Hello and welcome everybody. So, thank you very much indeed for joining me for the second part of this two part session through data law. This is the session then on instructing experts in Children cases, the criteria and key developments. So like I said, this is session two and uh I therefore be following on from where we left off with the the previous session. And as you know, with this, which is a one hour call split up into two sessions each approximately 30 minutes in length. What I'm doing is I'm taking you through some of the key developments and issues surrounding the use of court directed experts. So the last session you'll remember I took you through some of the learning objectives and also uh some of the uh the course summary. So last time I spent some time going through with you, uh the different types of experts. We have uh the recent discussions surrounding uh parental alienation and alienating behaviors, the use of psychologists in particular, in terms of protected titles. We also spent some time looking at the various types of experts you may have both in private and public Children law cases Uh And then uh I started talking to you about some of the steps in terms of then seeking to instruct the experts. So what to do before you instruct at what stage getting a letter of instruction together, compliance with the family procedure rules. As far as that's concerned the position with sending documents uh writing to the expert after the final hearing. And also specifically the development in the tests around in the instruction of experts under the Children Families Act 2014, we went through some case law as well. You remember the case of TG and also HL uh of 2013 and also the RE A V of 2020 in particular. So some of those cases today, then what I'm going to be doing is I'm going to be going through more detail with you today against some of the case law. Uh further case law, we'll be going through some of the practice directions. I'll be taking you through 38 6 of the Children. I can see how that ties in in this area. We'll look at the position with payment of experts fees, the remuneration of experts uh with this is and also the position with the use of lay advocates and also intermediaries to see how that area then also ties in with this. OK. So we're having a look at this and this area is particularly relevant for those of you who are practicing in Children law matters. And also general family uh law and practice as well. And I'm looking at the law as of September 2023 right? So now last time, then I did spend some time going through section 13 of the Children Families Act with you. So if you say you want a psychological assessment outside a mother, for example, then you're going to have to satisfy the necessity test on the section 13 6. And you'll take the judge specifically through section 13, 7 of the Children and Families Act of 2014. So we spent some time going through that. Let's now look at the other side, which is where let's say you are instructed to apply for a direction under section 38 6 of the Children Act. So what's this about? Well, this is where you may well be instructed now to apply for a direction by this, whereby it's a direction for an assessment uh or medical examination assessment of the child. That's essentially what you're looking at here. But in practice what you find that even though you apply for direction under 38 6, even though it is of the child, it will also typically in many cases involve a parent as well. So traditionally, the types of usage of 38 6 in particular has been where one has sought for there to be a residential assessment ie where the parent has wanted to go into a residential assessment unit with their child for the two of them or, or three of them, obviously, if it's both parents and the child, for them to live there with the child for say about three months, sometimes longer, they'll be in these purpose built residential assessment units, they'll be living there. Uh, they'll have their own bedroom area. Of course, there'll be communal dining areas and they'll be assessed. So they'll be assessed around the clock. There'll be quite a thorough assessment process. They'll be on site, social workers, therapists, psychologists, psychiatrists, other experts when necessary. And the purpose of this is it's an assessment, an intensive assessment of the parent, but with the child in placement, hence why we've referred to this as principally an assessment of a child in placement. And if say the parent wants 11 of these assessments, they feel that the assessment that the local authority have already carried out is not one that's perhaps as thorough as it should have been. Perhaps it's this an assessment that the parent feels they seek, they feel is necessary which is proportionate in the circumstances. And this is where if it's not supported by the local authority. Uh this is where then they may put an application via 38 6 in for a court to order this. So that's one use of 38 uh six of the Children, 38 6 could also be used in other ways as well. So for example, let's say the parent wants uh an assessment in the family home, whether through the social worker, whether through an independent social worker. So they're asking for the child to be assessed in placement in the family home. And hence in a community that's where 38 6 could also be used in that way, as long as it's principally and significantly involving the child. So there's that 38 6 could also be used where say it's an assessment purely of the child ie it's a medical psychotic or other form of assessment of the child. So you could take the form of say a psychological assessment of the child, a psychotic assessment of the child. So you couldn't even take that form at all. So this is where eg comes in this case of reg this 2020 decision. And essentially what happened here is this is one where whereby uh the matter was in the proceedings were within care proceedings. And the mother here uh had a direction which allowed her to have a residential assessment via 38 6. Now, the child had sustained injuries. It was a case whereby the court uh needed to determine the cause of the injuries, but that would not be determined until the fact finding or the composite