EXPERTS: A PARTY CANNOT INSIST THAT A SINGLE JOINTLY INSTRUCTED EXPERT BE MALE: COURT OF APPEAL DECISION

In N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 the Court of Appeal rejected an argument that a single joint expert should have been male.  The judgment emphasises the point that a party wishing to argue for a particular choice of expert should file evidence to support their contentions.

“The decision to appoint Ms Marcano was a case management decision by a judge who had the benefit of detailed written submissions and oral argument. An appellant who challenges such a decision faces a high hurdle. Appeals from case management decisions will only be allowed where the judge fails to take into account a relevant factor or has regard to an irrelevant factor or reaches a decision that was plainly wrong”

THE CASE

The parties had divorced and the dispute related to contact and other arrangements in relation to the child of the family.  The father had proposed that an independent social worker be appointed, one with specific experience of dealing with the religious issues that arose.  The father originally proposed a female social worker, that was not accepted and Cafcass was asked to consider the issue.  The father then proposed the appointment of a male social worker.  After a hearing the judge determined that a female social worker should report.

THE APPEAL

The father appealed on the basis that it was a breach of his Section 9 rights that a female social worker was appointed.  That argument was not accepted by the Court of Appeal.  The judge had made a case management decision. The section 9 argument had been raised very late in the day and it was the father who had originally suggested that a female social worker be appointed.

THE JUDGMENT

Discussion

1. 1. The decision to appoint Ms Marcano was a case management decision by a judge who had the benefit of detailed written submissions and oral argument. An appellant who challenges such a decision faces a high hurdle. Appeals from case management decisions will only be allowed where the judge fails to take into account a relevant factor or has regard to an irrelevant factor or reaches a decision that was plainly wrong: Royal and Sun Alliance Insurance PLC v T & N Lts [2002] EWCA Civ 1964, Jalla and another v Shell International Trading and Shipping Co Ltd (Appeal 3: Refusal to Extend Time) [2021] EWCA Civ 1559.

1. 1. As Lewison LJ observed in Mannion v Grey [2012] EWCA Civ 1667 at [18],

“it is vital for the Court of Appeal to uphold robust, fair case management decisions made by first instance judges.”

This principle applies just as strongly to case management decisions in the family jurisdiction as it does in other areas of the law. Robust case management is a fundamental feature of the family justice system. This court will be slow to interfere with case management decisions by first instance judges grappling with the multiplicity of issues that frequently arise in family cases.

1. 1. In this case, the judge reached his decision by rejecting the argument that the appointment of a female ISW would infringe the father’s human rights, identifying the criteria relevant to the decision (qualifications, costs, timeliness) and concluding that Ms Marcano was the candidate who satisfied those criteria.

1. 1. In my view, the judge was fully entitled to reject the father’s human rights arguments. There was no reference to Article 9 in any of the documents filed in the proceedings before the hearing on 20 July 2022 and, although no transcript of the hearing has been prepared, there is nothing in the judgment to suggest that Article 9 was mentioned at any point. As Dingemans LJ rightly explains in his judgment, if the father contended that the appointment of a female ISW would infringe his rights under Article 9, it was necessary for him to set out that argument clearly and support it with evidence. These steps were simply not taken in this case. Similarly, there was no evidence at all from the father to support his assertion that his rights under Article 6 would be infringed by such an appointment. In oral argument to this court, Mr Hames drew attention to evidence in the mother’s statement as to the father’s beliefs and conduct which could have been relied on to support an argument that the father would find it impossible to engage with a female professional instructed to conduct an assessment. As Mr Hames readily conceded, however, no evidence supporting the argument had been filed on behalf of the father himself.

1. 1. On the contrary, the argument was undermined and in some respects contradicted by actions taken on behalf of the father in the course of proceedings.

1. 1. Until a relatively late stage there was little sign that the father might object to the appointment of a female independent social worker. Throughout the proceedings, he has been represented by a female solicitor, Ms Preece. His first barrister was a woman. The Cafcass Family Court Adviser who carried out the initial safeguarding assessment and who spoke to the father in the course of that preliminary assessment was a woman. It is true that none of these professionals has met the father in person. During the appeal hearing, we were told that all communication has been by telephone, not video link (the father does not use the internet). Ms Preece’s discussions with the father have been conducted in the presence of a member of a Hassidic organisation acting as an intermediary. Nonetheless, the fact is that the father has had dealings with a number of female professionals during the course of these proceedings.

