Today’s mediocre blog post is brought to you from the Sunday sofa of covid…(actually, its probably just a mild non-covidy virus, but confirmation is awaited)… I blame any typos, non-sequiturs, offence or error on the wretched germs.

I did read the President’s Case Management Guidance when it was issued recently, honest I did. But if we’re doing honesty, it must also be said that I didn’t read it that closely – I gave it a quick eyelash, sighed and got back to work. I was also possibly slightly distracted by the bread-based metaphor in the accompanying ‘View’, and generally diverted by other pressing life and work priorities. The catch 22 reality is that if we all went through all the guidance with which we are issued with a fine toothed comb, there would be no time to put any of it into practice (let alone write blog posts about it).

Anyway, belatedly realising that the Case Management guidance has caused some furrowed brows – particularly around the topic of experts – I thought I ought to go back and take a proper look.

We seem to be moving somewhat beyond a position of ‘necessity’ (the statutory test) in respect of experts, to one of exceptionality: firstly with the bald (and bold) statement that ‘applications for independent social workers or psychological assessments should not be necessary’, and latterly with the statement that ‘Cross examination of single joint experts should be the exception not the norm’. It is true that the guidance does also refer explicitly to the test of necessity, but the emphasis in this bold heading and when read in context is that, at least in the case of social work and psychological experts evidence, they WILL NOT generally be necessary. Which is presumably an indicator that judges are thought to have been approving the appointment of such experts inappropriately?

My own recent experience is that ISWs are being routinely instructed because the local authority who needs to undertake an assessment has no capacity. In fairness, this is usually at the LA expense and not a single joint expert instruction, because it is just a contracting out of the LA’s own responsibility. So perhaps that is a distinct issue. But it underlines the point that LA’s don’t always have a person of sufficient expertise available to undertake a particular piece of work, and this may well mean that in some cases, rather than paying for an ISW, a LA may put forward someone without the requisite experience for the particular assessment. I haven’t encountered that but it seems eminently possible. Either way, I don’t see many applications made for the joint instruction of ISWs except where there is a particular reason, most often a specific issue which requires some more niche expertise than the allocated social worker or guardian can offer (that is not by the way a criticism of social workers), or where the LA has demonstrably closed its mind or otherwise messed up an earlier assessment.

As for psychologists, there may be a small number of cases where a social worker will to readily attempt to pass the buck for assessment to a psychologist, but in my experience there is usually a genuine need for the particular insight a psychologist can bring, to help the social workers understand parental behaviour in order to inform a plan for support or care, or to help really identify what it is that a child needs from a placement and whether or not a return will actually be in their welfare interests. Sometimes that can be done by a social worker, but not always. On any view, such a report will be necessary in a minority of cases. I don’t see in my own practice that they are being permitted at the drop of a hat. Perhaps this is happening in other places – it would be interesting to have some data on the pattern of applications and the frequency of them being granted or rejected, as anecdotal information is limited in what it can tell us.

As for the questioning of experts, well…

There is actually a rule dealing with this. Obviously, because its in the actual rules everyone ignores or forgets it, but it is there :

25.9 General requirement for expert evidence to be given in a written report

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

There is no entitlement to call an expert – it must be necessary. This is not new. Be ready to justify it.

Also more honoured in the breach, particularly in terms of the 10 day timescales, is the subsequent rule (25.10) on written questions :

25.10 Written questions to experts

(1) A party may put written questions about an expert’s report to

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 25.11.

(2) Unless the court directs otherwise or a practice direction provides otherwise, written questions under paragraph (1) –

(a) must be proportionate;

(b) may be put once only;

(c) must be put within 10 days beginning with the date on which the expert’s report was served;

(d) must be for the purpose only of clarification of the report; and

(e) must be copied and sent to the other parties at the same time as they are sent to the expert.

(3) An expert’s answers to questions put in accordance with paragraph (1) –

(a) must be given within the timetable specified by the court; and

(b) are treated as part of the expert’s report.

