Instructing Experts in Children Cases

An important Children Law refresher in regards to instructing experts in Children cases.

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Course Overview

Lawyers in family cases will often be called upon to instruct experts in children’ cases.

Experts are often relied upon in both private and public law cases. Practitioners need to be aware of the law surrounding who to instruct, how and why.

There is often confusion over the procedure and procedural elements, which will be explored.

There will be a consideration of Part 25 FPR 2010, and its relationship with Children and Families Act 2014.

There will also be consideration of the developing case law in this field and recent guidance from the legal aid agency as to payment of experts’ fees.

What are the requirements?

Watch the recorded webinar and review the documents
This course provides 1 CPD points

Learning Outcomes

On completion of this course you will:
Explore the procedure and procedural elements
Consider Part 25 FPR 2010, and its relationship with Children and Families Act 2014
Consider the developing case law in this field
Consider recent guidance from the legal aid agency as to payment of experts’ fees

What is the target audience?

Children and Family Law practitioners

Keywords

Instructing Experts in Children Cases

Instructing Experts

private and public law cases

Public Children Law Courses

Private Children Law Courses

procedure and procedural elements

Part 25 FPR 2010

Children and Families Act 2014

Collections

About Instructor - Safda Mahmood

Safda is a senior solicitor, with a public authority, having had practiced in both Private Practice and Local Government. Safda is on the Law Society Children Panel and specialises in Children Law and Adoption. He delivers training across the country and writes regularly for various journals including Family Law Journal, Legal Executives Journal and Law Society Bulletin.

Course Curriculum

Section 1: Session One

Webinar

An important Children Law refresher in regards to instructing experts in Children cases.

