time. Hello? Welcome, everybody Pleased to welcome you to session to off three. Uh, this is thesis in on looking at instructing types of experts and Children cases. Which ones? On why? So you remember last time we spent some time looking at the position with different types of experts which may be used in Children or cases. We looked at somebody drafting side off this particular standard Family orders Onda. We looked at the differences between part 25 of the fpr sections 13 off the Children Families Act off 2040. And also we looked at how this fits in with section 38 subsection six off the Children Act. What I'm going to be looking at today, then is I want to spend some time looking at some of the developing case law in this area. Onda also some of the more recent cases, particularly in terms of instructing experts and also the use of 38 6 and some recent case law, insofar as that is concerned. So let me just start with a case of TG onto this particular case, which was one of the earlier cases, uh, which was decided shortly before the changes came in through the Children Families Act was one that really put the wheels, emotions faras the the new test which was going to be developed for instruction off experts in Children. Proceedings on this was a case where by child has sustained injuries on. But there was a discussion at court between the parties as to the need for by mechanical engineer to almost reconstruct the scene at which the child was allegedly Thio does trip to Thorne over. Basically, it was during a baby band, sir, on to look at what kind of injuries could be cause in that situation. But the court appeal and, uh, the president of the family division that that states So James Mumby talk to view that that kind of expert that was sort was not necessary on the facts. The court was satisfied that if the child was tipped over in this way, uh, it wasna baby bands and of course, it was enough to put up the child would suffer injuries, and therefore it wasn't necessary to have a biomechanical engineer uh, report in this regard. In fact, what the court and said was theis expert evidence that was proposed fell short of what the test was for being satisfied in terms of being required in that regard, and the test at that stage was still under 25.1 in terms of being reasonably necessary. But his lordship did say that the test was now going to be is the instruction of the expert necessary to assist the court to his older proceeding, So TG very much brought in the that they're thinking body. The thinking behind a so called necessity test on this was then re emphasized in the later case. Later on that year, which was the case of H. L. A Child, a 2013 decision on Dhere at the court was being asked to then determine whether or not to permit the mother to have the benefit of having a geneticist appointed to give an opinion as to the cause off bruising to his particular child on what the court emphasized here was again, the test is one of necessity on. Also, there needs to be, um, understanding that one should not be blurring the lines between treating clinicians on experts that need to be maintained. So here, the actual treating clinician, if they were going to be asked to give an opinion on the cause of boozing and what their view was on what may have led to discharge, sustain these particular injuries, even order a treating clinician then if they were to give it a expert opinion. And of course, that application needs to be pursued apart 25 on the need to then ensure that they comply with the duties of experts Pursuant to part 25 on particular practice Direction 25 b of the family procedure rules so they can be formal instructor if they, of course, had the expertise to be able to give an opinion on that. But there must ensure that that in complied practice traction 25 b in that regard. So again, you can see the importance off this case Now staying with that. It was done a case last year in 2019. The case of a can't canceling be just 2019 family court decision where here A child has sustained head injuries wasin to care off the parents and there was a CT scan that was done with shoulder acute subdural hemorrhaging. Onda uh, this case whereby disclosure off the evidence was essential very early on in the proceedings by the treating clinician Andi here. What the court said was that it was essential that treating medical professionals understood the need to swiftly disclose or necessary information at the earliest opportunity on then to provide that opinion source to enable informed decisions need to be made on one of the recommendations in this case was that sometimes, uh, there may be a case where by there is a need for independent expert evidence on whether, uh, it would be disproportionately or proportionate to now independent evidence when there is a treating clinician information already available on what his honor set in this case was this. His honor said specifically that in a case such as this one, such as the types of injuries that discharge sustained and trying to determine on assist the court in terms of determining causation is that it was clear that independent evidence had it been available earlier then the family on the facts may have been reunited sooner on that was not done on the facts, and therefore it was being suggested that it was necessary to ensure