The President might have a point on the written questions issue – I suspect it is not unconnected with the funding regime and the way in which counsel are instructed shortly before hearings, but it is rare in my experience for good use to be made of the written questions process, and in particular for it to be done timeously. It’s more often raised at the hearing subsequent to the report (inevitably out of time) by an advocate just instructed. It would clearly be preferable if, within 10 days of receipt of a report, instructions were taken and proper focused questions asked – but in truth I’m not sure how feasible that is, which is no doubt why courts routinely grant extensions when later requests are raised.

There are some courts I’ve appeared in where individual judges already insist on proper justification being given for the calling of an expert at a final hearing in accordance with FPR 25.9 – that’s not to say they won’t allow it, but they do ask why its necessary – and why written questions won’t do. There are some situations where written questions are frankly just fine, and others where live, responsive cross examination is essential to the justice of the case. As a very sweeping generalisation I’d say the latter predominates, but every case is different. Again though, to use the written question process properly requires early analysis of the issues, advice and the taking of instructions – that is to say the formulation of a case strategy at a time where a trial advocate is either not instructed or simply not in a position to get up to speed. Part of the answer is earlier instruction, but workloads mean that the mere dumping of papers on counsel at an early stage is not a complete answer – there is no framework for an advocate to be properly remunerated for this front-loaded early work, solicitors may naturally want counsel (where instructed) to deal with such matters, and I for one find it increasingly difficult to read in as soon as papers arrive – I do my best but something has to give somewhere. (The dynamics of this are no doubt somewhat different in cases where counsel aren’t going to be instructed, but solicitors are not hugely incentivised to do more work earlier, and they are incentivised to prevail on counsel to do more unremunerated work between hearings in order to maximise the number of cases they can take on, which is essential to maintain sustainable margins).

At any rate, I don’t object to the court quite properly deploying FPR 25.9 to explore whether or not an expert is really required to attend (we’ve all seen cases where they are required to attend even though counsel doesn’t really have anything of utility to ask) – but the idea that the attendance of experts should be ‘exceptional’ is a step further than the rules go, and I suspect will be much more controversial.

There is, of course, a lot more in the case management document than these specific points on experts, but in essence all of it is about economising, trimming flab and slimming down the process to produce more sausages more quickly. Fewer hearings, fewer fact findings hearings (notwithstanding Re H-N), fewer witnesses, shorter hearings. The President wants us to go back to the principles which emerged from the Norgrove review in 2011 (I remember it well – the President was on the panel, I gave evidence to it along with Stephen Cobb (now Cobb J)). But these times are nothing like the (comparatively) golden days of 2011. There is more to do, with less people, less time and less resource. There is limited goodwill and everyone is on the brink of burnout. And as for the re-emphasis of the post-Norgrove amendment that is s31(3A) (requiring the court to consider the permanence provisions in a care plan but not necessarily the remainder of the care plan) – it is worth noting that the Guidance does not rehearse the full wording of that provision. The Guidance suggests that the effect of s31(3A) is to ‘require the court […] not… to consider the remainder of the care plan’ (note the … between ‘not’ and ‘to’).

S31(3A) in fact says that the court is ‘not required to consider the remainder of the section 31A plan, subject to section 34(11)’. It doesn’t say it mustn’t consider it. And s34(11) positively requires the court to consider and hear submissions from the parties on ‘the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom s34 applies’. This is important. In some cases it will be essential to consider the detail of a care plan, because the appropriate outcome i.e. whether the care plan is endorsed by the court will depend upon it. And in ALL cases the contact provisions should be the subject of specific consideration. I set this out because the danger is always that a quick eyelash at guidance by a busy judge or magistrate, without going back to the wording of the statute, might lead the court into bulldozing through properly made points about the contents of care plans, which are genuinely important in reaching a conclusion on the welfare interests of a child – whatever s31(3A) says, welfare remains paramount and that is the court’s main job.

I understand of course why all this is being said : something must be done to ensure the ship stays afloat. And it is listing dangerously. But we need to take care to ensure that the tail of expediency does not wag the dog of justice (I’m not even a tiny bit sorry for that metaphor). Whether and how these aspirations for a leaner, more efficient and more functional Family Court translate into reality remains to be seen. If I had the energy I would probably weave in a reference to the risk of Ruff Justice, but frankly I’m too tired to bother…