hearing. So one mother was in the pool of perpetrators, the judge felt that really to ensure that a time between now and then could be used appropriately that a judge would direct an assessment via 38 6 in the form of a residential. So that was directed, the local authority did appeal, which was supported by the guardian. And in fact, on appeal, the court did allow uh the appeal and that's on the basis that the court said that any assessment as to attachment between a mother and a child didn't actually require residential as assessment. It's not what was needed. And the nature of any psychological assessment of the mother would differ markedly depending on whether she was in fact considered to have injured a child or not. So looking at the attachment, which is what was being sold, you don't need a residential assessment for that. And if there was a need for psychological to look at the mother's propensity to cause further injuries to the child, if indeed she did what the triggers, which led to this, how can she put preventative steps in? Well, you won't know what the format of that is unless you determine firstly, as to how injuries to the child occurred and whether it was mother who was implicated and that wasn't going to happen until later on in the proceedings anyway. So here it was effectively as the judge described it the the horse before the card and this is where this assessment, this residential it was premature at this 38 6 direction, it was premature. It wasn't even needed on the facts. And therefore on that basis, it had to be set aside. So again, you can see the, the thinking behind that insofar as that's concerned. Now, let's now have a discussion in so far as the position with apportionment of costs. So where do we stand here when, where we've got situations whereby uh we are at court and we are looking at the position surrounding uh the cost of assessments and who will be paying for these. Well, this is where we need to be clear about the legal aid agency's position on this. And this is where one of the earlier cases was this case of RE JG against legal services Commission and others. This was a 2013 decision. And what this looked at was the fact that if this was a private law case, we're here. Uh If the court does uh decide to uh require as in this case, a child solicitor to a 16.4 to entirely fund the psychological assessment, which was going to be of the whole family looking at the family dynamics. Then the legal aid agency would question. Well, why is it the one party is publicly funded is pick up the tab entirely and the other parties are not. So this is where when the matter went to appeal as JG and Lord Chancellor and others, the court of appeal made it very clear that it is possible to vary as to who pays and what amount. But the court does need to specify why that is. So the court can make directions as to payment of experts fees. And as in this case, for example, where the parents were litigants in person, uh, the child's solicitor was certainly funded through the public funding certificate for the child. And that's where as long as the court carried out a robust financial assessment and was satisfying themselves that yes, the parents cannot pay the costs and therefore the amount can and should perhaps fall entirely on the one party who's publicly funded. And as long as they do that, it's clear, then they can, uh, make provision for that in the order and the legal agency could of course honor that. So, apportionment of costs can be done, but it should be based upon the particular facts of the case. And there was in fact, no normal rule as such, which said that the costs were to be shared equally between the parties, particularly where as in this case, where you may have private Children or cases. And uh, you may find that, um, one or more of the parties is, is unable to afford any other fees whatsoever or not as much. And perhaps the other part of the fee should then be fell on to one of the other parties. And we sometimes do this as, you know, sometimes in care proceedings as well where sometimes as you'll see where, uh, 1 may apply for prior authority to cover the costs of a particular expert. If the legal agency do not grant a private authority. And despite the legal have been asked to review the decision, they still stand by that. Then that's where in accordance with this case of uh JG and Lord Chancellor and others of 2014, the court can then apportion the cost to say, well, what we're going to do is we're going to be asking the publicly funded parties to pay this amount up to this salary rate or to this amount. And then the shortfall, we will be inviting a local authority and then potentially making a direction for them to make up that shortfall if appropriate and necessary in these circumstances. But this is something for which there needs to be really discussions between the parties. It's not something that should be taken as read that the legal aid agency. So the local authority will be paying by default. There needs to be those prior authority applications made uh in the first instance, if uh if necessary on the facts. Now, some of the other things I wanted to discuss with you is the position surrounding written experts, written questions to experts. This is 25.10. This is very, very important and therefore, when you are instructing experts, it's very important to make sure that we make full use of this. I'll come back to this shortly. There's also a position with discussion between experts who are 25.16. So if you've instructed, say a number of medical experts uh particularly say in a childcare case, child has sustained multiple injuries. And you've got say a pediatrician, a radiologist, a new radiologist, a hematologist, you might need a meeting between these experts, often chaired by the child and guardian. And that meeting can then be used to enable the experts to see what they can agree on. So you do you draw up a synopsis of areas they've agreed on and disagreed on and that then makes it easier for a court and to deal with determination uh going forward, it's very important. Now, in terms of written questions to experts, then this is a very important part of uh running uh Children cases. And this is provided for