Hello and welcome everybody very pleased to welcome you to today's session through data law. My name. So after Mahmoud Destiny Session two of to where I'm taking you through the position with instructing experts in Children cases, some of the case law, some of the guidance and some of the procedures. And you remember in the previous session and I spent some time going through with you the different types of experts that we may use than in Children proceedings ranging from those experts which will look at issues relating to uh certainly diagnosis in terms of cognitive functioning, any from mental illness and addictive behavior. Through to a lot of the cases involving physical injuries and in a different types of experts which we may need. I took you through part 25. I took you through The Children Families Act and also made reference to section 38 6 and particularly looked at your duties when you when you are looking to instruct experts and what you need to be doing once you have instructed. We also spent a fair bit of time you remember looking at the position with the test for instructing experts. Cases like T. G. H. L. Those line of cases for example, today they want to go entrepreneurs are spending more time going through with you somebody aspects or adding again the procedural elements but also looking specifically at the developing guidance that we've got. So adding different types of experts whether for example, it's a lay advocate, whether it's an intermediary and also a legal aid agency guidance insofar as that's concerned. So we'll be looking At some of those elements and also the use of 30 8 6 Children acting in particular. So it's always I put the copyright acknowledgement here for you. So this thing brings me on to first and foremost about 38 six of the Children. And this is a very useful device whereby sometimes we may need to then seek permission to instruct experts which could take for maybe a residential assessment unit, which could take the form of maybe a community based assessment in the family home, in the family Centre for example via 38 6. And if you take a residential assessment for example, this could be where the child is placed in one of these units would say their mother, father or both or either. And the purpose of this assessment is just that it's to enable the child to be placed in placement. You're assessing the parents uh huh ability than to be able to meet Charles needs in displacement going forward. So that's the purpose of it. There is a fake part of a parenting classes given in these units as well. So it's not just pure assessment. There will be elements of parenting classes or maybe for example, positive parenting work. P work for example, in there could be psychotic psychological input there, but the majority of the piece of work that's done is assessment. An assessment which is continuous parents will remain in these units on average for about three months, sometimes longer. The lovely own kind of communal bedroom areas with the child. I love dining room areas, communal areas obviously to make sure that there is sufficient supervision. There will be cameras all around the the unit sometimes even in the bedroom as well. Okay. The purpose of this assessment is very much just that to carry out an intensive parenting assessment tends to be used more so but not always a fan. Sometimes with the newer parents, sometimes younger parents parents where there is acute concerns related to acute deficiencies in general parenting and handling of the child for example, and it has a funding for this. It's paid for entirely by the legal aid by the local authority. The legal agency did used to contribute towards the cost of residential assessments and any other form of Assessment under 38, such as pre assessments. Viability assessments and residential and family based community based assessments. But since October 2007 illegal agency have changed the position with the regulations of that state so that they will no longer fund the costs of residential assessments. Viability assessments or otherwise. And this is where there's been a case of re G. Which was a very useful decision whereby this case in February 2020 was one whereby the mother was seeking a direction Via 38 6 Children act for a residential assessment and she was seeking a direction 5386 for there to be a residential assessment undertaken of her with a child who was three years of age in placement. And the caught on the facts here I was faced with a situation where a mother saw this assessment, the local authority opposed. And the first instance judge took the view that the proposal of the mother in placement when the child was a safe one was one because of the high level of supervision. Manufactory would be adequately managed and dealt with on this basis. But what the issue was here was this the mother of this child has sustained injuries. Local authorities commenced cape ceilings. The police had not yet made a charging decision and until that was done. And because you're in cave ceilings. And of course we are then up against the the 26 weeks with a view to ensuring that assessments are done swiftly and within that period of time. This is where the mother was seeking for there to be a residential assessment undertaken off her in terms of looking at her general parenting. And here this was a case where by the court did say that the mother remained in the polar perpetrators. But it was going to be months before the court was in a position regarding really deciding whether there was a single perpetrator and it remained Passport that there could be more than one person in the pool of perpetrators. So the first instance judge talked to view, well look, I'm going to use that time until any finding of fact hearing or otherwise to enable there to be a parenting assessment of mother via The 38 6 who had this residential assessment unit. But the local authority appealed. And the local authorities position effectively was that the judge put the cart before the horse. So