H (Childen) v (Appeal: Case Management: Part 25 Expert of Treatment)

Appeals against case-management decisions face a high threshold. The appellate court should intervene only for an error of principle, reliance on irrelevant matters, failure to consider relevant matters, or a decision outside the generous ambit of discretion.

A report by a treating clinician is not transformed into a Part 25 expert report merely because it contains an expert rubric or opinions. The court must examine the substance of the instruction and work undertaken. Treating clinicians may give factual evidence, including opinions formed during treatment, but that evidence does not carry the same authority as court-authorised expert evidence.

The mother appealed against a case-management order made by His Honour Judge Levy in proceedings concerning three children. The order treated a family psychotherapist as a witness of fact rather than a Part 25 expert, retained the psychotherapist’s report in the bundle, and directed that the psychotherapist need not give live evidence.

The psychotherapist had initially been instructed to provide a paper-based assessment, but later undertook therapeutic work and reported on its progress. A subsequent report recommending transfer of residence had not been authorised by a court order. The central issues were whether the reports were expert evidence, whether the psychotherapist had exceeded the remit, and whether the case-management decisions were wrong or procedurally irregular.

1. Appeal dismissed. Permission to appeal was refused because the appeal had no realistic prospect of success.
2. The appellate court’s jurisdiction over case-management decisions is limited. It may intervene where the judge erred in principle, took account of irrelevant matters, failed to consider relevant matters, or reached a decision so plainly wrong that it fell outside the generous ambit of discretion.
3. The original instruction was made under Part 25. However, the January 2018 order authorised therapeutic work and a report on the progress of that work, including recommendations for future therapeutic work and contact. In substance, that was a treating-therapist report rather than a Part 25 expert assessment. The distinction may become blurred, and a report may conceivably serve a dual purpose, but its forensic status depends on the substance of the instruction and work.
4. The third report, recommending a transfer of residence, had not been commissioned pursuant to any court order. It was therefore a report from a treating therapist, not a permitted Part 25 expert report. The inclusion of standard Part 25 wording did not alter that conclusion. His Honour Judge Levy’s interpretation of the orders and his assessment of the psychotherapist’s remit were reasonable and within his discretion.
5. It was also open to the judge, having characterised the evidence as factual rather than expert evidence, to decide that the psychotherapist need not give oral evidence within the three-day estimate. A treating clinician’s report may contain both facts and opinions. Those opinions remain capable of being considered as part of the factual substratum, although they carry less weight and authority than evidence from a court-appointed expert.
6. Earlier case-management directions do not absolutely bind the trial judge. The trial judge may depart from them if necessary to achieve a just and Convention-compliant determination having regard to the children’s welfare.

1. High Court (Family Division): Permission to appeal refused and appeal dismissed.
2. Family Court: His Honour Judge Levy’s order of 29 November 2018 treated the family psychotherapist’s evidence as factual rather than expert evidence and directed that the psychotherapist need not give live evidence.