within 25.10 of the F pr and this provides for the fact that a party may put written questions about an expert's report to the expert who's instructed and unless the court directs otherwise or there's a practice direction that says, otherwise, these written questions must be proportionate and can be put only once they must be put within 10 days beginning with the date on which the experts report was served and must be for the purposes only of clarification. And one must make sure that you copy in the other parties when you are selling this. So this could be where say we've got maybe a psychologist, let's say, who's been instructed, who's given an opinion on, say uh mother's cognitive functioning. And let's say there's a recommendation that she has done assistance in the form of um assistance to help with communication. But we want some clarification on that as to what type of assistance a psychologist is thinking. So either lead lawyer who probably will be if not any of the other parties could within 10 days not receiving that report, write to the expert or opposed to clarification to ask. Well, can you please clarify what you mean by that assistance? For example, is it an intermediary? Is it a lay advocate? What kind of expert? What kind of assistance is, is the psychologist thinking of? So you can see where this comes in also over the years now, particularly given delays in Children cases, the need to really bring delays down. Obviously COVID has had a huge impact. Courts have expected us to also use written questions even further than this. So for example, if we have instructed uh an expert and there is a court directed expert, then rather than calling them to give evidence, many of you will know that the standard orders that we use are standard Children orders order 8.2. For example, in particular, some of you will be familiar with provides that when you're involved in safe care cases and you're leading, you're getting to the Irh, it's very important for the parties concerned to make sure that in their position statement leading up to that Irh, they're set out specifically which experts which parties, they are looking to call to give evidence on why that is and the area of cross examination, but also specifically what they have done in so far as a position with written questions. So have to put written questions to the expert. Have they fully exhausted that? Why is it? They're calling that expert to give evidence. Why is it? They're not really putting questions to, to try and narrow down the issues and deal with the matter that way. So again, this is something that as you can imagine has continued to be developed and it's something that we should all be following uh as we deal with uh uh running these cases going forward. Now, as I mentioned earlier, there's various practice directions on the use of experts. So even before you're starting proceedings, so part of the pre proceedings process and even when you may need an expert in emergencies, you've got practice direction 25 A which gives us some very useful guidance on. So you've got that provision there. Once you do instruct the expert, then this is where it's very important for you to make sure that the expert is familiar with the duties that they will be bound by. So either in a letter of instruction or I would suggest send them the link, which refers to practice direction 25 B. So that sets out the duties of the expert, the expert's report, what it should contain, how it should be laid out and also arrangements for the expert to attend court if necessary. So again, very important to make sure that you alert the expert to PD 25 B when you are instructing them. Now, in terms of the process of you looking to instruct that expert, this is where practice direction 25 C comes into play and that sets out the position surrounding Children perceiving the use of single joint experts and the process of leading to the expert being instructed. So this sets out some very useful guidance of the practice direction on the steps you can take when you're looking to instruct the expert, ie what information you can share with them, what you can't share with them. Uh making sure that you're very clear with them as to the extent of the expertise, whether they are the right person for the job, what the questions are you going to be put into them, as I mentioned earlier, this is where particularly that guidance as from the first of June this year, relating to the instruction of psychologists put together by the British Psychological Service and H uh the um HC PC in particular, uh and uh the Family Justice Council in particular is very, very significant because it helps us to think about the questions we're going to be putting to the proposed expert before you then go and instruct them in those circumstances. So have a look at that PD 25 C also helps you to know then what happens as the case is being progressed, your communications with the expert as a matter is then progressing through court practice direction. 25 E is particularly helpful relating to discussions between experts in family proceedings. So this would be relevant as I mentioned, if you've got say a number of say expert witnesses, uh medical witnesses and you may then need to have AAA meeting set up between them to look at what can be agreed and what can be narrowed down in terms of the issues just to ensure that the hearing then is going to be as sign uh as uh reliable and as uh uh uh as effective as it possibly can. So as to ensure that all the necessary areas are fully dealt with and then you've got practice structure 25 G in relation to toxicology test evidence in terms of the, the uh the need for toxicology evidence and uh the manner of obtaining that. So have a look at that. Also, let's now look at the position surrounding the instruction of experts in terms of fees and also clarification on intermediaries and lay advocates. So this is where many of you who do public funding work will know that we've got the guidance on the remuneration of expert witnesses and this has been updated over the years. One of the key significant updates was the one in September 2020 which was version six uh there is also a version seven, that's the one of September 2022 that