Hello and welcome everybody very pleased to welcome you to today's session through data law. My name's after Mahmoud and today that I'm going to be speaking to about the area surrounding instructing experts in Children cases in particular. Some of the case law guidance and also in general procedures. And this session is split up into two parts of this Session, one which I'm looking at them and and there'll be a second part going through somebody other elements with you and In each session which were lost about 30 minutes each. I'll be going through some of the key parameters that you need to be familiar with when you are looking to instruct experts like say principally in Children cases and as you'll appreciate experts often relied upon in both private and public Children or cases. So you need to be familiar with who can instruct what type of experts there are. How do you instruct him and why? And I'm going to be going through with you some of the procedures and also looking at the inter relationship between part 25 found procedure. Who's had his ties in with the Children families after 2014. And how distant ties in with section 38 6 of the Children act in particular. And we'll look at the issue of funding as well, particularly when it comes to lay advocates, intermediaries, translators and all sort of position with private authority applications. All right. So a number of things to look at of the course of decide to half sessions and we're looking at this as of September 2021 and a lot of the case law and statutory provisions that refer to have put the copyright acknowledgement here for you. Right. So one of the first things I wanted to really ask as a question and is the type of court appointed experts because as you imagine, there'll be a number of experts that we may have to utilize and we need to be clear about who's out there, who may be used and for what purpose and therefore what kind of experts maybe we'd be looking at and utilizing therefore in a particular Children law matter and therefore starting with for example, a pediatric hematologist. Now human Ecologist is somebody who would then be able to advise us on matches as to perhaps the cause of bleeding. So if you've got a child involved in site cape ceilings with a child's sustained head injuries for example. And uh say original imaging for example, the subject of hematomas, directional imaging, those type of situations. And sometimes we may need to get an expert opinion from human Ecologist to advise on the cause of the bleeding. In many cases involving Children where they are concerns us to their general health development and medical development. You may find that we need to be referring to the need for report or information to be obtained from a pediatrician and the pediatrician can give you information as a Charles, general health development and general health. So in terms of obviously growth patterns wait general development in so far as their physical development and general health generally. So obviously in these cases where main remaining in general pediatric all review, for example. Now in relation to the new radiologist, this could be where let's say you have got a situation where a child has sustained maybe skull fracture, subdural hematomas which the human home in the head area of retinal hemorrhaging. These types of injuries are often associated with but not always with cases where Children have been vigorously shaken or where the child has been involved in a high speed rail traffic accident for example. And the membranes between the skull and the brain could sometimes rupturing those circumstances and lead to a subdural bleed. And that's where we may need a new radiologist to give an opinion on that. That's where they were coming. And it is also a pediatric neurosurgeon, for example, who can also advise then specifically for Children on matters relations subdural hematomas in particular. Then there's a radiologist. Now this is where by then we may need to have the service of the services of a pediatric radiologist. He or she will then read skeletal surveys. MRI scans, for example. CT scans and an adviser on matters related to a breakage fractures brains for example. So if you've got child who sustained a fracture learn, for example, in circumstances where the cause of the injury may be somewhat suspicious. The parents may say it was an accident. The medics first instance maybe suggesting that injury may have been caused other than through an accident. That's where you may need expert evidence in the form of maybe a pediatric radiologist giving your opinion. And sometimes maybe an orthopedic surgeon perhaps in those situations. And then there's a pediatric metabolic consultant, for example, who can then give you specific advice. So adding possible testing for metabolic disorders, for example. So that expert may be needed. And then there's a pathologist, forensic pathologist where if suddenly we've had a case where a child has died, for example, in circumstances which are then suspicious, then this is where the forensic pathologist will then carry out a post mortem and give our viewers to a possible cause of death. So some of them will know about the SIDS not which stands for a sudden infant death syndrome. The so called cot death situations where sometimes you may find that in those circumstances if the cause of death is regardless suspicious. That's when a pathologist may then be in structured to then give an opinion to call to help them determine cause of death in those circumstances. We've then got other types of experts sort of might be a need for a genetic system. For example. And geneticists are very useful in terms of giving you an opinion on that chromosome chromosome abnormality and due to deficiency, for example, maybe give you an opinion on that and then that in turn with an assist in so far as maybe the injury, the chance of stand sustained order or the child's general health development, which made and explain that actually it's not that parent has caused the child harm. But actually this child may have a gene deficiency, for example, which may explain this in those circumstances. And then we've got perhaps two of the more common experts which we may get in Children cases. A psychiatrist, for example, I can give you an opinion in terms of any diagnosis of any for mental illness, addiction, for example, any form of addictive behavior, any personality disorder. When a psychiatrist, you'll find that you would often be inviting them to give you any diagnosis and it may be a prognosis and treatment plan as well in that regard. And then there's also a psychologist who can often be structured to do a cognitive functioning assessments on assessment as to a person's intellectual functioning. To see if there's any learning disability in that regard. And then also the psychologists maybe doing a full psychological assessment where you're assessing