1. 1. There is no suggestion in his Part 25 application, drafted by his solicitor Ms Preece, that the father wanted a man to be appointed as the independent social worker. On the contrary, the professional identified in the application was a woman, Ms Leifer. In the position statement filed on his behalf by his then counsel in support of the Part 25 application, there was no suggestion that the gender of the person to be appointed as an ISW was or might be an issue. The position statement reported that the father considered it “essential” that the assessment be carried out by an ISW with experience of undertaking assessments within the Orthodox Jewish community. If the father at that stage had also regarded it as “essential” for religious or cultural reasons that the assessment be carried out by a man, one might have expected the position statement to say so. It did not.

1. 1. The order made by the district judge on 29 March sets out in some detail the issues to be raised when inquiring of Cafcass whether it would be able to appoint someone to carry out the assessment. Those issues were properly identified in the letter subsequently sent to Cafcass by Ms Preece. Had the gender of the professional carrying out the assessment been a matter of fundamental importance to one or other party, one would have expected it to be mentioned at that stage. It was not. When the father’s Part 25 application returned to court after Cafcass had declined to carry out the assessment, the position statement in support of the father’s proposal that Mr Power be instructed stated that the father had “indicated early on in these proceedings that in light of the concerns raised by the mother he had a preference for the ISW to be male”. But the district judge’s order of 29 March had included a recital that “this is not a case where Practice Direction 12J is engaged”. In the light of that recital, it would not be necessary for the court, or the assessor, to address the question whether the mother’s concerns amounted to coercive control or another form of abuse. No other reason was advanced in the position statement for continuing to oppose the instruction of a female ISW. Furthermore, as Mr Twomey KC pointed out in the course of the appeal hearing, the use of the word “preference” to describe the father’s position about the appointment of a woman was hardly consistent with the argument now advanced that such an appointment would prevent his effective participation in the proceedings and amount to a breach of his human rights.

1. 1. There was nothing in any document filed in the proceedings before the hearing on 20 July to suggest that the father objected to the instruction of a female independent social worker on the grounds that such an appointment would compromise his ability to engage in the proceedings due to his beliefs or that it would therefore be a breach of his right to a fair hearing under Article 6 and his right to manifest his religious beliefs under Article 9. It was only in oral argument before the judge that the father’s counsel suggested that given the father’s beliefs the appointment of a woman would be a breach of his Article 6 rights. This assertion was unsupported by any evidence filed by the father and undermined by a number of steps taken on his behalf in the course of the proceedings. In those circumstances, the judge was entitled to reject it.

1. 1. In these circumstances it is not necessary to say whether it could ever be right to specify an expert of a particular gender.  I do not, however, rule out the possibility that such an order could be justified. As ever, all will depend on the circumstances. Justice requires the court to adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions. It is, however, imperative that any application that the expert instructed be of one specified gender must be clearly explained and fully supported by evidence demonstrating why such a stipulation should be included.

1. 1. The judge correctly identified three factors relevant to the decision to appoint an ISW and in my view his assessment of those factors in this case cannot realistically be challenged in this court. All three proposed experts had the experience to carry out the assessment and the judge was entitled to conclude that considerations of cost and timeliness favour the appointment of Ms Marcano. She alone had confirmed that she was willing to work at legal aid rates. The overriding objective in rule 1 of the Family Procedure Rules to deal with a case justly “includes, so far as is practicable … saving expense”. Although the father had undertaken to meet any shortfall between those rates and Mr Power’s fees, it would plainly have been undesirable in the circumstances of this case for one party to make a greater contribution to the financial cost of instructing the expert if another expert was able to carry out the assessment on a jointly-funded basis. Mr Hames is correct in saying that the decision to hear the mother’s specific issue application at the same time as the father’s child arrangements application and not at an earlier separate hearing meant that Mr Power’s report would have been available in time for the hearing. As Mr Twomey pointed out, however, the fact that Ms Marcano was able to file a report at an earlier date remained an advantage in that the sooner the report was available the more likely it was that the parties would have an opportunity to consider it and reach an agreement before the hearing. The decision to appoint Ms Marcano was consistent with the principle in s.1(2) of the Children Act 1989 (“that any delay in determining the question is likely to prejudice the welfare of the child”) and the overriding objective which “includes, so far as is practicable … ensuring that it is dealt with expeditiously ….” In the circumstances, it cannot be said that the judge took into account any irrelevant factor in reaching his decision.

1. 1. For these reasons, I would dismiss the appeal against the order permitting the parties to instruct Ms Marcano to carry out the assessment.