E (A Child) (Care and Placement Orders)
[2023] EWCA Civ 721
A (A Child: Appeal: Case Management Decision: Identity of Expert), Re
4 July 2024
[2024] EWHC 1669 (Fam)
High Court
A mom appealed a court decision about a psychologist to assess her and her child's family. The mom said a male psychologist would be harmful because of past abuse. The higher court agreed that the lower court didn't properly consider the mom's concerns and sent the case back to be decided again, suggesting a female psychologist instead.
Key Facts
- •Appeal against case management direction in private law Children Act proceedings.
- •Dispute over the instruction of a male psychologist for a global psychological assessment of a 12-year-old boy (A) and his parents.
- •Appellant (mother) alleged domestic abuse and coercive control by the Respondent (father) and argued that a male psychologist would retraumatize her due to past experiences of male violence.
- •Appellant initially appeared as a litigant in person.
- •Recorder Searle refused the Appellant's applications to discharge or vary the direction.
- •Appellant appealed, arguing the judge erred in failing to consider participation directions and the impact of the psychologist's gender on her ability to give evidence.
Legal Principles
Courts have a proactive duty to consider whether special measures (participation directions) are required, even if not requested by the alleged victim.
Bf v Le [2023] EWHC 2009 (Fam), paragraph 77
In case management appeals, the Court of Appeal can interfere only if the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.
Re TG (A Child) [2013] EWCA Civ 5, paragraphs 35-36
The court must adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions. The need to obtain the best possible evidence applies equally to assessments and expert reports.
In N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588, paragraphs 45, 58, 63
The court's only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way that best enables the court to assess its reliability.
Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, paragraph 36
FPR r.3A.4 and r.3A.5 require the court to consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability.
FPR r.3A.4 and r.3A.5
Outcomes
Appeal allowed on Grounds 1 and 2.
Recorder Searle failed to adequately consider the Appellant's objection to a male psychologist based on her trauma and the lack of participation directions created procedural irregularity amounting to a breach of natural justice. His engagement with the argument was superficial and failed to weigh the impact on her ability to participate and give evidence.
Modified Ground 3 (refusal of fact-finding hearing) dismissed.
Recorder Searle applied the correct legal test and his decision, though ex tempore, was not wrong.
Remitted to the first instance court to reconsider whether the assessment direction should be varied or discharged and to decide on a female psychologist.
The first instance court is better placed to determine the current need for the assessment and its interaction with the child's welfare and court timescales; a female psychologist is likely to facilitate the best evidence from the Appellant.