Practical course on the type of experts in children law cases and which one to choose and why.
Hello. Welcome, everybody. My name's softer. Mahmoud. I'm very pleased to welcome you to today's session through data law. This is the session one off three where I'm going to be taking you through the matter surrounding types of experts that may be used in Children law cases. Which ones may be used on Why? So we're going to be looking at some of those elements, and I prepared some slides for you where we've set out somebody aims and objectives, as you can imagine, experts often relied upon in broad pie private and public Children or cases. Andi. It's very important for any certainly really representative involved in these types of proceedings to be familiar with the law practice and procedure surrounding who to instruct how on why, and sometimes there is some confusion amongst lawyers as to what the procedure is. Is it under part 25 of the family procedure? Bruises on the Section 13 of the Children Families Act is on the Section 38 6 of the Children Act, so there is some confusion. Sometimes I'm going to try and go through that with you on, like saying particularly into relationship between Part 25 Andi relationship with Children on Families Act in that regard. So what I wanted to start with is this'll. We're looking at this material as of October 2020. So I brought you up to speed with two changes us off this month. Andi, what we're going to be starting with then he's talking first and foremost in today's session with the types of court appointed experts or what kind of experts may be used in in Children law proceedings. Now the first thing I wanted to say is, in Children ceilings say you've got the family court office saying the private law case, you got 16.4 appointment, often of a guardian in private law, you'll have a social worker in public law. You have, uh, the Guardian, the Children's guardian in public law, those experts or professionals in the on right or experts on for whom you wouldn't need to be seeking permission of the court to so instruct them by which of the other provisions which are provided sold. For example, in the case of Children's guardian, they are, of course, an expert in the on right on. You wouldn't need to complied. Part 25 for them to be appointed Section 41 of the Children that allows the garden to be appointed in specified public law proceedings unless the court feels it would not be necessary. 16.4 bites Favorite nature allows a quarter to make our direction for a child to be joined and then to enable them to be, uh, certainly represented whether to calf Castle. Otherwise, so you can see in that context there's no requirement to use part 25 ft instruction and, of course, social workers by their very nature, as, uh, certainly professionals in the own capacity of experts. But it wouldn't need to use Part 25 for Social Worker to be coming out, for example, of parenting assessment because that responsibility falls upon the local authority is part of this statutory duties. So what we're looking at here is court appointed experts. So where, for example, you may want, say, a psychologist or psychiatrist to be appointed, we may want to independent social worker appointed when he may want to certain medical experts, for example, appointed. That's really what we're looking at for this purpose, Andi. You'll be aware that there's various types of experts that may then be necessary in any typical private handle. Public law case. So in a private Children or case you might find there is a need for independence Social worker There might be a need for psychologists, psychologists, psychiatrists, for example, Nowadays, given more more cases involving parental alienation. Andi so called implacable hostility liner cases You may get MAWR experts now who are in tune to give you an opinion about parental any nation, for example, so in private Children or cases that may be the case in public law. Of course, you may need a variety of experts depending upon the nature of the concerns. So, for example, if it's a child who has sustained injuries, for example, then you might need possibly an expert giving you an opinion on bleeding and cause a bleeding. So you might need a pediatric hematologist. For example, a pediatrician may be required to give you a general overviews to Charles General Health and Development. For example, if a child has sustained head injuries, aunt has sustained injuries which take the form of a subdural hemorrhage retinal hemorrhaging, for example. You might need a new radiologist, for example, to then read the thes scans, which are available to and advise you on matters related to skull fractures and subdue your original hemorrhaging. For example, hematomas. There might be a need for pediatric neurosurgeon to give you an opinion on those things. If a child has sadly died, then if one needs to determine the cause of death, you might need to have a look at the m R. I scans a CT scans, and this is where a pediatric pathologist may be required. Thio. Look at doing a postmortem. I don't assisting in terms of giving opinions to possible cause of death. A pediatric radiologist may be required to look at m. R. I scans CT scans. Do you know, looking at skeletal surveys. So I'll give you an opinion as to possible cause off the course of the injuries. In that regard, some Children it maybe have got preexisting disposition. So therefore you may need a geneticist, for example, giving opinion on maybe gene deficiency in that regard. And you've got your psychiatrists, which will give an opinion on matters related dependent, mental illness, addictive behavior, for example, in the case of maybe adults, Onda Uh oh indeed, Children in some cases and also psychologists who will do cognitive function assessments on also giving opinion on behavioral traits on also intellectual functioning generally so you can see a number of potential experts that may need to be instructed in any typical Children law case. Now, we need to think about court orders So many of you will be familiar with the standard family law orders, which have become available in the last few years. So this is the practice guidance standard Children on other