Family Law Hub

In the matter of H (Children) (Appeal: Case management: Part 25 Expert Treatment) [2019] EWHC 237 (Fam)

In a tweet: Appeal of mother (“M”) dismissed on basis that case management decisions should only be interfered with at appellate level where there has been serious error on the part of a judge.

  • Summary: Here, we have an application for permission to appeal with appeal following immediately after. The proceedings were ongoing in respect of three children, who were made parties to the proceedings. Findings had been made against father (“F”) insofar as he and his family having been abusive to M, including a finding that F did not intervene to prevent the children being verbally abusive to M in his presence. It was also stated that a Cafcass officer had concluded that the children had aligned themselves with F and been exposed to adult influence.

    In August 2016, a final order was made that provided only for indirect contact as between M and the children. M was not accepting of the order made, and identified a family psychotherapist who was understood to have “considerable experience” in intractable contact cases. M applied pursuant to Part 25 FPR to release papers to the psychotherapist to assist with her assessment. The permission to release papers was recorded in a court order on the basis that it would enable the psychotherapist to “undertake a paper-based assessment as to whether the children and the parties can be assisted therapeutically…” It was made clear on the face of the order that the psychotherapist was not to assess the children at this stage.

    A few months later in January 2018, and following the psychotherapist’s initial assessment, the court made a follow-up order permitting the psychotherapist to observe M and the children in one session of direct contact, to provide an up to date report as to the progress made by the parties and the children and to include recommendations for any future work / progression of contact between the children and M.

    A third direction was made on 9 May 2018, as follows:

    “a psychotherapist to file and serve a report as to the progress made by the parties and the children in respect of the therapeutic program, to include recommendations for any future work and progression of the children’s contact with their mother, shall be extended to 26 June 2018.”

    The psychotherapist filed a report recommending that the children start to spend alternative weekends with M, with a Plan B suggestion that the court consider a transfer of residence. Following the report, the parties and psychotherapist agreed that psychotherapist would meet the children and M together. The meeting was unsuccessful, following which the psychotherapist communicated to both parties via email that she felt the F lacked insight, was conveying his negative views about M to the children and which they now held about her both in respect of the present and the past. She went on to recommend a transfer of residence, to enable the therapeutic work to be undertaken. This was followed by the preparation of a third report, which had not been expressly authorised by the court.

    On the back of the email and report, M applied for a child arrangements order for the children to live with her. F applied for the children to be joined, disputing the psychotherapist’s report and recommendations for transfer of residence.

    At the pre-trial review, His Honour Judge Levy concluded that the court’s January order, which gave permission for a second report, was in substance authorising the obtaining of a therapeutic recommendation and thus non-Part 25 report.

    Held: M’s application for permission to appeal dismissed on the basis that the appeal had no realistic prospect of success.

    • The judge at first instance’s decision that the psychotherapist would be an expert of fact, but not an expert of opinion, would be maintained. The reports could feature in the bundle in so far as observing what happened in the sessions, but there would be no requirement for live evidence.
    • The task of the psychotherapist was therapeutic and to recommend further therapeutic work – the substance of the work was therefore in relation to therapy, as opposed to an expert assessment. The report was therefore a factual report in terms of its forensic status as opposed to a part 25 expert report.
    • The third and final report was prepared at the parties’ request without any authorisation by the court. That report could only be considered as a report from a treating therapist (per para. 45).

    Comment: The judgment raises some interesting practice considerations.

    • The appellate judge was clear to point out that “Part of the process of family litigation in the modern era is vigorous case management by allocated judges who have responsibility for the case they are managing. This court can intervene only if there has been a serious error, if the case management judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals.” The threshold for intervening in a case management decision is presumably therefore higher than for hearings involving the substantive application.
    • What is the difference in reality between evidence obtained pursuant to part 25 and other “expert” evidence? This boils down to the weight and authority the court can place on expert evidence obtained pursuant to Part 25 FPR 2010. Greater weight can be attributed to the evidence of an expert who has complied with the rigours of the Part 25 process.
    • Always be mindful of what you are actually seeking from an expert, and its purpose, and thereafter of how things evolve. Ensure the status of the expert is set out expressly on the face of the court order, and in the letter of instruction, and also state clearly the intention/purpose behind any follow-up work, even if all the parties consent. In this case, no follow-up letter of instruction was sent to the expert setting out precisely what was required and for what purpose. The standard Part 25 rubric in a letter of instruction does not automatically mean the report is to be considered Part 25. The judgment suggests that it may be possible to apply retrospectively to seek to rely on a report as a Part 25 report – if there is any ambiguity, don’t leave it to chance!
    • Careful thought should be given to letters of instruction. The expert was considered by the first instance judge to have strayed beyond their remit. Ordinarily, if an expert is being asked to comment on something as significant as a change of residence, it must be contained in the letter of instruction, together with a list of appropriate questions.
    • In determining the nature of the assessment, the judge referred to the position in public law cases under s.38(6) Children Act 1989. An assessment will only fall within the parameters of that section if the assessment is the true dominant purpose of the report and therapy a secondary component. Whilst such assessments are not entirely analogous to the sorts of private law assessments it does illustrate the distinction that should properly be drawn between part 25 expert assessments and the conducting of therapeutic work and reporting on the outcome (per para. 31).
    • With all the above said, if the trial judge does not agree with the court taken by HHJ Levy, and the view of Mr Justice Williams, it is open to her to deal with the matter differently!

Case note, published: 23/09/2019

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Published: 23/09/2019

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