a person's functioning generally and their behavioral traits, why do they behave or how do they behave the way they do in certain situations and why? Why do they react the way they do in those circumstances? So you may find that sometimes an expert looking specifically at that may well be necessary in the circumstances. So that's where that's where that provision comes in as well. Okay, so you can see a number of different types of experts which were made and have to draw upon when you're dealing with Children cases. Yeah. Now with that in mind this is where we need to think about the court order itself. So when we actually drafting the order, when we're putting that together, this is where this is relatively old but very useful case of a local authority in DS is 2012 decision. And what this particular case remind us about was that in certain these type of situations it would be beneficial to make sure that the court order reflects exactly what it is. The court would be. I've been instructed to give an opinion on and then to obtain evidence on. So this is where Sir Nicholas Ward, the former President of Family Division, is set out in his judgment, the wording that you should be putting in these orders when instructing experts. So, for example, if you are looking to instructs a radiologist, for example, that at that stage, his lordship did say that you would need to have in the order of a court order certain wording, so that this thing coincides with the Legal Aid Agency or the Legal Aid Services Commission as it was then being satisfied that the instruction of this expert was necessary. So some of the wording could be along the lines providing that the proposed assessment and the report by this expert is vital the resolution of the case or sometimes you may have that And secondly, the case exception on his facts. So you may need that wording in the order as well. So that's the second provision there and then you need to put a provision in so far as the position that cost is concerned. So the costs incurred in the preparation of these reports of the report, it's both highly necessary. This holy necessary. It's reasonable and it's proportionate dispersement on the funding is difficult to publicly funded party, so making sure that the element of necessity, reasonableness and proportionality is catered for the orders or that the legal aid agency would then be satisfied after judges were deemed this as necessary, reasonable proportionate and that would then reassure the legal identity that this was indeed necessary under facts. And also setting out the position with the salary rates of the court considers the salary rate and the estimated cost of the assessment of reasonable in terms of the experience, qualifications and expertise and also such funded legal identity that the instruction ali's expert is in fact one Whereby they are an expert in that field and therefore, the field in which they practice on this particular expertise they are bringing to the table Is one which is highly specialist and there's no realistic prospect of finding an alternative expert would need expertise of that lower fee at a lower fee. So you can see some of the key wording that we would need to put in in the the order. Now, this is where, since that judgment in India's, many of you will be aware that the previous President of Family division in line with the uh the family procedure committee did actually put together these practice guidance, standard orders. So these are still standard Children and other orders and these were put together like they would by the President of family division and these are fantastic. You know, these are really good. Many of you will also use these and these are standard orders which then actually set out the wording that you require when you are looking to instruct experts and indeed put together directions for maybe orders in that regard. So it sets out the wording and you can see when those of you who have used these, you'll see that these of a synonymous to the type of wording that uh Sir Nicholas Wall actually referred to in the case of a local authority and DS. Now that then brings me on to the next part, which is what are the actual rules and in relation to instructing experts. And this is where we've got to start with first and foremost, Looking at part 25 of the family procedures, which was put together of course, some years ago in the family procedures came into effect in April 2011 and part 25 when it was originally put together, related to the procedure element for instructing experts in both Children and indeed finances and other matters within family law. But since the Children families are came into effect In 20 UNDER 22 April 2014 In particular, the elements of Part 25 have been somewhat branched off so that we have some elements of it which are more pertinent to finance case and some of it more or less relevant in Children cases. So therefore putting this together, you've got 25.2 subsection, one for example, which defines an expert as a person who provides expert evidence for use in proceedings. So it's a very loose general term there. So it is possible, for example, even as an expert as a lawyer, you know, if a lawyer is in structure to give an opinion on say what the immigration lawyers in a particular state, then that lawyer may then be instructed as an expert and then potentially could be giving evidence on that. So they are given expert evidence for use in proceedings so they can come within this definition as well. Unlike say, we do need to look at the relationship between Part 25 of family procedure rules and also Section 13 of the Children Families Act, we have to look at what the overlap is between the two of them And in so far as Children procedures are concerned, what real 25 two subsection 2 provides is that the test for instructing an expert in Children proceedings is Within the meaning of section 13 of the Children Families Act Section 13. Subsection nine. And when it comes to controlling expert evidence, it's such that the control of Children proceedings Is contained within Section 13 of the Children Families Acts. What happened back in April that year is a lot of what we used to rely upon in terms of seeking instruction under 2500 and 25 has now moved into insofar as Children are concerned, he was moved into a Children's Families Act. So when you are looking to instruct you are now in terms of the criteria, looking More side the Children Families Act of 2014. Mhm. Just before I look at what that is. Just before I actually look at what the criteria are. Let's be clear about and how the core exercises discretion in terms of when to apply for permission. So this is where you go look at 25.6 of the FPR so that's that then sets out when you need to be applying for permission. All right. And this has unless the courses otherwise, party must apply for permission. So, if you're playing under 2014, Children