orders, which were issued by the, uh, the then President Family Division, principally Sir James Mumby a few years ago on, many of you will be using these. They are excellent, very good. And they give you a lot of the wording that you need to then incorporate that in your case manager orders on. Otherwise, Andi, even before these were put together, some of you may remember there was this very important case off a local authority in D. S. This case off 2012 for High Court decision on this is where the then president of Family Division, Sir Nicholas Wald set out what His Lordship belief should be. Some of the wording putting the orders to make sure that it was clear to avoid any difficulties there after in terms off payment, which would need to be provided by the what was then the Legal Services Commission and led to the legal aid agency. So, for example, making provisioning the order to the effect that the assessment of propose assessment a report by that particular expert is necessary, for example, it's vital to resolution of the case. So making provision for that evidencing the fact that that case may be regarded as being exceptional on its facts. So it may be that the case very important to put the costs incurred in terms of the alley rates, for example, that's holiness a reasonable proportionate on the alley rating and the estimated costs on all sort of field in which that person practices is one which is highly specialized Now, you may not need that wording in all the cases, but certainly in a number of matters where you looking to instruct the expert wording which addresses That is what is necessary to ensure that the Legal aid agency would then not be in difficulty in being able to be satisfied that the court deemed it necessary, and therefore they would deem it unnecessary direction, going forward for the purposes off payment. Now this is where they were going to look at the rules and regulations on instructing experts. And one of the questions that sometimes lawyers ask themselves is. What is the relationship between Part 25 of the fpr on Section 13 of the Children Families Act? Well, if I take you back in time two. When the family procedures, of course, were put together, and they came into effect in April 2011. So here's a funny procedures of 2010. We had Part 25 at that stage. Which does, of course, look at the instruction of experts in family proceedings on at first until the Children families that came in a few years thereafter. If one was looking to instruct an expert in Children proceedings, you would then be reliant upon Rule 25.1, which he's whereby the court would then be looking to permit expert evidence where it was reasonably unnecessary, a reasonably required. But then things moved on somewhat so that we had Section 13 Children Families Act of 2014, which came in in April 22nd of April 2014, which had the effect that really 25.1 for Children proceedings was admitted. So, in fact, since then, even though you would still use Rule 20 5.1 for the purposes of instruction on expert in family proceedings that was then confined to financial remedy matters in terms of the provisions under 25.1 in terms of Children proceedings, this was now brought in line with section 13 of the act. So this is what one would be reliant upon on effectively. An expert for the purposes of part 25 is under rule 25 point to an expert is defined a somebody who effectively provides expert evidence for use in proceedings. So, as I said earlier, social workers guardians 16.4 appointments. Those professionals are they by the very nature experts because they are giving expert opinion to be used in proceedings. But it doesn't necessitate. It doesn't require them to have a formal letter of instruction in the same way that you would have a court directed expert in that regard. So that is the difference that you've you need to appreciate. So let's say we're in a Children law case where I'm looking to instruct, say a psychologist, Onda. I'm acting for, say, the mother, and we want to instruct a psychologist to give us first and foremost a continent functioning assessment undertaken of Mother. So that's the first thing on. Secondly, maybe a full psychological assessment. Day after looking at her behavior traits her her ability to be able to prioritize the child's needs above her own on, uh, given us an opinion as to whether she may need further help and support their whether it's therapeutic work or otherwise. So we're looking at seeking an expert in that regard. So what we need to ask ourselves is, first and foremost, how does the court exercise its discretion to allow expert evidence and Children ceilings? And this is where we'll be looking specifically at the Children on Families Act of 2014, which I'll take you through shortly. But in terms of when I need to apply for permission. This is where regard has to be had to 25.6 of the fpr, which basically provides that unless the court directs otherwise, when I'm looking to instruct an expert in Children proceedings then essentially in part four Proceedings with 25.6 would say part for proceedings and insofar as another public law proceedings. So you're looking at care proceedings, supervision, order applications and those types of proceedings. My application should be lodged to instruct the expert no later than the case management hearing. The CMH on those of you who do care proceedings will know that the CMH should be listed to take place between days 12 to 18 of issue on the pack destruction 12 A. So I should be looking to make my application for it to be heard than at that CMH unless the court directs. Otherwise, the situations we may get permission sought afterwards was where, say, the local authority have not completed their pounding assessment by the time we get to the CMH. So therefore, it's not possible to make any application for the instruction of saying independent social worker otherwise, because we're still awaiting the conclusion off the local authority panic assessment. So that's where the court may give me permission to apply to instruction expert after the CMH. But what this point emphasizes is if I have left it without good reason to apply for expert evidence in those circumstances, then