the main that sections 18 subsection six Children families like 2014 which provides that the court may only give permission to allow expert evidence if it is necessary at two resolved proceedings. Justly. Okay, so it's the necessity test in that regard. And how does the court actually go about satisfying that necessity test where this is where the court need to consider Section 13 subsection seven off the Children of families active in particular, what the court need to concern themselves with our matters? Relational, for example, what impact giving permission would have on the welfare of a child, not including the impact would any which any examination or assessment would have on the welfare of a child? You also looking at issues which the expert be looking asked to consider, in particular at the questions which the expert would be expected. Diwan, sir. What other evidence available? And that's why it's very, very important to look to see if there is other evidence available, for example, which before one starts proceedings or doing proceedings which made and required a court. He considers whether to give permission or not, and also whether evidence could in fact be given by another person on the matters to which this expert would be required to give evidence. So, for example, kind of social a friend or the guardian maybe provide the evidence, which is being sought in the second chances, and also what impact which giving permission have on the timetable duration of the conduct of the proceedings. So what impact will live have under court time tape on the chance timetable is this was permitted, so that needs to be looked at as well as the cost of the expert evidence so clearly the Kourtney's to weigh up the cost to ensure that the proposed assessment he's one that is one that justifies the expense in that regard as well as any other matters on their family procedures. And this is where we need to also be clear about Section 38 subsection six other Children that whereby if there is a requirement to carry out a specific assessment which involves principally the child, then this may well be a direction for medical psychological examination or assessment of a child. And that comes within Section 38 subsection six. So its principal parts of our section 38 7 a of the Children that were the court need to be satisfied at that direction is necessary to assist quarter results. Proceedings justly on the criteria which recorded consider are set out in section 38 7 b of the Children and those criteria under section 37 b of very similar to one stuff just mentioned under Section 13 Subsection seven Off The Children Act of 89 aside, the Children Families Act of 2014. Now, as you can see, if certainly emphasized word necessary and justly on this is where there's been a lot of case law, which is looked at these terms off example Re s a child. This 2014 case looked very much at our DEA word justly. And in this particular case, the then president of Family Division, Sir James Mumby, made it very clear that the addition of the word justly in the test for instruction experts simply makes explicit what previously was necessarily implicit. And it goes without saying that any court must make sure that act justly run and unjustly in deciding whether to allow expert evidence or otherwise. The other leading authority in this context is a case of T g a child. This 2013 case on Dhere. The judgment also handed down bite leading judgment done by the then president family divisions that James Mumby emphasized the fact that when it comes to expert evidence, it should only be permitted weight is necessary to assist the court result of pursuing. So again it's the necessity test and therefore it's not that the expected it is reasonably required, but it's necessary to assist the court. His Octopussy means justly now. This is where there was in the later case of hate L. A. Child. This 2013 case and what this case emphasizes is not only the necessity test that I've mentioned, but also it emphasizes the importance of ensuring that the lines are not blurred between treating clinicians and also court directed experts and the Court of Appeal in Hey. Chou emphasized that when it comes to the test for necessity, that what message means just that and one needs to ensure that if, for example, there is a need for treating clinician and to provide expert opinion, and that needs to be in accordance with Part 25 of the family procedures of 2010 unlinked with that, it is a more recent case of a candid counsel and be just 2019 family court decision involving a child who has sustained head injuries. Wasin the care off the parents on one of the important aspects, Uh, that the court emphasize here is that it was essential treating clinicians understood the need to ensure that work necessary documentation is really disclosed azaleas possible in the circumstances. This was one whereby the league pediatrician and provided details of her of analysis on suggested evidence off Ricketts shown on the Chance skeletal survey, although later that the Ricketts did not demonstrate really connected wasn't the cause. 80 factors off the injuries that the child has sustained. But had that information be made available earlier than potentially, it may have led to resolution earlier in the proceedings. So they for with that in mind, one of things that the courts stating once that there is a need for independent expert evidence. Onda with that in mind, in cases such as this particular one, independent evidence was absolutely crucial, and they had to be independent evidence available earlier, which, on the facts of this case, may have led to the family having got reunited sooner than what they did now one of the other aspects. Of course, when we look at instructing experts is the position. So any who pays for assessments on that? This is where this case of JG and the Lord Chancellor another's comes into play. This 2014 decision This was an appeal. So having a private Children or case whereby the court had directed that the costs off a particular expert should be shared between order parties on day, it was a case where by two other parties were non publicly funded and the court did say that they should only allow or be quiet parties and no circumstances to fund the falling of a bus. Scrutiny on exceptionally should only order the leg lady parties to pay greater sharing the circumstances. But in fact, when the matter went to appeal, the quarter appeal took the view that at the court did not accept the equal sharing of the costs of next. It was a normal rule and in fact, equal apportionment of costs was not normal rule. Instead, each case famous sat on the song facts, so therefore it wasn't normal practice that there be sharing of costs. Each case has therefore famous to be looked on his own case and therefore, if following or of US financial assessment, his foul David