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Applications for expert instructions must follow the Part 25 procedure

Court of Appeal criticises ‘unlawful’ order for psychological assessment

In Re C (A Child) (Procedural Requirements of a Part 25 Application) [2015] EWCA Civ 539 the Court of Appeal has allowed an appeal against direction for psychological assessment where the application was not part 25 FPR 2010 compliant and was in some respects 'unlawful'.

In the father's s.8 Children Act 1989 application proceeding before magistrates, the mother's oral application had been granted for the father to "submit to a full psychological assessment", with provision that the expert instructed should be 'court accredited', a letter of instruction to be agreed, and the costs of the report to be shared by the parties. The mother had been represented by counsel, whereas the father had been a litigant in person and had limited English. No part 25 FPR 2010 application had been made. The mother had expressed concerns about the father's behaviour during time he spent with the child, but did not rely on any sworn evidence.  The CAFCASS Family Court Adviser had described the mother's criticisms of the father as 'frankly unfair' and told the magistrates that 'it is not clear to me that a psychological assessment will be helpful […]  I am not sure that there is a mental health problem here'. The magistrates' order was unsuccessfully appealed by the father to a circuit judge.

The Court of Appeal gave an unequivocal judgment in which the course taken by both the magistrates and the circuit judge was criticised, and the appeal was allowed.

The Court highlighted that:

(i) Both the magistrates and the circuit judge had ignored the statutory scheme that determines how applications for expert instructions should be made, set out in section 13 of the Children and Families Act 2014, part 12 FPR 2010, part 25 FPR 2010 and PD 25B (paras 24 – 29; para 33).

(ii) The magistrates' reasons were inadequate (para 22).

(iii) The manner in which the burden had been placed on the father to demonstrate that a report was unnecessary was 'simply wrong' and the entire procedure had been unfair to him (para 13; para 34).

(iv) There is guidance in existence as to how litigants in person can be afforded access to justice which had not been followed in this case (paras 14 – 16).

(v) It was also wrong for the order made to have been worded so as to direct the father to undertake a medical procedure; this violated an 'elementary principle' and was 'unlawful'. It was also was wrong to direct costs to be shared, particularly where those costs were an unknown quantity (paras 35 – 37; para 50).

(vi) The circuit judge's approach to the appeal of the magistrate's decision, that this was a case management decision which was an exercise of discretion which should not be interfered with, was a 'superficial approach to an important question of procedural justice' (para 38).

Both the magistrates' and the circuit judge's orders were therefore set aside and the matter was remitted for re-allocation by the family liaison judge.

The judgment and summary by Marlene Cayoun of 1 Garden Court Family Law Chambers, from which this item are derived, is here.

14/6/15