families like 2014, unless their courses. Otherwise, you should be looking to make Applications as follows. So, in part four proceedings, which is basically your care supervision orders in particular. So in part four proceedings insofar as practicable in other proceedings as well. No later than the CMH. So the case manager hearing, which under the pier load of public law outline practice direction 12, they should be between 12 days 12 to 18 and therefore if you are looking to instruction expert should be no later than the CMH insofar as we were back. Mhm. That's really important because what that would mean then is say I'm acting for mother and we wish to instruct an independent social worker. We should then have had by the time of the cmhc CMH two social workers parenting assessment. We should have had an advocates meeting. We should have discussed the fact that my client is seeking as a independent social worker assessment. We should have discussed why that is why she's seeking that. What kind of purpose and thinking behind that is, we should have hopefully reached an agreement on that if possible. Uh and if not then I would be looking to invite the court to make that direction. I should have lodged my part 25 application and then for that to be heard knowledge and the CMH of course there will be situations but that's just not practicable. So sometimes the local authority may start proceedings an emergency. They haven't done the parenting assessment, we turn up at the CMH and they haven't at that stage completed or carried out the parenting assessment of the parents. Well, you know, it's not gonna be possible normally than if you're for payment to ask for permission to instruct an expert to challenge the local authority parenting assessment because I haven't done this yet. So that's where you gotta let them do the assessment. And then it might be you put a provision or recycling the order that parents reserve the right to put in any application Pursuant to part 25. uh after the date Of the filing of depending assessment by the local authority. Even though this will be after the CMH. And therefore not in accordance with 25.6. So it may be worth noting that in the order sometimes in private Children or cases if you are looking to instruction experts should be no alleged under federal as the first saving dispute resolution appointment which as you know It was normally going to be listed about 45 if not no later than six weeks after issue. What and an adoption and placement seniors no later than the first directions hearing which if the court is going to list it for that should be within 28 days of issue and finance proceedings. You can see knowledge than the first appointment. So you've got the time skills there so far as that's concerned. And if you are therefore looking to lodge the application for instruction of the expert and we need to ask ourselves what the application notice will actually look like. So this is where you're going to be effectively doing your your C. Two and with that in mind it's important to make sure that in your application notice, you're setting up the field in which the expo is required to be instructed the name of the expert insofar as it's possible. And really you should have you should have actually come up with the name of course, like you're clear about who it is. Uh the fact that uh you've got details as to the level of expertise sort of cork and of course make a decision as to whether or not that person is or is not to be instructed in those circumstances. Obviously very very important to be able to to do that. The issues which the experts to relate to the questions to be asked is very very important to be upset out what other questions are going to be asking. So it's not good enough to simply say we want to instruct your sex. But you know, what are you going to be asking them? And for what purpose whether the expert evidence could be obtained from a single joint report otherwise, Uh and other matters set out impact destruction, 25 C or D. Okay. And also you need to be setting out a draft of the order proposed on the touch top and not to the application notice seeking permission. Well, it's very important to be able to I said that out as well. Right. Where do we stand then with matters related to copies of orders and other documents? Well, this Is where we were 25.18 comes into play. So let's say I am acting for say the mother or father for example in a care case. And let's say I'm instructed by say the the mother in that case. And I'm I've got permission to instruct a psychologist for example to then Carry out her four psychological Assessment of the mother. Now this is where rule 25.18 provider unless of course as otherwise a copy of any order document affecting uh Any expert filed with the court must be served on the expert by the party instructs them in the course of joint expert by the parties responsible within two days of receiving the order or the document. And that's really really important because two days isn't long as you'll appreciate. But that's what it requires of me receiving the order. So what I shouldn't be doing is if I'm the lead lawyer, what I shouldn't be doing is then uh if I'm the lead lawyer for instructional psychologist is I should be gathering my paperwork. What I shouldn't be doing is then getting it all together and sending it to him as a bundle for the first time shortly before to find a hearing and saying, well you read this and then come to court and give you evidence. I shouldn't be doing that because actually the expert needs to have these documents given to them ah in kind of do it fed format. You know some drip feeding them with the papers as they're coming through because they didn't have a duty to read these documents to consider them to give a view on them and and ultimately then to come back to me if they feel that these documents that have sent and and whether they have a bearing on the recommendation, they're more they have already made for example and they need to be allowed to come back and say that to me sooner rather than later. So if I'm delaying that by not sending the papers at them sooner than what I should have done, then that could be a problem going forward. So therefore bear that in mind And then there's the position with the action after the final hearing. So this is rule 25.19 which basically says that within 10 business days after the final hearing parties responsible for instructing the expert and if it's joint instruction and whoever is going to be responsible for instructing them there, I need to make sure that unless of course says otherwise, I should be sending the expert a copy of the course final order. That's the first thing secondly, a transcript of the court's decision And its reasons for making this decision and I should do this within 10 business days when I received your training transcript or record. Okay, so really