AV (A Child) (Expert Report)

Permission for expert evidence in children proceedings depends on whether it is necessary to assist the court to resolve the proceedings, not merely desirable. The court must consider the statutory factors, including welfare, available evidence, whether another person can give it, and any effect on the timetable.

Experienced social workers and guardians may address attachment and placement issues. However, where a child has suffered trauma and loss of unusual degree and complexity, their evidence may not supply the specialist opinion needed on the likely effect on future placements. A psychiatric assessment is not speculative merely because it cannot predict the child’s future with certainty.

In care proceedings concerning a child who survived a fire in which his siblings died, the Family Court refused the mother’s application, renewed after an adjournment, for permission to instruct a child psychiatrist. The court had to choose between possible future placements, including placement with paternal grandparents, long-term fostering and adoption.

The judge held that the social worker and guardian could address the child’s trauma, attachments and placement needs, and that a psychiatric report would add no forensically useful evidence. The mother appealed both refusals. The central issue was whether specialist psychiatric evidence was necessary to assess the likely effect of the child’s complex trauma and losses on his future placement.

Appeal allowed unanimously. Baker LJ, with whom Popplewell LJ agreed, granted permission to instruct the proposed child psychiatrist.

1. The appeal concerned a discretionary case-management decision, so the appellate court would not intervene lightly. The judge had identified the correct statutory test under Children and Families Act 2014: expert evidence must be necessary to assist the court to resolve the proceedings. Her answer to that question was, however, wrong.
2. The child’s direct experience of the fire, the deaths of his siblings, separation from his parents, the possible future understanding of parental responsibility, and possible survivor’s guilt formed a complex web of trauma and loss. Those matters were relevant to every realistic placement option and to the consequences of later breaks in attachment.
3. Although the social worker and guardian were experienced and well qualified, their expertise did not extend to giving a professional opinion on the likely impact of trauma and loss of that degree and complexity. An experienced child psychiatrist could draw on professional experience, examination of the child and discussions with carers and professionals to advise on the likely impact on the proposed placements.
4. The fact that no psychiatrist could predict the child’s future with certainty did not make the proposed evidence speculative or academic. The opinion was necessary for the welfare analysis and for deciding which order would best meet the child’s needs.
5. The potential delay caused by the report was a statutory consideration, but would not have justified refusal where the evidence was necessary. By the renewed application, the final hearing had in any event been adjourned for assessment of the paternal grandparents, so the report could be obtained within the revised timetable.

Permission was therefore granted for instruction of the expert.

• Court of Appeal (Civil Division) — Allowed the mother’s appeal and granted permission to instruct a child psychiatrist: [2020] EWCA Civ 346.
• Family Court — Refused the application for expert psychiatric evidence on 31 January 2020 and refused the renewed application on 14 February 2020.