A (A Child: Appeal: Case Management Decision: Identity of Expert), Re
[2024] EWHC 1669 (Fam)
N (A CHILD) (INSTRUCTION OF EXPERT)
6 December 2022
[2022] EWCA Civ 1588
Court of Appeal
A dad didn't want a female social worker to assess his child custody case because of his religion. The judge chose a woman anyway, and a higher court agreed, saying the dad hadn't made his case well enough and the judge made a good case management decision. The judge had to consider lots of things, including cost and how quickly the report could be done.
Key Facts
- •Appeal against a case management order in private law proceedings under the Children Act 1989.
- •Order permitted instruction of a female independent social worker (ISW) for assessment.
- •Appellant father objected, arguing infringement of human rights due to his Haredi Orthodox Jewish beliefs and discomfort with female professionals.
- •Father initially proposed a female ISW but later changed his preference to a male ISW.
- •The lower court judge appointed a female ISW, Ms. Marcano, citing qualifications, cost, and timeliness.
- •Father appealed, arguing breach of Article 6 (fair hearing) and Article 9 (freedom of religion) rights.
- •Subsequent to the lower court decision, the father's chosen male ISW, Mr. Power, became unavailable.
Legal Principles
Overriding objective in Family Procedure Rules (FPR) to deal with cases justly, including saving expense and ensuring expeditiousness.
FPR 2010 r.1.(1), FPR r.1.4(1), FPR r.1.4(2)(e), FPR r.1.4(3)
Appeals from case management decisions are allowed only if the judge failed to consider a relevant factor, considered an irrelevant factor, or reached a plainly wrong decision.
Royal and Sun Alliance Insurance PLC v T & N Lts [2002] EWCA Civ 1964, Jalla and another v Shell International Trading and Shipping Co Ltd [2021] EWCA Civ 1559
In Children Act proceedings, the child's welfare is paramount, but this does not obviate the requirement for a fair procedure respecting the rights of those affected.
A (A Child) (Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221, R (Osborn) v Parole Board [2013] UKSC 61
Article 6 ECHR (right to a fair trial) requires parties to be able to participate properly in proceedings, including access to expert evidence.
Letincic v Croatia (app 7183/11, 2 May 2016)
Article 9 ECHR (freedom of religion) protects the right to manifest one's religion, but this right is qualified and requires evidence of interference.
Re M [2017] EWCA Civ 2164; R(Williamson) v Secretary of State for Education and Employment [2005] UKHL 15
Courts should strive to obtain the best possible evidence, including considering measures to assist vulnerable witnesses or those with specific needs.
Re X (Disclosure of Evidence) [2001] 2 FLR 440, Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, Re S (Practice: Muslim Women Giving Evidence) [2006] EWHC 3743 (Fam)
Outcomes
Appeal dismissed.
The judge's decision to appoint Ms. Marcano was a case management decision based on relevant factors (qualifications, cost, timeliness) and did not infringe the father's human rights. The father failed to adequately raise or substantiate his Article 6 and Article 9 arguments before the lower court.