really important. So if I was the lead lawyer on instructing, say the psychologist, it wants to The case is finished within 10 working days, I should be business days I should be writing to the experts say look here you are. Here's a copy of the final order. Here's a judgment or transcript the reasons and this is how the judge refer to your report. So for example, if the judge did raise any concerns about the report, obviously only to bring it to the attention of the expert or even if the judge was complementary or did refer to the report in some ways, should still be reporting back to the expert pursuant to rule 25.19 relies us where that comes into play. Now the next bit then I want to discuss with you is what is the actual test? And so if I if I have an enlarged my application to instruct an expert, say I'm going to be invited to court to give me permission to instruct an independent social worker on behalf of saying mother or father. So let's say that's the application that I have lodged. Okay, so the question then is what is the criteria that the court will then take into account in deciding whether or not to exceed to my request? Well This is where it will either be your Children. Families Act section 13 Or it may well be section 38. Subsection six of the Children Act of Age nine. And which one of these depends very much on what the format and the type of assessment. So for example, if it's an assessment predominantly involving a child. So if it's for example say psychological psychiatric assessment the child. Maybe even if it's a residential assessment which does involve a child emplacement with the parent or maybe it's a community based assessment with social worker will assess the child emplacement in the community, are in a family central in the family home. Then those types of assessments can take the form of a of an assessment via 38 6 other Children which takes the form of a medical, psychological other examination or assessment of the child. So those types of assessments Can come via section 38 6 of the Children active. Yeah, come back to those later. But then the other form of assessment is where say it's an assessment of not the child or not principally the child but save the parent. And this is where I say there's a request by mother for psychological assessment cycle, psychotic assessment of her, maybe a social worker visiting mother and assessing partially in the family home with the mother, father and sometimes part of it assessing the mother, seeing her alone and then seeing the dad and do it that way. And this is where I would be making that application and via section 13 of the Children. Families act. Okay. And then we're going to ask yourself has does the court and exercise their discretion. So I would have to satisfy the judge in this situation that the instruction in those circumstances is necessary to assist the court to his old proceeding is justly so that's the first thing you're going to satisfy the judge on the necessity test on the 13 6. But how do I convinced the court that it is necessary? Well this is where I would then make reference this section 13 subsection seven of D. Children Families Act of 2014 whereby I would have to emphasis the court that when deciding whether to give permission or not, the court has to regard to any impact which given permission would have on the wealth of a child concerned including an impact with that examination or assessment would have on the welfare of the child. Okay. Two issues which the expert would relate to itself to be very clear about what specific questions issues then that then it relates to. So that's the second thing. And then these are the other key things that the court would be asked to be looking at. So what the questions which of course is required to expect, expect to answer. So what questions hence that's why, as I mentioned earlier when I'm doing my application notice I do have to be putting together my questions so the judge can then go through doors and decides to decide which ones are necessary which ones are not which one should be answered by the expert which one should not and therefore that's a way of them making sure that an instruction is therefore proportionate and necessary in the circumstances. Sub paragraph D. Is very important. Which the judge needs to ask themselves what other expert evidence is available with obtained before after start proceedings. That's really important. So, for example, I am looking to instruct an independent social worker. First thing the judge will ask themselves is, well, is this evidence already available? Hasn't a social worker provided they have not got this from the Guardian? Or can I get it from the social worker? Can I get this from the Guardian? What if, what if they were to observe contact for example, and then to be able to comment on that. So, could I get it, you know, through those means? So that's where that question comes in next is where the evidence could be given by another person. So, again, as you've just seen what the evidence is already available, what evidence can be given up by another person in that regard. So, can I get this from the Guardian. Can I get this from the social worker, for example, and what's going to be an impact on which give information would have on the timetable, duration of conduct on the timetable? So, like for example, this assessment is director is going to take us outside of 26 weeks, for example, is going to cause unnecessary delay in finalizing the procedures for the child, which could be prejudicial. How long is the assessment going to take and has an effect on the conduct of the seniors generally. And of course another factor and has to be one of costs. So the judge would need to ask themselves what's going to be the cost of this assessment. If I do director who's going to pay for it actually causes it money that's worth spend any other matters by the family procedure rules will be taken into account as well. All right, you can see some of those things. So what I'm going to do now then is I want to spend a bit of time going through with you. The position surrounding sort of case law authorities which floor At specifically applications under 38 6 of the Children. And this is where I wanted to mention first and foremost a case of goth. So this is the Children k proceedings and this was a case where by you had two Children who were uh placed in uh in foster care, they were living at home with their parents beforehand and there was a babysitter who was babysitting the Children And this a bullshit allegedly sexually abused one of the Children. Ah police got involved and the parents in fact assaulted this babysitter who allegedly abused one of the Children's I assaulted quite severely thankfully the person was injured and what was survived and the parents were then convicted and charged and convicted and were involved in therefore serving a prison sentence and