one's not as significant for childcare practitioners. That's more changing some of the provisions relating to some of the criminal uh agency fees. But the one of September 2020 version six was particularly relevant in terms of cinder position surrounding the payment of fees for intermediaries and lay advocates. So let me just kind of look at this in a bit more detail with you starting with this case of VD number two. And really what this was about and what this fell on is if you've got a situation where say you've got a care case and say mother's involved in that case and she's got say maybe a learning disability and a psychologist or psychiatrist or other expert may have identified that she could really do with assistance through an intermediary accord ie somebody who is there who is supporting that court in terms of, for example, communicating. So when she's giving evidence, for example, uh ensuring that the questions that are put to her are, are put to her in such a way that it's easier for her to understand them so that the lawyer is able to rephrase the questions, put them in a particular way. And this is willing to media will assist and also to help the mother when she questions are put to her, to enable her to be able to answer those by using different methods, which may be through speech, which may be through diagrams or otherwise. So that's where intermediary can obviously play a very significant role in so far as helping that person to be able to communicate and be communicated to uh in court. But the question is who pays, who pays for their attendance? And this is where in this case, read. The then president of the family Division said that the cost of funding the intermediary in court fell on her uh her honor, sorry, her Majesty's courts and tribunal service as it was then. So H MC TS because the uh president did say that legal aid agency was staged, an intermediary is not a form of representation but a mechanism to enable the litigant, a person to communicate effectively within the court process. So it's more analogous to translation and because it's a court then who arranges translators at court. Similarly, the court should then be arranging the intermediary in that way. But if the services of the intermediate required other than doing the court hearing maybe in the court building between the lawyer and the client, for example, maybe outside the court room uh and outside the court building, then that should actually be fallen uh and, and funded for through the legal aid agency. So that was the position then and this is developed further so that uh the issue of vulnerability in particular has been considered in a number of cases. Uh And I'm going to be looking at this in a bit more detail with you shortly. Now, one of the other things I wanted to pick up on is when say there are uh recommendations for there to be therapeutic work. Uh Then it's very important to bear in mind that the court doesn't have the authorization to be able to order that therapy via the Children Act or otherwise. So this was a point that was raised in the case of re J care proceedings. We're here. The court said there is actually a difference between therapy and assessment when it comes to instruction experts. Yes, the court can order an assessment but they can't order therapy or treatment in that regard. And this was also emphasized in the, in this later case of r why a child 38 6 assessment of 2018, this is one whereby the mother had been assessed uh by an expert who said that she had an addiction to hard drugs and as a recommendation that she engage in drug re detoxification work, which and there was a particular uh agent uh placement which was identified, which could offer her and her, her child and father the opportunity to go to that detoxication unit for about three months, they would go there and she would really receive this drug de detoxication form of therapy. She wanted that the legal agency wouldn't fund that. And she asked the local authority to fund it through her lawyers who refused, they said it wasn't part of their plan. And in any event, they said this fell on it being not an assessment, but in fact, it being therapy. So the mother made an application by a 38 6. And in fact, the judge did say that in fact, the judge couldn't order it because this was not an assessment, it was therapy and it was the therapeutic work which the Children Act and it simply does not allow the court to make a direction on. Even if it was an assessment, the court said, even if it was an assessment in its strict format, the court said on the facts, it wasn't something that they would have directed in any event. So again, you can see the significance of uh this case. Now, as I say, we've then got the discussions we've had surrounding the position with intermediaries and advocates, lay advocates. And this is where there's been the guidance given to family courts relating to the payment for special measures in that regard, as I mentioned earlier, uh if it's an intermediary that's required in a courtroom, then H MC TS can fund that. Uh but uh if uh if it's uh outside the courtroom, H MC TS hold order can fund that they're not obliged to. And if it's outside the court building again, although H MC Ts can fund, they're not obliged to. And that should really fall to a legal aid agency. But where do we stand with lay advocates, the intermediaries as we've discussed, play a pivotal role in assisting the vulnerable person and being able to then communicate at court as we've said. And hence, you've got various forms of intermediary services. You've got, for example, the commun community Corp themselves, you've got intermediary uh service, uh you've got triangle for example. So, so there's various forms of intermediary services out there which can assist. But what if it's a lay advocate ie somebody who's going to be instructed to assist, to provide emotional moral support, not just in court, but also maybe in the court building in the court room, also in meetings and also uh who will also assist the person in being able to again be able to provide that level of communication and understanding as well. Where does the funding for this uh lie? And, and how do we deal with this? Well, this