would be disproportionate for one party to pay the costs. Then the court can. Indoor circumstances order that the costs are met by another party or greater share of the costs are met by another party in the second stances. So that, of course, can be done. Now when you are looking to instruct experts very important baby mind at your various practice directions. Also, which linked to instructing experts so principally have mentioned practice direction 25 a through to 25 f 25 a related to instructing experts in emergencies and pre proceedings, Instructions Services potentially so. This is particularly the fact that so you're in pre proceedings. Then there is a need to ensure a letter of instruction. It's prepared in double circumstances Now. Then you got practice direction 25 b, which sets out specifically the duties that of expert provides. Uh, you know, I was instructing as well as to court and also the contents of the experts report and also the arrangements to be made for that expert to attend court to give evidence So this sets that specifically the duties placed upon experts and what should be covered in the report on that the expert has an overriding duty to court and not the person who is actually paying their fees in those circumstances. But then he got practice direction 25 c, which relates to the use of single joint experts on the process leading to an expert being instructed. So this would set are specifically the information of the guidance relating to instructing experts. What goes in electoral structure. Andy. Identification of the expert liaising with the experts. So this is very significant, particularly for the lawyer and under source of practice direction 25 A. Which relates to discussions between experts in family proceedings on this practice. Traction 25 which is to do with particularly related to assessors, not one of the other. We shoes that we sometimes have raised as an issue in these matters is that which relates to whether the court can in fact, even directly assessment or otherwise. And this is particularly fits for the child because they don't brings into play as to whether or not it's an assessment of the child or whether it's therapy or otherwise on this is other consequence off the case off re Why a child, which is a more recent case which has looked specifically at this issue under this is where the case has looked at the difference, particularly between assessment on therapy. Yeah, Andi, essentially, what happened here? This was a case that involved a mother who wanted to go into a particular facility. Mother had been seen by psychiatrists diagnose that mother had unstable person, actually sold on addiction to certain drugs. And mother wanted to go into a residential drug treatment unit extending for at least three months but possibly six months with the child in placement, some other large an application and apart 25 of the founder procedures whereby she wanted the quarter directives. But the local authority polls, they felt that this particular work was not necessarily, in fact, mother's engagement could be assessed in the community and that this was a 12 week placement, which was identified, which provide on environment whereby it appears could address their substance misuse. Andi, also remaining his primary care, is for the child. Essentially, it was going to involve looking at absence of drug and alcohol endorse of detoxification and there was some major element involved was therapeutic work. But there was apparent element on a chart in front of the telly mentor. So the court did say that looking at the low on this area specifically when one looks after Section 38 subsection seven a of the Children Act one has to be satisfied that the assessment is necessary to assist a court result persons justly and then one has to look at section 38 7 b in terms of the criterion deciding whether to make a direction under section 38 6 But here the court took the view that this particular highly specialized drug treatment unit provided a separate unit which provided therapy as opposed to assessment in that regard and therefore was not within the remit of the court of direct toe work. In any event, given it was therapy occurs as opposed to assessment linked with that. One of the other cases that I wish to bring to your attention is this other case of in the London borough of Barnet and T G H on others, and this is a case of 2017 which is a very important case because it considers the science of hair strand testing and the way in which experts reports are particularly looking at testing are presented before the court. Her mother had stated that she, uh, had not been using drugs for some time, but Touch denied the other evidence was supported that they had been some usage off drugs under a court did say that when it came to drug companies providing information before the court, then His Lordship did say that it's very important. Stressed out the responsibility for making proper use of scientific evidence force both on the right road reporting also the reader. The writer must make sure, insofar as is possible, that the significance of that date is explained in a way that reduces the risk of it being lost in translation on. Similarly, the reader must ensure that they do not jump to conclusions about drugs. Are call would understand the significance of the data, and they fought. It's very, very important to ensure that date is correctly recorded on correctly interpreted in that regard On the family Call, of course, works on the premise of a civil stunt of proof on def. on a balance of probabilities and therefore it's very important that the court said it would help. Opinions about testing results could be expressing that way. Okay, so you can see somebody important things that were being raised in that case. So therefore, pulling this together. You can see that when it comes to instructing experts fairy fairy important to ensure that there is compliance with Part 25 of the family procedure rules insofar as the procedure element is concerned. But of course, we need to ensure that there is clarity as to whether the application is under sections 13 of the Children Families Act 2014. But if it's an assessment involving principally of the child, then it may be an assessment that's been sort of this Section 38 subsection six of Children. I have seen the criteria actually very similar, also very important not to developers practice directions that I've referred to. And you can also see that the case law has developed over the years, particularly when it comes to looking at the difference between assessment and therapy. On also, what exactly is necessity when it comes to instructing experts are up that's being useful session for you. Can I? Thank you very much indeed for listening and I'll speak to you next time. Thank you. Bye for now.
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