N (A CHILD) (INSTRUCTION OF EXPERT)

The Court of Appeal dismissed an appeal against a family court case management order permitting the instruction of a named independent social worker (ISW) to prepare a section 7 Children Act 1989 assessment. The primary legal principles were: (i) challenges to case management decisions are subject to a high threshold and will only succeed where a judge has taken into account irrelevant matters, failed to take into account relevant matters, or reached a plainly wrong decision; (ii) where a party asserts that the appointment of an expert of a particular gender infringes Convention rights (Article 6 or Article 9), the court requires clear, specific evidence to explain how the proposed appointment would interfere with the manifestation of religious belief or the right to a fair hearing; and (iii) in appointing an expert the court may legitimately take into account the expert’s qualifications, cost and the time taken to produce a report, as well as the child’s welfare and the need to avoid prejudicial delay (including s.1(2) Children Act 1989 and the Family Procedure Rules overriding objective).

The appeal arose from private law children proceedings concerning an eight-year-old boy (A) in which the court ordered a section 7 welfare assessment to assist determination of child arrangements and school placement. The parents were brought up within the Haredi Hassidic community but the mother had moved away from aspects of that community after separation. The father applied under Part 25 for the appointment of an independent social worker; at various stages different candidates were proposed by the parties. The judge at first instance (HHJ Clarke) authorised the appointment of Ms Marlene Marcano (a woman) rather than the father’s preferred assessor, Mr John Power (a man). The father contended that instructing a female ISW would impede his ability to engage with the assessment because of his religious beliefs and would amount to an infringement of his Article 6 and Article 9 rights. The President granted permission to appeal on the appointment issue and the matter proceeded to the Court of Appeal.

(i) Nature of application: appeal against a case management order permitting instruction of a named ISW to prepare a s.7 report and a contention that gender of the ISW infringed the father’s Convention rights.

(ii) Issues framed: whether the judge gave adequate weight to the father’s claim to a fair hearing under Article 6 and to his religious rights under Article 9; whether the judge erred in failing to appoint the father’s proposed assessor; whether case management considerations (qualifications, cost, timeliness and child welfare) justified the appointment of the mother’s proposed assessor.

(iii) Court’s reasoning: the Court of Appeal emphasised the high threshold for disturbing case management decisions and upheld the judge’s approach. The appellants had not adduced evidence showing how a female assessor would prevent manifestation of the father’s religious belief or impede his effective participation; earlier court documents and the father’s conduct in the proceedings (including prior proposals of a female assessor and contact with female professionals) undermined the contention that gender would prevent engagement. The judge had properly identified core factors in instructing an expert—fitness/experience, cost and timetable—and reasonably concluded that Ms Marcano was the appropriate appointee (she would work at legal aid rates and report more promptly). The court observed that, while it may sometimes be appropriate to specify expert gender, such a request must be clearly pleaded and supported by evidence explaining why it is necessary.

The Court therefore dismissed the appeal and endorsed the judge’s balancing of procedural fairness, cultural/religious claims and robust case management.

Appeal dismissed. The judge’s case management decision to appoint Ms Marlene Marcano as the independent social worker was within proper judicial discretion. The father failed to adduce evidence that the appointment of a female ISW would prevent him from participating effectively or would interfere with his Article 9 rights; the judge properly weighed the experts’ qualifications, likely cost and timeliness, and the welfare and delay considerations under the Children Act and Family Procedure Rules.

Appeal from the Family Court at Watford (case no WD22P00095, HHJ Richard Clarke). Permission to appeal against the appointment order was granted by Sir Andrew McFarlane P on 8 August 2022 and the appeal was transferred to the Court of Appeal under FPR r.30.13. The Court of Appeal heard the appeal and dismissed it on 6 December 2022. (Earlier interlocutory case management steps included a district judge order of 29 March 2022 and a case management hearing before HHJ Clarke on 20 July 2022.)