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Part 25 Applications – The theory and the practice

Marie Crawford, barrister, Becket Chambers considers the disconnection between theory and practice in making applications to adduce expert evidence.

Marie Crawford, barrister, Becket Chambers

Marie Crawford, barrister, Becket Chambers

It could be argued that the subject of applications under Part 25 of the FPR is not the most newsworthy area of family law at the moment, or the most attention-grabbing in terms of case law.

Having said that, there has been a recent Court of Appeal case on this very subject, which, even if it does not state any new principle of law in relation to Part 25 applications, is factually interesting and makes clear that the procedural requirements of Part 25, along with the statutory criteria, must be satisfied before such an order can be made.

In Re C (A Child) (Procedural Requirements of a Part 25 Application) [2015] EWCA Civ 539, the Court allowed an appeal by a litigant in person (father) who had been ordered by the Tier 1 Family Court (hearing an application for a child arrangements order) to undergo a psychological assessment without a Part 25 application having been made (save orally by mother's counsel at court) and without considering the necessary criteria. This decision was upheld by the circuit judge but was considered to be 'unlawful' by the Court of Appeal.

The Court of Appeal held that the circuit judge's approach to the appeal of the magistrates' 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).

Whilst this is not groundbreaking law, the decision is noteworthy because we family practitioners grapple with case management issues such as this fairly frequently, whether we do private or public children's work (or both).

In addition, the courts vary enormously in how they deal with these applications and I am sometimes tempted to think that tossing a coin is as reliable a way as any other of predicting success in such applications (particularly in care cases).

The Law – authorities
So, where do we start? The court must have the best evidence (i.e. assessments) upon which to proceed. This was emphasised in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 where the Supreme Court stressed the 'stringent and demanding' tests required in care proceedings. Baroness Hale said it is 'necessary to explore and attempt alternative solutions' (para 198). Lord Neuberger said that 'before making an adoption order in such a case the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support' (para 105).

In order for this to be done the court needs reliable expert evidence so that the court may properly scrutinise the local authority's care plans and consider all of the options open to it. This duty to examine the options so as to ensure that only a proportionate intervention is sanctioned was, of course, further explored in Re B-S (Children) [2013] EWCA Civ 1146.

The Court of Appeal in that case also emphasised (in the context of looking at how the PLO reforms would affect the family justice system) the need for proper analysis, argument, assessment and reasoning: '….what the court needs is expert opinion, whether from the social worker or the guardian, which is evidence based and focused on the factors in play in the particular case…' (para 48).

Family Procedure Rules
Rule 25 of the FPR (2010) 25.4(3) (pre-22 April 2014) stated that the court may give permission 'only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings.'

This provision was amended and one important word was added by s.13 of the Children and Families Act 2014, which states: 'the court may give permission…only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly' (s.13 (6)).

'When deciding whether to give permission …the court is to have regard in particular to –

(a) Any impact which giving permission is would be likely to have on the welfare of the children concerned…and the impact on the child of any assessment of them,

(b) The issues to which the expert evidence would relate,

(c) The issues with which the examination or other assessment would enable the court to answer,

(d) What other expert evidence is available (whether obtained before or after the start of proceedings),

(e) Whether evidence could be given by another person on the matters which the expert would give evidence,

(f) The impact which giving permission would be likely to have on the timetable for, and duration and conduct of the proceedings,

(g) The cost of the expert evidence, and

(h) Any matters prescribed by the FPR.'

That is all well and good, but the important fact, which is often forgotten these days (particularly as it seems to have been dropped from the commentary in The Family Court Practice), is that the overriding objective of the FPR must be complied with  (see Re TG (Care Proceedings: Case Management: Expert evidence) [2013] EWCA Civ 5). Remember the 'overriding objective'? When the new FPR 2010 came into force it was talked about all the time. I like to think of it as a trusty old friend and it is extremely useful in these applications, because it effectively brings fairness and equality back into the mix.

It is set out at Rule 1(1) and (2) –

'(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly,having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) Ensuring that the case is dealt with expeditiously and fairly.

(b) Dealing with the case in ways, which are proportionate to the nature, importance and complexities of the issues.

(c) Ensuring the parties are on an equal footing.

(d) Saving expense.

(e) Allotting it to an appropriate share of the courts resources while taking into account the need to allot resources to other cases.'

Further case law
In Re TG the President, Sir James Munby, also stated:

'Whether applying the present test or the new test, the case management judge will have to have regard to all the circumstances of the particular case. The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks.' (para 31)

The President pointed out that the judge must also consider the provisions of the FPR Rule 25 when exercising that discretion.

In Re B (A Child) [2013] UKSC 33 the Supreme Court highlighted the need in care cases for the court to be presented with the best possible evidence upon which to make the decision. Decisions which require the 'highest level of evidence'. This is in addition to the requirements of Articles 6 and 8 of the ECHR, which are significant tests in themselves, in relation to the need for rigorous investigation and examination by the court in order to ensure the right to a fair hearing and the right to a family life.

It is important to reiterate Articles 6 and 8 in full, I find, because familiarity can encourage us to take their terms for granted, making cursory reference to them, when in fact, they are a treasure chest of protected rights that we have to use to the full to the advantage of our clients. What could be more potent than the right to a fair hearing and the right to a family life? I am not proposing that we start making lengthy submissions at court about the Articles but we should not forget their significance.

In Re Z (A Child: Independent Social Work Assessment) [2014] EWHC 729 HHJBellamy, sitting as a High Court judge, held: 'In any case in which a local authority applies to the court for a care order, the assessment of the parent is of critical importance. That assessment will be a key piece of the evidential jigsaw, which informs the local authority's decision-making, in particular with respect to the formulation of its care plan. If the assessment is deficient then it is likely to undermine the reliability of the decision-making process. It follows from there, that any assessment of a parent must be, and must be seen to be, fair, robust and thorough' (paragraph 130).

In Re S (Children) [2014] EWCA Civ 135 the Court of Appeal upheld a successful appeal against a judge's failure to order an ISW assessment in order to update the court of any change in circumstances since the earlier assessment and also to comply with Re B-S despite the fact that this would cause some significant delay in that particular case.

When considering the authorities, it may seem that there is a disconnection between what the Court of Appeal is saying and the reality of what the courts are doing 'on the ground'. Whilst the authorities from the Court of Appeal and Supreme Court are without reproach, it is certainly my experience (shared by other practitioners, I believe) that the courts remain very reluctant to order expert reports in spite of them.