the idea that in a situation like this we don't know what the charging decision is going to. People don't know what's going to happen without any finding of factoring. It may be that findings are made that it was mother who is the perpetrator. It may find she wasn't a perpetrator. It may be that her partner was. But are you looking at her propensity to associate with violent partners? And that's where we're looking at doing an assessment. So we don't really know what kind of assessment may be needed until we've had our finding of fact hearing and therefore having a residential assessment at this stage. Although yes it will give the judge information over and above what they've already got. It may not necessarily be the right assessment that's needed for this child. And the other question that guardian of course canvassed was that what if you do this assessment of the mother of residential assessment via 38, what would happen at the end of the assessment period? So for example if she's successfully demonstrated herself doesn't mean the child is placed with her bearing in mind at that stage. we still may not have any clarity as to cause of injuries as to the responsibility. Was it mother was her partner or was it somebody else had caused injuries? So that left that dilemma as to what was then to happen at the conclusion of the assessment in any event. If that assessment was concluded before, at the the determination as to the cause of injury, so that's going to be an issue as well in that regard. And the court ultimately on appeal said this, their view was that an assessment of the attachment between the mother and the child did not in fact require a residential assessment. And the nature of any psychological assessment would differ markedly depending on what the court decided as to who cause injury. So as I said, if you do a residential, now, that's one thing. But once we've determined who cause injuries, if indeed injuries would cause other than through an accident and we determine who cause injuries, then that would then determine what form of assessment has been done of mother. So if she was a perpetrator, that would take one form of assessment, she wasn't. But she was somebody who should have certainly been aware of the potential risks here and what they should do to address those risks. And would she be able to address those risks in the future and that may take a different form of assessment in that regard and therefore, and balance the court said that yes, this assessment may be necessary at some stage in the future, but not at this stage. It wasn't an assessment which was necessary at this stage and therefore it didn't satisfy the test of necessity. So again, as you can see, that's the the important element with a case like this. Let's now look at the position with the apportionment of costs. Let's look at a position with who pays and in what manner. Now, this is where we had this really useful case of R. J. G. Against Legal Associates Commission as it was in those days and others just 2013 decision. This was a private Children or case and it's one we're by the court to view that in a situation such as this where in this private law case, it was felt that there was a need for psychological assessment to look specifically at the family dynamics. Now the Charles lister, This was a case where the child was joined at the party has only got 16.4. So it was a funny certificate in favor of the Charles lister. Mother and father were litigants in person. And the judge took to view that the parents wouldn't be expected to fund towards assessment. It would only be the Charles solicitor which meant the legal identity. We're basically going to be paying entirely for the assessment and that's what we lead to the appeal. And one of the things that the court appeal when it did go to the court appear in 2014 in the case of JD, Lord Chancellor and others decided was this, there needs to be clear directions given us to payment of experts fees. So who is going to be paying which funding certificate is going to be coming from in that regard? And apportionment of course, should be based on a particular facts of this case. And there wasn't anything in law which said that there was a so called normal rule that costs need to be shared equally between the parties. So despite that argument being advanced, there wasn't anything to say that the costs actually need to be shared equally between each party. Each case has to be looked at on its own facts in that regard. So really in a case like this, where it was felt that there was a need to look at the funding this assessment whereby there was a need two having a psychological assessment, looking at family dynamics, you had the child solicitor who had the benefit of a funding is difficult from legal agency and then you got mom and dad, mother and father who were parties who were litigants in person, ordinarily in a case like this. What you find is the court may carry out a, what's called a robust financial assessment. So they will ascertain the financial position of the mother and father and they were then based on that, make a determination as to whether they should be funding cold funding towards his assessment or not. And if it was felt that it would be disproportionate to require the parents for example to pay more more than what they were able to pay and therefore to make it an equal contribution. Then the court of your decision was that the judge can vary that. So there is no normal rule that the costs need to be shared equally. Each case has been looked at stone facts to see what the issues are, who's going to have an interest in on the outcome, Who can contribute towards the assessment, who's able to afford towards the cost of assessments. So those are the things do need to be looked at in those circumstances. That then brings me on to the issues for having written Questions to experts. This is really 25.10 of the FBI and also discussions between experts. So when it comes to Discussions, for example, this