N (A CHILD) (INSTRUCTION OF EXPERT)

A challenge to a case-management decision will succeed only where the judge ignored a relevant matter, considered an irrelevant matter, or was plainly wrong. In selecting an expert, the court may properly consider qualifications, cost and the time for reporting.

A request that an expert be of a specified gender may in an appropriate case be justified. The party relying on it must, however, clearly explain and support by evidence the relevant religious or cultural belief, the practical interference said to arise, and its effect on effective participation. The court must respect demonstrated religious rights and may use flexible case-management measures, but it need not accommodate an unsupported preference.

In private-law proceedings concerning an eight-year-old child, the father sought child-arrangements and prohibited-steps orders. The mother sought permission to transfer the child to a different school. The Family Court concluded that an independent social worker should assess arrangements, education, culture and welfare.

After Cafcass could not provide a suitably experienced officer, the father proposed a male independent social worker. The mother proposed female candidates. HHJ Clarke selected Ms Marcano because all candidates were qualified, but she could report sooner and work at legal-aid rates. The father appealed, contending that appointing a female assessor impaired procedural fairness and his religious rights. The central issue was whether that case-management decision was flawed.

1. Appeal dismissed. The selection of Ms Marcano as the independent social worker was a case-management decision. Such appeals face a high hurdle. Intervention is justified only where the judge omitted a relevant consideration, considered an irrelevant consideration, or was plainly wrong.

2. The judge was entitled to reject the father’s human-rights arguments. No Article 9 case had been raised in the documents or supported by evidence. There was likewise no evidence from the father that appointment of a female assessor would prevent his effective participation so as to infringe Article 6. His earlier proposal of a female assessor, and his dealings with female professionals, materially undermined the assertion.

3. A gender requirement for an expert is not categorically impermissible. Justice may require procedures which respect a person whose rights are significantly affected. But an application for an assessor of a specified gender must be clearly advanced and fully evidenced. It must show why the stipulation is necessary in the circumstances.

4. The judge correctly considered qualifications, cost and timeliness. All proposed assessors were qualified. Ms Marcano’s ability to work at legal-aid rates and report earlier were legitimate advantages. The father’s offer to meet the additional cost of another assessor did not make unequal funding desirable. The decision also accorded with the need to avoid delay under Children Act 1989 section 1(2) and with the overriding objective in the Family Procedure Rules 2010.

5. Dingemans LJ added that an Article 9 claim requires evidence identifying both the religious belief and the asserted interference with its manifestation; the court does not judge the validity of that belief. King LJ added that extensive case-management powers may enable practical solutions which secure the best evidence, but only once the difficulty has been properly identified and, where necessary, evidenced.

6. The matter was to be restored before the judge for case management and relisting of the final hearing at the earliest available date after the report.

• Court of Appeal (Civil Division): Dismissed the father’s appeal and upheld the order permitting Ms Marcano to be instructed as the independent social worker.
• Family Court at Watford: HHJ Clarke selected Ms Marcano in a case-management order, having rejected the father’s proposed male assessor.