that independent evidence is made available at the earliest opportunity if it becomes necessary. Okay. Now that then brings us on to somebody. Mawr Recent decisions in so faras instructing experts on the case earlier this year. This is a case of Ri a v a child expert evidence This was a decision on the fifth of March 2020 by the quarter appeal. Andi, it's of a very sad case. This one, sadly involving, uh, Children who had died doing has fire Andi surviving child who was later my subject to care Proceedings on appear related to the refusal by the first instance judge of an application for the instruction of a child psychiatrist as an expert in the Cape ceilings, the child siblings had been involved with the local authority to improve proceedings on they had been issues over home conditions and like, say, there was a has five. And sadly, although the child and her parents were his parents were able to escape his other siblings or sadly passed away duty has fire on that. Local authorities subsequently started care proceedings. Charge was made subject to interim care order and placed in foster care. There were assessments done of parents and they were regarded has not been able to be able to meet its Charles long term needs. There were no viable family members alternatives, so the possibility off adoption was becoming a real possibility here. Now the officials list on behalf the mother applied via Part 25 construction of a child psychologist to report on an impact on the child of a placement for adoption. Basically, given the trauma discharge had on will continue to go to three and, of course, long term impact on his child. As a result, off loss off siblings that has fire to give an opinion on how that will impact in on this child's ability to form attachments with adopters or otherwise. Andi This'll application was sort. But the court took the view that although the court would look at sections they did not have Children Families Act. The court took the view that the court does need to look at what other information is available can be available on. It was felt that there was all the information available by the Social Congar ding on this point. In fact, further information could be made available if needs be, uh, on. Therefore, on that basis, the application was in fact, refused, which led to the appeal. It was suggested amongst a number of grounds of appeal. One of the main arguments that was being advance was that it was wrong for the first instance Judge to decide that the social kind of guardian had a s a level of expertise to give an opinion on the impact on a child of adoption in relation to the context of the death of the siblings. Onda It was wrong to conclude that disinformation could be made available by the social worker on or guardian. That was one of the main grounds of appeal. Andi, uh, if you ever look at this case, uh, in more detail, for example, paragraph 24th e judgment, you can see His Lordship did say, and this really sums it up very well, in my view, his lordship did say that the difficult case like this one, the court does need to have the best possible evidence off the likely effect of his complex web of trauma. I ast to how that some impact on this child's future placement? Yes, the soldier, and regarding, of course, are highly experienced, highly trained, well qualified professionals. You know nobody's doubt in that. But his lordship did say that the expertise did not extend to you expressing a profession opinion as to the impact of loss on trauma. Off this degree and complexity on its found that only an experienced child psychiatrist can advise on such matters. So that's the kind of thinking behind it on why it was being suggested that it should be elsewhere. So, in fact, on appeal, the court allowed that application for the reasons set out. We'll talk. That then brings me on to applications under 38 6 other Children out. So you remember last in the first session, I did discuss with you the difference in terms of applications, whether it's under Section 13 of the Children Families Act or 38 6 38 6000 noise when one is looking to seek direction from medical psychological examination. Assessment of the child. So, for example, of residential assessment is classically what one would be seeking, Uh, fire 38 6. Sometimes it could be a community based assessment in the family home, for example, or in a in a in a community home, for example, in in that regard, it could also be a 38. 6 could also be used where one is looking at maybe a psychological psychotic assessment of the child a supposed to set a parent. So it could be that in this particular context, in this case of Ri G, this is one whereby the mother who was involved in Cape seems relating to her three year old She was involved in the Cape, seems relating to the child. Onda at this child had suffered serious injuries, unexplained injuries, chartered injuries to abdomen to the face, his eye and his Penis on a child protection medical took place on. But there was already a medical exam. Police investigation, ongoing sort of police through the CPS hadn't yet decided on a charging decision yet, so that made you may not. But in the Paul in the frame was mother on a her boyfriend at the time, and the local authority were suggesting that it was mother and your boyfriend who were responsible for causing some or all of the injuries as opposed to the mother on boyfriend, suggesting that his injuries were self inflicted by the child. Andi, uh, before that charging decision was being done and before one even therefore, had medical experts at that stage instructed. And before we had the composite hearing or the fact finding hearing before one even got to that stage at the mother put in an application under 38 6. Her argument waas that until such time as as those decisions are being made. And of course, in the meantime, there needs to be an assessment of May. Therefore, I'm seeking for there to be a direction under 38. 