is really 25.16 this could be were, let's say you've got a public Children law case where you've got a number of experts appointed. So it's a child is sustained head injuries and maybe professional hemorrhaging. So you may have a number of experts who may have a radiologist, maybe a new radiologist, maybe hematologist, maybe a pediatrician providing a general pediatric overview. Once these reports come in and these recommendations are in and opinions, it may well be necessary them to have a discussion between these experts And this is where we were 20 5.16 comes into play whereby in this case more times than I can be a child solicitor who draws up the dump the meeting and sets this meeting that were by the obvious synopsis of areas that parties agree on and disagree on in this regard. So basically what the child slaves from the Guardian will normally do. So I'll put this meeting together and they will then look to see what each of the experts say in relation to each of these matters and then I'll drop it synopses of a the areas they agree on the areas they disagree on going forward with a view to and helping the court in making them determination as to identifying gift injuries were caused other than to an accident. And also to identify possible who the perpetrator or perpetrators were. That's the meeting between experts in terms of written questions. Then this is where We were 25.10 comes into play. We can see here that this provides that when it does come to written questions, a party may put written questions about an expert's report to that person is instructed unless the course says otherwise these written questions must be proportionate and it can only be put one to the experts unless the course. Otherwise they've got to be proportionate. And you can only put questions once to the expert and they've got to be lodged within 10 days beginning with the date on which you've got the reports they have done you. So you can see there's that tight time scale there 10 days there. And the purpose of contacting the expert must be for a purpose only of classification of the report and you've got to be sending it and sending it to the other parties at the same time. So you can see you can only do it once within 10 days only for a personal classification unless of course as otherwise. So what I've done sometimes is when I've dealt with some of these hearings is this sometimes when I've been typing up the order under case manager or to order in a public childcare case. And we are instructing an expert because we want to keep the later on many moment also because we want to avoid a situation of having to corder expert unnecessarily to any final hearing and giving evidence where we could have actually dealt with those issues by way of seeking clarification or maybe written questions. What I've sometimes provided for in the order is something along the lines of if any party does seek to put written questions. The expert after a data file. England 25.10 shall be varied uh in that any questions to the experts shall we send and then he replies will be received by no later then. And then I put a date on that. And again I emphasised by saying this will be meeting for the purpose of clarification and not for the purpose of asking additional questions in that regard. So sometimes it's worthwhile maybe amending group 20 5% because member it does say unless the court says otherwise directs otherwise and so forth. So you can see it's important to be aware of this, it's important to then use it and then to make sure it works within obviously the particular case that you're dealing with now that then brings me onto the position with the various practice directions on instructing experts and as you'll appreciate there are a number of practice directions here which we need to be familiar with under practice directions and almost kind of give you meat on the bones, hold speak so if you are looking to instruction expert pre proceedings for example under the previous ceilings process Under the Children that guidance of 20 14 or in emergencies then there is still a protocol for that. So even in pre proceedings when local authorities are looking to instruct a particular experts. Very, very important. Even in that case of trying to agree a letter of instruction, appreciate some of you acting for parents in that situation, your funding may be very limited. You may have helped level one, you may have level two funding if the local authorities have already done the letter before proceeding so it does very doesn't it and then patches direction 25 b is the duties of an expert. So when you are the lead lawyer on instructing and experts, very important to make sure that your expert is a way of practice straight In 25. Be sending a link or print off before practice traction and send it to them because they do distance outside their duties to the court and to the people instructing them for example, even though they may have given you their final report once you then send them the information from the other experts, they need to consider that and if based on what they've read or to become aware of any study which goes against the report to do the avenues to bring that to your attention because their duties ultimately to court and not the party's instructing them. There's also in practice direction 25 C which is a duty would then have as the lawyers who found a lawyer who's taking a leader in terms of instruction Expert PDF 25 C gives me a lot of useful information about what I can do before I even instructing expert, what information I can give them what the letter of instruction should like look like. One of these structures them on my duties as the matter progresses until such time as we've got to report and also what happens thereafter and practice direction 25 is really useful in relation to discussion between experts as I just mentioned earlier, right that now brings me on to the position with the guidance on remuneration of expert witnesses. Now this guidance is