I could be fan to be falling file of Rule 25.6. Sort of court can potentially refused my application unless had good reason for why it was not applied for when it was on in other in private law. Proceedings with 25.6 provides that in private law proceedings, my application should be looking to be lodged Know ledge tender for head read us The first hearing Dispute resolution appointment, which under practice stretch in 12 B, should be listed to take place certainly within four weeks of issue, not five weeks, but certainly no later than six weeks after issue at an adoption proceedings and placement. Not a related proceedings. No. Later in the first directions hearing, which, if the court does decide to list for a directions hearing in the case of such applications, that should be listed normally within 28 days of issue on in financial remedy proceedings no later than the first appointment, which, in the case of standard procedure, should be normally between months 3 to 4 issue now what should the actual application notice consist off? So the application notice what should it stayed? What should it provide? Well, this is when Children proceedings. Many of you will know that the application notice will ordinarily take the form of a C two application in finance proceedings. You could take the form of a 11 on this is where it needs to set out specifically to field in which the expert is required to give evidence. So what is the expert? What's the expert area? So in this case, the psychologist were practicable. We should be putting named a person of more times. Now we will the issues which you want the expert toe answers are very, very important to emphasize and sat down out also on whether or not the expert evidence to be obtained from a single joint expert or otherwise. And as you imagine, in Children proceedings, we tend to find that the court would require us in more cases than not to go for a single joint expert. So it's a single expert in that field, such as a psychologist, but joint instructed by all the parties which would make all the parties jointly on severally liable in that regard. On that would often be the case and also, of course, it needs to set out a draft of the ordered. I has been sort of requesting permission, so we should be getting the draft order together as well, so I could see a fair bit of work that needs to be done if you're looking to instruct an expert in this situation now, in addition to that, it's also very important to bear in mind thesis provision, which relates to the position of copies of orders under the documents through 25.18 on this essentially provides that unless, of course, to say otherwise. If I'm the lead lawyer than any orders or documents that I am therefore and showing are going being sent to the expert, I need to ensure that they are sent to the expert, Uh, certainly no later than two days after I have received them. Now this is very, very important. So that, for example, from the lead lawyer on DWI at the beginning of the procedures, for example, as I'm getting new information coming through new evidence from the other parties orders, I should be sending those to the expert within two days of me receiving them rather than letting those documents all build up so that I then send them to the expert in a bundle close to the issues resolution here and go to find a hearing so that they can then read everything together. The problem with that is it's going to be very difficult and for the expert to comply with their duty under practice. Traction 25 be of the family procedures. Uh, the supplement of the family procedures and that is Theo, expert is honor is under an ongoing duty to keep their opinion under review. So, for example, if new information comes to light, they have to keep their opinion under review. But if I don't send them this updated information in piecemeal as I'm getting it, it's difficult for them to, of course, keep the under review. So that's why I would suggest compliance will during 25.18 is imperative, and they were very important in that regard. Then there's also real 25.19, which is action after the final hearing on this provides that within 10 business days after the final hearing, Amir's the lead lawyer. I should be writing the expert in writing to inform them of the outcome of the hearing. Unless the court says otherwise, I should be sending a copy of the final order as well as a transcript on also any judgment. And I should also tell them if the court comment on Monday reporters to what that comment was. So this is really useful and important feedback that we should be given to the experts so that they know how they report was used in court to help them to reflect on that and then maybe amend what the point of report for future cases, but also to tell them what the outcome of the hearing is in that regard. Okay, so again, very important Thio to bear that in mind, right? That then brings me on to the actual test for instructing the expert. And this is whereby if, for example, we want to psychological assessment of Mother, for example, I I gave you then I would be seeking to make such an application using the application notice. As I mentioned earlier, Andi, I would need to satisfy the court that Section 13 of the Children and families actor met, and that is Section 13, subsection six of the act provides that the court may only give me permission to allow that expert evidence i e. The psychologist if it's necessary to assist the court to resolve the proceedings justly Sylvester Necessity test that we need to dear Bye Now in financial relief proceedings, the test is the same. It's no necessity test, but he they set out with Impart 25 25 in particular off the fpr but like saying Children proceedings, we've got principally this 2014 act. Ah, later, I'll take you through 38 6 and a bit a swell. So what factors will the judge decide in deciding whether to allow that direction? So if I'm invited the judge to give me permission to instruct that psychologist, what factors will they then take into account in deciding whether or not to allow that or not? Well, those factors you'll find are very similar to 25.2 of the fpr on essentially the court we need to take into