A (A Child: Appeal: Case Management Decision: Identity of Expert), Re

Appeals against case-management decisions are permitted only in limited circumstances, including material error of principle, failure to take relevant matters into account, or a decision outside the generous ambit of discretion. Judges have a proactive duty to consider participation directions where vulnerability may diminish the quality of evidence or participation. Failure to provide such measures is not automatically unfair, but may breach natural justice when it prevents a party from presenting a material argument. The need for the best possible evidence extends to expert assessments. In an appropriate case, the court may specify an expert’s gender where that is necessary to secure effective participation and reliable evidence.

The appeal arose from private-law Children Act proceedings concerning a 12-year-old child. The Family Court had directed a global psychological assessment of the child and both parents by a male psychologist. The mother later applied to discharge or vary that direction, arguing that her history of male sexual, physical and emotional abuse meant she could not participate effectively in an assessment by a man. She also sought participation directions and a fact-finding hearing.

Recorder Searle refused both applications. The mother appealed. Permission was granted on grounds concerning the identity of the expert, participation directions, and the refusal of a fact-finding hearing.

1. Appeal allowed in part. Grounds 1 and 2 succeeded. Ground 3 was dismissed.
2. On a case-management appeal, the appellate court may interfere where the judge erred in principle, took account of irrelevant matters, failed to take account of relevant matters, or reached a decision outside the generous ambit of discretion. Robust first-instance case management remains important.
3. The Recorder was wrong to treat the mother’s application as a backdoor appeal against the earlier order. It was an application to discharge or vary that order. That mistaken characterisation influenced the Recorder’s superficial treatment of the mother’s objection to assessment by a male psychologist.
4. The court accepted that participation directions should have been in place. Judges have a proactive duty to consider whether special measures are required. Their absence does not automatically make a decision unfair, but in this case it breached natural justice. The mother’s vulnerability, emotional distress, inability to see the Respondent safely on the remote link, and history of male abuse materially affected her ability to explain and advance her objection.
5. The best-evidence principle applies to pre-hearing expert assessments as well as to oral evidence. On the facts, there was good reason to appoint a female psychologist. That appointment was most likely to secure the mother’s effective participation, preserve both parties’ Article 6 rights, and reduce further delay.
6. The refusal to order a fact-finding hearing was not erroneous. The Recorder identified and applied the correct legal test, and his order was recorded in accordance with paragraph 18 of PD 12J.
7. The issue whether the assessment direction should be varied or discharged was remitted to the Family Court for fresh consideration. The first-instance judge was not fettered in exercising discretion and could consider whether the assessment remained necessary or proportionate.

• High Court (Family Division): appeal allowed on Grounds 1 and 2, dismissed on modified Ground 3, and the issue concerning the assessment direction remitted to the Family Court for fresh consideration.
• Family Court at Barnet: Recorder Searle refused the mother’s applications to discharge or vary the psychological-assessment direction and to obtain a fact-finding hearing.