this is where the Children were placed in alternative care. Now when the local authorities intervened and started cape ceilings, they wanted to assess the parents when they were in a position to be able to be released from prison. And the social could carry out an assessment will be the assessment in the form of a core assessment as it has been those days, which is what nowadays is referred to as a single or combined or consolidated assessment, what is always work, which amongst other things does look at. For example, the the parenting capacity of parents when the social worker is carrying out the assessment, they saw the mother only as Part of that assessment on one occasion and father wasn't seen. So it's a very weak incomplete co assessment and then later mother saw for there to be a further assessment, friendship or an application. And and in fact, the court took the view that any further assessment which mother was seeking here, even though it would give the judge further information than what was already available, it wouldn't be needed on the facts. So it wasn't touched an assessment which was needed. The kind of thinking behind that the court said was actually we've already got the benefit of some information from a psychologist which fills in the gaps. We've got information from probation. We've got hair strand testing. We've got subsequent social statements. So actually everything pulled together holistically gives me what I need to make an informed decision. So even though there was a fairly weak social work statement and co assessment, I was put together everything else pull it together, filled in the gaps insofar as that is concerned. And therefore the court did not feel that there was a need for further assessment in those circumstances. So this is where as you can see when the court is then looking to decide whether to allow the introduction of an expert or not, they are very much going to be governed by the so called necessity test. And this was laid Out in the case of VTG a child is 2013 decision whereby in that case, uh the then president of Family divisions for James Mumby did say That the part 25 was going to be amended that year so that the court would only be looking to allow to instruction expert if it was necessary to assist the court to his older proceeding. So the test for necessity was going to be that much more tighter. So it was only going to be in a situation was absolutely necessary. And if it wasn't going to get a judge or from the information of him of what he needed to make an informed decision and it wasn't necessarily that God then the court would not authorize it. The latest case of H. L. Very much confirmed that. And also in Hey charlie was said that we have to make sure that we do not uh blurred lines between a treating clinician and the court directed experts. So if as in this case, in that particular case of a child, it was a mother who sought two instructor geneticist to give an opinion on the injuries that the child has sustained and the bruises that the child had. Then the judge did say, well why can't we go to treating creation on that are able to be treated as an expert? Can we put the Mother and father's position to them can reform and instruct them pursuit part 25 and in that way get the expert evidence from them. So it's worth bearing that case of H. L. In mind. And since then there was this case of a county council and be this 2019 decision which did say that we mustn't blur the lines between treating clinicians and court to actual experts are treating clinician, one do give their report, they will be giving essentially information in the form of a statement of fact or certainly a witness statement setting on based on factor what they've seen, observed or have carried out. But in terms of opinion, if they are been asked to give an opinion as to what their view is on the particular circumstances than that is such that should be pursued apart 25. So this should be formally instructed in that regard to then be able to give that opinion and it is possible of course in some cases for treating clinicians to be appointed, has called directed experts, them to give that opinion to the court going forward. So that of course is possible and we'll be done in these type of cases and tied in with that. We've got this case of we a fee and in that particular case of March last year 2020, what happened was he had a particular child who was subject to care proceedings. Her parents had been involved at the local authority sometime beforehand, mainly related issues over neglect and home conditions, sadly suddenly tragedy hit this family because there was a house fire and most of the Children suddenly perished and this one child and the and the parents survived. And the local authority later started cape ceilings. Now within those keeps things. Of course, you can imagine the level of grief that the parents of a child was going through and within those proceedings. Um the court did say that of course, we do need the best possible evidence in the circumstances in this complex web of trauma uh that the child was going through and would continue to go through in terms of the future placement. And the question was they needed to be expert evidence given as to the impact of loss and trauma that this child had endured and had I was going to impact on them forming attachments and settling and with the family and the judge did say that both the social worker and the Guardian of course, plainly very qualified and well qualified and highly trained professionals but their expertise did not expand to expressing a professional opinion on the impact of loss and trauma at this degree in complexity. And really it was only an experience child psychologist retired trace that the court felt that that could be done. So they found the facts. The court did in fact invite the local authority to pursue the child psychologist, psychiatrist. And that in fact is what was done to enable that assessment to be done. So it is important to bear in mind that with the necessity test you do need to look at what form of assessment needs to be done. Who should do it? Have they got the expertise to do it. And if not do we then look beyond that if needs be okay. Can I thank you very much indeed for listening. The first session. I hope that's been useful for you so far. And when we meet up on the second session, I'm going to be spending more time going through particularly position with funding of for example, a advocates intermediaries and also we'll be looking at the the legal aid agency position in so far as funding generally is concerned. Hope has been used for session for you so far. And I speak to you very soon. Thank you very much. Bye for now

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Section 2: Session Two

Webinar

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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