account first and foremost what impact, if any, is in giving permission to the welfare of the Children. So how is it going to impact on the child is examination assessment that's been sought on. Also, what are the exact issues that you're asking? You're gonna be asking this expert to look at, so that's what we'll have to be. Look at what? The questions you want them to answer. That's why it's very, very important to get the draft order together with the draft questions. What other expert evidence is available? Whether obtained before to start up ceiling? So, for example, of we already got social extent, Have we got an opinion from the Garden? Have we got maybe a psychological opinion? Also? So what's already available? Uh, which then begs the question. Do we need this if we've already got this information on whether evidence could be given by another matter in which you're asking this expert to evidence? So, for example, if it's an independent social worker you're seeking instruct well, why can that request not go to the child's social worker? For example, Why could not that information will be provided by the Children's Guardian, for example? So the court has to look to see, can we get this information through other means? On also, what's the impact gonna be in giving this permission on a timetable for the child, the duration of the conduct. So is it going to mean that there's going to be delayed, which is prejudicial to a child's welfare? Is it going to go beyond 26 weeks? In the case of a public public case, for example, how will it impact on timetable? And therefore, is this going to be constructive, delaying the circumstances? So therefore, that needs to be way too pulls up on also want us to look at the cost of the expert evidence to make sure that the costs are such that it's going to be a legitimate and appropriate use off? Limited public money is, of course, in that regard, whether it's too the legal aid agency off through the local authority budget on also any other matters prescribed body family procedures so you can see those are the questions that need to be asked. Now, sometimes there may be a need for permission to be sought to instruct on Expert via 38. 6 of the Children at the 38 6 of the Children Act is where the court can make a direction in relation to medical or the examination assessment of the child on this may be where say, for example, you in care proceedings and the mother and father what the benefit off, say, a residential assessment where they wish to go into a residential assessment unit with their child for the purposes of assessment. Now, something like that. If they seek that assessment and the local authority are refusing, then something like that would be a neck spurt of application. They would be looking to make no under Section 13 of the Children families active, but instead under 38 6 off the Children Act because it's principally an assessment of the child with the child in placement, with the parents on the criteria for that eyes going to be under Section 38 7. A. Where. The what? 7 38 7 a series where the core can only direct this if it's necessary to assist the court to his old Everything is justly, but the criteria that the judge considers is actually in the section 38 7 be off the Children Act. So, for example, if you want to residential assessment, if you want some other assessment, which is a medical site critical of the examination assessment of a child on your making the application, and it's the criteria going to be under section 38 7 b on the criteria actually very similar to what we've just discussed. Insofar, Section 13, subsection seven of the Children Families Act off 2014. Okay, so very important to have that distinction. Your mind. Part 25 is the procedural element there at your test for non Children assessments is affected Section 13 7 of the CF 2014. But for Children assessments, the test to decide whether to permit you to have expert evidence now is under 38. 7. Be off the Children activate night. So that's where he got a look at that distinction between the three. Now I want to finish with this case of D or hate Children. It's an old case now, but nonetheless a very important one. Heard in 2011 on what this case illustrates it sometimes you may have, uh, say apparently, assessment carried out in this case by the local authority, which did not follow the working together guidelines at the time on. Before there were gaps in the assessment, it was a week assessment, but that doesn't necessarily mean that your client will necessarily get the benefit of a direction on the 38 6, for example, because in looking to see whether or not you should get that assessment or not, one of the questions the coordinate to look at his what other evidence is available. So if you look at section 38 7 b sub paragraph D, it does specifically say what other evidence is available now. Even though the Ohh was decided before these changes in 2014, the principles are still applicable. So, for example, on the facts of D. O H. You found that, yes, there was a week parenting assessment taken by the local authority because there were gaps in it. It didn't follow the working together, but actually there was a benefit of another psychological opinion. There was hair strand testing done. There was Social X statements. There was information from probation. So when you put everything together holistically, the court had what they needed to be able to make an informed decision on there for that negated the need for a direction on the 38 6. So you do have to look at what other information is available holistically in deciding then whether or not to permit that expert evidence. Okay, so very, very important that point, right? Okay, so that brings this first part off this three part session to an end On day, you can see we've then looked at somebody key elements off, looking to instruct experts. When we meet up again, I'm going to be taken into some of developing case law in this field. Onda. How that has been helped to make informed decisions. You can Thank you very much indeed. I'll speak to you again on next session. Thank you very much indeed. Bye for now.
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