C (A Child), Re

In children proceedings, expert evidence may be permitted only where it is necessary to assist the court to resolve the proceedings justly. The court must apply the statutory criteria and the procedural code governing expert evidence, including requirements concerning timing, application contents, issues, questions, alternatives, timetable and costs. Failure to comply is a prescribed matter, not a mere technical defect. Allegations alone cannot require the opposing party to justify why an expert report is unnecessary. A competent adult cannot be compelled to undergo a medical procedure such as a psychological assessment. Case-management discretion remains subject to procedural fairness and welfare considerations.

Private-law child arrangements proceedings concerned the mother’s oral application for a psychological assessment of the father, who sought unsupervised contact with their young child. On 21 November 2014, magistrates directed the assessment despite the absence of a formal application, supporting documents, identified expert, questions or costings. His Honour Judge Scarratt considered an appeal on 23 January 2015 but did not address the statutory and procedural requirements. Further directions were made on 30 January 2015. The father appealed to the Court of Appeal, which considered whether expert evidence had been shown to be necessary, whether the father could be directed to undergo the assessment, and whether the costs and funding arrangements had been properly addressed.

1. Appeal allowed. The judgment of Ryder LJ, with which Elias LJ and Aikens LJ agreed, set aside clause 2 of the magistrates’ order dated 21 November 2014, the whole of Judge Scarratt’s order dated 23 January 2015, and the whole of the order dated 30 January 2015 except the clause confirming contact.
2. The statutory scheme in section 13 of the Children and Families Act 2014 and the procedural code in Part 25 of the Family Procedure Rules 2010 had to be applied rigorously. Permission for expert evidence could be given only where the evidence was necessary to assist the court to resolve the proceedings justly. The court had to consider the statutory factors, including welfare, the issues and questions for the expert, alternative evidence, procedural impact and costs. Non-compliance with the application requirements was a prescribed matter under rule 25.5(1A).
3. The magistrates had treated the mother’s allegations as sufficient to place an obligation on the father to show that an assessment was unnecessary. That reversed the proper approach. The court had to examine the evidence, identify the issue requiring expert assistance and give reasons, particularly where it disagreed with the cogent advice of the Cafcass officer. The order therefore failed to establish necessity or a fair process.
4. A competent adult could not be ordered to undergo a medical procedure. A psychological assessment should be authorised by permission to instruct an expert, accompanied by an explanation and recorded warning that unjustified non-co-operation might lead to adverse inferences.
5. The equal apportionment of expert costs was also unsustainable. The court had not established the father’s ability to pay, the likely cost of the report or whether public funding would cover the mother’s share. The guidance in A Local Authority v DS [2012] EWHC Fam 1442 (Fam) was endorsed.
6. Although appellate courts should be slow to interfere with case-management decisions, intervention was required where welfare and procedural justice were missing. The proceedings were remitted to the Family Division Liaison Judge for reallocation to a judge able to provide continuity. The existing contact arrangements were to continue, and the same Cafcass officer was to remain involved.

• Court of Appeal (Civil Division) — Appeal allowed. The relevant orders were set aside and the proceedings remitted for fresh case management under the Child Arrangements Programme.
• Family Court at Canterbury sitting at Medway — Magistrates directed a psychological assessment of the father on 21 November 2014 without compliance with the expert-evidence scheme.
• Family Court, His Honour Judge Scarratt — On 23 January 2015, the judge considered the appeal from the magistrates’ decision but did not address the procedural requirements identified by the Court of Appeal.
• Family Court at Canterbury sitting at Medway — Further directions concerning expert evidence were made on 30 January 2015 and were subsequently set aside, save for the clause confirming contact.