is where there was the case of Re Clay Advocates the 2019 decision and then re Clay Advocates number two. And essentially what's been decided in these two cases was that if as in this case, which involved care proceedings, you had parents uh who were vulnerable. And the judge was of the view that they required lay advocates to help them in a supportive role, to help them to understand the proceedings and provide them with that support at court. And a judge did say that although this is something that possibly could be provided by lawyers. Uh They may not necessarily have the skills to provide this at the same level as what a lay advocate does. And in any event, very busy, publicly funded lawyers won't have the time to be able to invest this amount of time towards somebody to give them this level of support in these circumstances. So therefore, who pays for this? And his lordship? Mr Justice Cair said that this would be dealt with in the same way that it would be for intermediaries so that H MC Ts will provide a funding for a lay advocate in appropriate cases for party in the court hearing itself, just like you would with intermediaries. But if it's in the court building and not, not in the court hearing itself or if it's maybe meetings and as long as a legal aid agency are satisfied that it's proportionate and necessary, they can allow this to be incurred as a disbursement on the publicly funded certificate of that party. So that's the position at the moment insofar as the funding of lay advocates is concerned. Now, as I mentioned, the issue of vulnerability is a very significant one and therefore one that should be appropriately dealt with in proceedings. And sadly, there have been cases where sometimes this has not been fully and appropriately addressed and this was what was the case in this case of es and vulnerable party fairness of proceedings. Uh This case of 2022. The leading judgment was handed down by Lord Justice Baker and this was a case whereby uh a child had sustained injuries was in a family home and uh another child was in the family home and there were concerns that the child who wasn't the subject child, uh his mother had potentially caused the injuries. So she was brought into these proceedings as an intervenor. She wasn't the mother who was a mother of the subject child, but the mother of the other child who was in the family home at the time. So she was brought in as in as an intervenor that she was in the pool of perpetrators and uh she was required then to participate in the proceedings and give evidence. Now she had cognitive disabilities. Uh She had been assessed by a psychologist and who did actually uh as assess her and who said that actually she would be assisted by intermediary and an appointment with community court. The intermediary service would then be taking place to do that. Uh And um this is where community court would then be looking to assess her to see what kind of support she would be required. Uh The court uh in fact, nonetheless, went ahead and had the hearing. Uh And in fact, uh they made findings against uh this lady, even though like I say, there had been this report recommending this report by psychologist, he was recommending an intermediary and Uh So the fact finding did take place, the intervenor did attend the fact finding and she gave evidence remotely. Uh and this was during the pandemic and she gave her evidence, sitting alone in a room in her solicitor's office. Now, fines were made against her. She appealed and her main ground of appeal was she said that uh there was a certainly a procedural failing here in that the court had failed in not having had an intermediary court for her as was recommended by the psychologist. And that was, she said a significant failing on the part of the court. Now, the court did say that or did ask themselves, does the duty to allow for the duty related to vulnerability in terms of the provision of intermediaries, lay advocates? Does it apply just to parties or does it also apply to witnesses? As in this case? Remember she was an intervener and the court said the duty applies to both, whether you're a witness, whether you're a party, if you're a vulnerable person, you're entitled to the same level of respect and dignity in that regard to see whether or not you can participate in those proceedings. And if we extend to all parties in that regard, and it was almost invariably, it was almost invariably going to be that one of the parties or the representatives rather than the court who identifies that a party or witness is vulnerable. And here it was unfortunate that the lawyer had not been able to identify fully the extent of the interveners vulnerability, which then required and necessitated a need for uh the intermediary. So what the court decided was that it's significant that the issue of vulnerability is considered before cap scenes are started. The court said it can be difficult sometimes to identify vulnerabilities, particularly when as many of us were working remotely during the lockdown. It's very hard to be able to assess vulnerability when we were seeing people through cameras and over the phone. But as a matter of good practice, the court said that they should actively be investigating whether any issues of vulnerability do arise. And the responsibility does in fact fall on all parties to identify that if it is necessary. So when it comes to intermediaries, this is where you've got the most up to date guidance from the H MC Ts guidance on requesting a H MC TS approved intermediary assessment. This was last updated on the 24th of February this year. So have a look at that. That's the form that will be filled in to book the intermediary for an assessment uh for then the uh communication then to be provided at the hearing, right? So there we are. So that brings us to the end of this session and to this course. And hopefully, you've seen that uh I've covered a number of things with you in terms of the position of instructing experts in Children cases. I hope this has been a useful session for you. And as always, thank you very much indeed for listening and I'll speak to you next time. Thank you very much. Bye for now.
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