routinely updated as and when necessary. And the last update On this was September 2020 Version six. That's the current version we've got at the moment and I'm going to be looking at this guidance shortly I'll give you some examples but before I do I think it's very important to be clear about participation directions. These are Practice direction three A and this is what came into effect in November 2017 which basically takes the form of re emphasizing the benefit of special measures and making sure that this takes the form of participation directions in family cases. So to give an example if you're involved in say a public Children or case and say you've got a situation whereby mother has got say letting difficulties or appears learning disabilities and that's why it's important to get a cognitive functioning assessment done maybe by psychologist. They will then be asked to give an opinion as to what support they would. The parent may need to help them to participate, pursues and to communicate. And that's where they may recommend actually this person needs the benefit of a lay advocate to help them with meetings, discussions and then also an intermediary at core in relation to the actual communicating between them and the court and when they're giving evidence otherwise and that's where what I would suggest. It's very important to make sure that you not only draft these participation directions clearly. So whether it's a child arrangements program, perhaps a private law CMO the case management order in public law cases, not only should you draft these clearly, but secondly, make sure that you're familiar as to what type of participation directions are available. And in terms of the guidance of remuneration of expert when it sees this guide instance sets out amongst other things the position with probably authority applications to instruct experts and also what the salary rates are for various types of experts. So it's got a table on there as many of you are not. And you look at that table which tells you what type of fees the expert will be paid if they are instructed by the cord and then you can go beyond that if you can satisfied the legal entity that's necessary and that's where prior authority applications coming. But as of september last year there were further changes to this so that for example there is these additional 10 hours which are available if there are additional parties in the recommended hours for psychological psychological assessment. So for example, there is a psychological assessment, not just a mother or father but also say of another family member And one can ask for 10 hours additional to enable that additional party them to be assessed. Also when it comes to documents that need to be translated then as long as a court order lists those documents which would be translated then the legal agency will be able to fund that. There's no need them to apply for prior authorities. So that was the other amendment that came in last september and then there was the other position surrounding uh the issues for any clarification on the use of intermediaries and lay advocates. And I'll come back to that shortly when I refer to the case of we see and we see number two. So I mentioned that thought shortly and the other is there was clarity that when you are looking to instructive process over to serve then you can use three. You can basically have three attempts by process services serve but anything more than that you need to justify why that is And there was a guideline rates and X57 and the actual rates which experts can be paid. Okay. So is that provision now that then brings me onto the position surrounding special measures? And this is where So you are involved in a case then where say mother or father have got maybe learning disability and this is where there may be a need for them to have an intermediary to help them to communicate in court in the way they are able to put forward their their position in court or when they are being asked questions in cross examination or examination. Otherwise with intermediate will be able to rephrase the questions and help them to understand and to participate. But the issue is one of funding. So how would these experts be funded? And this is where this old case of greedy A child. # two the then president family division Made it very clear in paragraph 17 notice judgment that the costs of funding and intermediary in court. So actually in the courtroom itself for was on H. M. C. T. S in that regard. Because of the legal aid agency said an intermediary is not a form of representation but a mechanism to enable political to communicate effectively and therefore it's analogous to translators, interpreters in that regard and therefore should be funded for by the court. However, if the services of the intermediary required other than going to court hearings or maybe in the court building or doing conferences with you or maybe assessments or otherwise, then the cost will that should be falling on illegal aid agency. So that's what this case decided. And this is where I'll come back to those pointers shortly. When I look at the two cases we see and we see number two. But the other thing you need to bear in mind is make sure you are familiar with the difference between therapy and assessment. When it comes to instructing experts. As I mentioned, it's very very important and when you are looking to instruct experts to be clear as to what is it exactly that is being assessed. So if it is there a beauty work that's been asked to be funded and the court has no authority to order that. It's as simple as that they can only authorize assessment. But if the assessment doesn't for elements of therapy within it, as long as it's globally and majority of it is the form of assessment and arguably can't come within the remit of the court direction in that regard. And this is where there's been cases on that. So there's a case of re be for example, really be this 1999 case. We're here if there was a need for this