B (Children), Re

On an application under section 38(6) of the Children Act 1989 by the Official Solicitor to instruct an expert whose evidence is relevant to an incapacitated litigant’s case, the court should be very slow to refuse permission. A refusal must recognise the overriding duty to take reasonable steps to guard against injustice and explain why the case is sufficiently exceptional to justify departure. The court must assess the proposed expert’s distinct expertise, the additional perspective the evidence may provide, and the realistic timetable. Further evidence is not necessarily repetitive merely because other professionals have already reported.

Care proceedings concerned five children of parents with disabilities. The children had been placed in foster care, and the local authority sought care orders. Following assessments by Symbol Family Support Services and the local authority’s Oaks Therapy Assessment Team, Symbol continued to recommend consultation with a child and family psychiatrist.

The Official Solicitor applied for permission to instruct Dr Bester. His proposed report was relevant to the children’s needs and future contact. His Honour Judge McIntyre granted interim care orders but refused permission to instruct the expert and refused permission to appeal. The central issue was whether that refusal was legally justified in light of the Official Solicitor’s responsibility, the existing assessments and the proposed timetable.

Lord Justice Thorpe delivered the leading judgment. Lady Justice Arden and Lord Justice Pitchford agreed. The appeal was allowed and permission was granted to instruct Dr Bester.

1. The court should be very slow to reject an Official Solicitor’s application under section 38(6) of the Children Act 1989 to instruct an expert whose opinion is pertinent to the Official Solicitor’s responsibility to an incapacitated litigant. The overriding principle is that every reasonable step should be taken to safeguard the litigant from injustice. A judge refusing permission must acknowledge that principle and explain why the particular case is sufficiently exceptional to justify departure from it. Mere consideration of case-specific factors, without that analysis, is inadequate.
2. The judge had wrongly characterised the proposed assessment as causing unnecessary and unjustified delay. On the relevant timetable, there would have been approximately 24 or 25 clear days between receipt of the report and the final hearing.
3. The judge had also wrongly treated the proposed assessment as a repetition of work already undertaken. Symbol’s own reports, including its response to the Oaks report, continued to identify the need for specialist psychiatric advice concerning the children’s ongoing contact and therapeutic needs.
4. It was an error to equate the expertise of a team of social workers, even specialists in attachment theory, with that of a consultant psychiatrist. Dr Bester’s qualifications were distinct and had the potential to provide a valuable additional perspective.
5. Lord Justice Thorpe further observed that the local authority ought to have sought the judge’s permission before commissioning the Oaks assessment in the context of contested care proceedings, since it was intended to form part of the expert evidence and involved the children. That evidence would be subject to rebuttal and cross-examination.

Order: appeal allowed.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 363, allowed the appeal and granted permission to instruct Dr Bester.
2. Reading County Court: His Honour Judge McIntyre granted interim care orders but refused the Official Solicitor’s application for permission to instruct Dr Bester and refused permission to appeal.