H (Children)

In public-law children proceedings, a judge may refuse permission for further psychological expert evidence where an existing jointly instructed assessment provides the assistance necessary to decide the case. A parent can challenge that evidence through cross-examination and submissions, and a further assessment may be disproportionate if it duplicates work and intrudes on the children. A without-notice step delaying disclosure of an expert report can be fair where there is an immediate risk, the order is short-lived, and the parties can promptly revisit it. The threshold for significant emotional harm may be assessed retrospectively using the whole evidential picture. Under Rule 16.29 of the Family Procedure Rules 2010, children’s wishes do not by themselves require separate representation: the child must also be able, having regard to understanding, to give conflicting instructions independently.

The father appealed against care orders made by Her Honour Judge Robertshaw in respect of two children, who remained living with their mother. The appeal challenged the treatment of a clinical psychologist’s assessment, the refusal of permission for a further expert and the admission or weight of other evidence. It also challenged the without-notice procedure used to delay disclosure of the psychologist’s report, the finding that the statutory threshold was met, the proportionality of the care plan and limited contact, and the failure to order separate representation for the children. The central issues were whether the proceedings and evidential rulings were fair and whether the findings and orders were adequately justified.

1. Disposition. The appeal was dismissed. King LJ and Sir David Keene agreed with the judgment of Black LJ.
2. Further expert evidence. Under Rule 25.1 of the Family Procedure Rules 2010, permission could be granted only where further expert evidence was necessary to assist the court in resolving the proceedings. The judge was entitled to conclude that the jointly instructed psychologist had provided the necessary assistance. A further psychologist would have needed to interview the mother and children as well as the father, causing further intrusion. The father retained an effective opportunity to challenge the assessment through extensive cross-examination and submissions. The judge was also entitled to attach no significant weight to a psychiatric report prepared for the father’s employers, because its author had not seen the proceedings material, had not addressed the issues in dispute, relied on the father’s account and was not available for cross-examination.
3. Fairness and evidence. The without-notice hearing postponing disclosure of the report was justified by the risk of serious harm if it were disclosed while the children were with the father. The order was limited in duration, transcripts and reasons were provided, and the matter was promptly reconsidered at a hearing attended by all parties. The final judgment demonstrated that the judge independently assessed the evidence. The psychologist’s views were supported by the father’s communications, the social worker, the guardian and earlier judicial findings. The documents from the children’s therapist were properly admitted because therapeutic guidance was relevant to the welfare decision and no timely objection had been made.
4. Threshold and orders. The judge was entitled to find the threshold under section 31 of the Children Act 1989 satisfied. Threshold assessment is necessarily retrospective and may use the fuller information and perspective available at the final hearing, provided the evidence is critically analysed. The judge was also entitled to conclude that care orders and limited supervised contact were proportionate, having balanced the children’s wishes, professional advice, therapeutic progress and the risk of continued emotional harm.
5. Separate representation. Rule 16.29 required the children’s solicitor ordinarily to act on the guardian’s instructions. Independent instructions were required only if the children wished to give conflicting instructions and were able, having regard to their understanding, to give those instructions themselves. The children’s wishes conflicted with the guardian’s recommendation, but the solicitor and guardian were entitled to conclude that the children lacked sufficient understanding and would not appreciate the consequences of direct participation. The potential emotional harm of such participation was material. The judge was therefore not required to order separate representation of her own motion. The balancing approach in Mabon v Mabon [2005] EWCA Civ 634 was consistent with that conclusion.

• Court of Appeal (Civil Division): On 18 February 2015, the court dismissed the father’s appeal. [2015] EWCA Civ 115
• Plymouth County Court: On 23 July 2014, Her Honour Judge Robertshaw made care orders concerning the two children.