therapeutic work to help the parents to address there disabilities for example. And that's not something that the court can actually direct. And we see was another case in 1990 seven which made it very clear that the court only had jurisdiction and toward an assessment and not therapy in that regard. So if it wasn't part of local authorities planned under court not have authority to direct that in that regard. And a more recent case on that was the case of re y and in this particular case, this is one whereby the mother wanted to enter a particular detoxification Drug unit which basically is one where she resides in that unit For about 3-6 months with her child emplacement and it's a detoxification program. So the aim is for you to help too reduce these act. It's a chronic a dependency on the drugs that she was. And she saw this to local authority of polls. So she put an application in via 38 6 for this And the judge did say that in deciding an application under 38 6 which does involve a child of course in these circumstances with the child emplacement first and foremost on how to be satisfied that this does take the form of an assessment That forwards within Section 38 6. That's the first thing. It's got to take the format of an assessment and if it does then I can direct it. But if it doesn't if it's principally therapeutic in nature, I simply cannot direct. That's the first thing secondly, even if it is principally an assessment, if it is an assessment then I have to be satisfied. It's necessary to assist the court to resolve the procedures justly as required by Subsection 7 8. So that's the first bit. So you have to satisfy section 38/7 A. Of the Children Act, which is you have to be sure that this assessment is necessary to assist the court to resolve the persons justly and then the second parties in being able to demonstrate That you have to look at the criterion under section seven Be. So basically section 38 seven be essentially. So it's going to be section 38 seven B of the Children. And that's what you're going to have to be looking at and looking to see whether or not to allow the assessment. And that's really, really important because sometimes you find that lawyers are not always clear is It's section $13 Children families actually be looking at or is it going to be section 38 of the Children acting like safe? It's an assessment principle of the child maybe like so residential then you should be taking A judge through a list under section 38 7 B of the Children. So that's where that comes in. As I mentioned then there is then the issues around the payment for special measures or payment for for example, intermediaries And lay advocates and this is where then we have these two cases. So the case we see 2019 and we see number two and what both of these cases then very much we're looking at is if as in these cases, a judge mr justice keen felt that the parents concerned did need the benefit of a lay advocate than who would be funding the cost of that would be the court, would it be legal aid agency or would it be the local authority? And do we put the lay advocate who is then we're going to be playing a role in terms of not just in court, but also at meetings and assessments who would be funding them? What blocks a B a court, whatever illegal. I don't see what about a local authority or otherwise. And we See # two, basically clarified this by saying, Mhm Cts were funded provision of a lay advocate in appropriate circumstances for party at court hearings. So just like the intermediaries, if the lay advocates needed in the court bloom itself, then hmcs can fund that. But if delay advocate is required in the court building or maybe it was those assessments being done or meetings between the lawyer and declined, then some fella that should be funded for by the legal aid agency. As long as the legal agency are satisfied, that's reasonable and necessary. So it does come back to the necessity test again. So, the legal agency will fund the provision of his lay advocates satisfied it's justifiable reasonable dispersement to a system in communicating with the lawyer. So that's where that provision comes in, but if it's actually in the court building, the hmc T s in the courtroom rather hmcs, you'll be in a position to be able to fund that in that regard. Okay. Right, okay. So you can see, I've covered a number of issues over these two sessions, looking at the position with instructing experts. So you can see, we've looked at some detail, looking at a different types of experts. We've looked at how part 25 comes into play. We've looked at them. The contrast between section 13 of the Children Families Act in Section 38 6 of the Children Act. And you can see the distinction very much lies on whether it's an assessment principle of the child or otherwise. So that's the first thing I've then spent some time going through with you. The necessity test in both cases, the criteria to judge takes an account what you need to be doing before You look to instruct experts, the various practice directions. 25 8 25 b. 25 c. 25 d. In particular and then what you should be doing if you're the lead lawyer in terms of sending papers to the expert action, have to find a hearing the process of written questions for example. So very very important to bear that in mind. And then some of the more recent guidance surrounding the instruction of lay advocates and intermediaries and also d legal aid agency. Women are asian guidance in terms of payment in that regard. So the need for prior authority so that if you want to instruct a particular expert and they're going to be charging more than what the alley rages, then that's where the guidance would say that one should be looking at seeking prior authority in that situation from the legal aid agency. Okay, I hope that's been a useful session for you. Thank you very much indeed for listening. And I speak to you next time. Thank you very much indeed. Bye for now.
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