6. On her argument was that the child would, of course, be safe at the unit. There would be, ah, high level of supervision in that regard on before this assessment should be done on that basis. The local authority did, of course, opposed the application. Uh, they took the view that the mother's application should be adjourned until the police evidence was available, and CPS decision had Bean known at that stage, Andi in particular. It was argued that by the Guardian that even if the mother was to go into this residential assessment unit, uh, the difficulty one would have is that if it was positive and even at that stage, a determination had been made as the cause of injuries and identification of perpetrator or perpetrators. Then what would happen then? If he was a positive assessment? Would you be looking at place in the child with the mother in the community? And probably not on if we're looking at separation at that point in any event, which is really something that didn't need to be taken in account. Nonetheless, the judge first instance Judge did take the view that the proposal about a month mother was a safe one piece of the high level, obviously, provisions in the unit and therefore, uh, the quarter to take the view that they would permit the direction under 38 6 like was permitted, which then led to the appeal by the by the local authority Andi here. One of the issues that was being raised is the fact that here one was really looking at a residential assessment being done even before at the fact funny hearing on duh, although that can be done, uh, the court did say that the mother did remain in a pool of perpetrators, but it would be months before the court could make a decision regarding whether there was a single perpetrator, it remained possible there may be more than one so that that was part of the reason why the trial judge had had allowed this assessment because, of course, that time until determination is to perpetrator and cause of injury was determined, there needs to be that period of enabling that to be used for the purposes of assessment. On the local authority. Appealed, they said that the judges approach put the cart before the horse is sort to speak in that, the local authority said on argued that here, depending on what the position is, that there's a number of outcomes. For example, what if, at that concert here and go finding a factoring mother is completely exonerated, it may obviate the need for a residential assessment altogether. So therefore, why have it now? It may be that the mother is found to have cause injuries, in which case it may not be a residential that's required. It may be a psychological assessment to look at propensity to cause further violence that triggers the circumstances. It maybe there's appalled finding so effectively. The Lancaster type of findings were by findings were made against mother and the boyfriend on the base that neither could be exonerated, but it cannot be determined. More likely than not, it was one of the other that may then at that stage, beg the question as to what form of assessment is appropriate. And it may not be a residential. So here by suggesting that this assessment should be done, the local thought was saying the court has put the cart before the course on, um on really does not what should have been done. So ultimately, what did the court decide? Will? Ultimately, the court did decide at that In a case such as this, an assessment of the attachment between the mother and the child did not require residential assessment. Andi, uh, the nature of any psychological, if it was directed, would differ a lot depending on what was determined in terms of what the cause of injuries that impossible who the perpetrator was Onda here? Uh, the assessment. It was premature. It should not have been directed. It shouldn't have happened at this stage on, therefore, the application should not have bean directed, and therefore that was set aside. Okay, So you consider the thinking behind this and why the decision was made a zit waas. Okay, so that brings this second session to announce. So you can see we've covered somebody case law in this field. And then what I'm going to be doing in the final session is I've been going through somebody elements of cost ings, fi. So when we are looking at the position with instructing experts, I'll take you through some of the developments in so far as the cost of these will look at the practice directions in terms of experts. Also, Onda also some other recent case law. Okay, so thanks very much need for listening. And I'll speak to you in the third session, so thank you very much indeed. Bye for now.
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