Update | Children: interim care orders at without notice hearings, changes to expert witness evidence

Re L (A Child) [2013] EWCA Civ 179 concerned C who was 9 years old. She lived for most of her life with her maternal grandmother and step-grandfather (Mr and Mrs S) as both her parents had been involved in drug misuse. Residence orders were granted to Mr and Mrs S and later special guardianship orders made. C was the subject of long-standing litigation in the family courts between Mr and Mrs S and the mother (M). Contact between M and C was problematic. Later Mrs S' cooperation with the court process wained. In 2010 Parker J observed that there were a number of matters about which she had no information, given her stance. Among several other aspects, the judge did not know which school C went to, what surname she was registered under and who was looking after C. The levels of tension were extremely high and Mrs S was said to have believed that she was the expert regarding C's welfare. Mrs S was very critical of the court appointed expert psychiatrist.

Contact orders were made to allow C to develop an independent relationship with M. It was later discovered that C's attendance at school was around 50 per cent. Judicial concern grew. There were various further hearings and applications by Mrs S for permission to appeal. A report by the local authority (LA) pursuant to section 37 Children Act 1989 (CA 1989) was filed but did not find the significant harm threshold crossed for the making of section 31 CA 1989 orders. Despite Mrs S' view that the court's involvement was not necessary, Parker J reasserted the contact orders, attached penal notices and observed that the time may come for C to be made a ward of court. Later C was indeed made a ward. Mrs S' behaviour at future hearings become more aggressive and volatile. C's school was changed yet again. At another hearing the judge made clear her deep concerns for C despite the seemingly positive elements of her situation with Mrs S.

By December 2012 the LA took the view that C should be removed from Mrs S' care under an interim care order (ICO). That view was contained in a section 7 report. The LA was concerned that if Mrs S were to come to know of its view, C may come to emotional harm owing to Mrs S' reaction and the possibility that she would remove S to an undisclosed location. On approach to the judge by the LA, the judge gave permission for the report not to be disclosed to the parties until the matter could return to court.

At a short without notice hearing, the judge made a further direction under section 37 that the LA should investigate and report. Having made that direction the judge immediately made an ICO as permitted by the statute where a section 37 direction is live. Moments after that hearing, a further hearing took place with the parties. Mrs S was provided with the LA's report recommending removal and informed that an ICO had been made. Parker J then listened to Mrs S' objections to the judge continuing that order following the hearing. The Court of Appeal heard Mrs S' appeal against Parker J's approach. McFarlane LJ dismissed the appeal. The following points from his judgment will be of interest to practitioners.

Mrs S' conduct during the hearing and particularly noting the extreme number of interjections during the extempore judgment would amount to contempt and Parker J could have quite properly required Mrs S to vacate the court room notwithstanding that she was a litigant in person.

The threshold applying to the section 37 jurisdiction is low (may be appropriate). That applying to section 38 is higher (reasonable grounds for believing) but not as high as in section 31 (the court is satisfied that).

Once the court determines the issue of the low threshold in relation to an ICO, it must then move to consider C's welfare. Separation should be ordered only if C's safety demands it but safety is to be given a broad interpretation and can include C's psychological welfare.

Emotional harm is not less serious, per se, than physical harm.

There is nothing in the CA 1989 or the FPR 2010 which prohibits the procedural course adopted by Parker J. She was entitled to invoke the section 37 jurisdiction in order to make the ICO she deemed necessary. The fact that an alternative approach existed (to allow the LA to make an application for a ICO, as it had intended to do) did not make the judge's approach incorrect.

Restricting expert evidence

It is well established that article 6 of the ECHR requires procedural fairness in the determination of an individuals civil rights. It is axiomatic that in establishing a fair process, parties to proceedings before the family court should have the opportunity to marshal and present evidence to the court to support their case. No party is permitted to put expert evidence before the court unless the court has granted permission for the same (rule 25.4(1) Family Procedure Rules 2010). The court also has a duty to restrict the use of expert evidence under rule 25.1. When the FPR were made, that rule read: "Expert evidence will be restricted to that which is reasonably required to resolve the proceedings." On 31 January 2013 that rule was amended so that the court's duty to restrict expert evidence is strengthened. Munby P in TG (A Child) [2013] EWCA Civ 5 described that amendment to be significant. Now such evidence is restricted to that which is "necessary to assist the court to resolve the proceedings". The impact of the rule change on family proceedings is yet to be seen but it will possibly cause some concern to court users.

In TG (A Child) Munby P explained that "the case management judge will need to assess and evaluate the degree of likelihood that a particular expert's evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed". The father in the case of AB v BB and Others [2013] EWHC 227 (Fam) was a victim; not of the amended rule but the previous (arguably less stringent) rule. The father sought permission to instruct a risk assessor in relation to any risk that he may pose to the child who he sought to have contact with. Theis J refused the application. She explained that did not require that evidence and was able to rely on the assessment of the children's guardian and the live evidence of the father.

Parties cannot underestimate quite the task which is required of them if they are to persuade a court to make a direction that an expert be instructed. This naturally is more of an uphill struggle under the amended rule. Justification as to why an expert instruction is 'necessary' to resolve the proceedings will have to be provided in a strong proposal. The practice directions accompanying part 25 FPR set out how such proposals are to be prepared.

How judges will come to their decisions and construct their reasons will be important, as will any challenged in the higher courts. Munby P said in the Re TG case that: "The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high." To what extent practitioners will be able to rely on such an argument in care cases remains to be seen.

Waving goodbye

The case of A City Council v DC & Others [2013] EWHC 8 (Fam) is possibly the first case where a family division judge has commented on what may constitute an exceptional case under the new legal aid regime which is now firmly in place. In this case King J had to deal the LA's application for revocation of a freeing order made in 2006 in respect of C. Sadly, C was not adopted, nor was the order revoked. He was a statutory orphan in the sense that only the LA held parental responsibility for him as the freeing order extinguishes the parents' parental responsibility. Important guidance is given by King J about how applications to revoke freeing orders should be made and dealt with and this will be essential reading for local authority lawyers.

As for legal aid, the judge was told by those representing the father that legal aid would not be available under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) for former parents in this situation.

There is huge scope for uncertainty and error with the new legal aid scheme, however in my view as such revocation applications are made in the High Court under the inherent jurisdiction, then they would fall within paragraph 9(1) of part 1 to schedule 1.

King J states that such applications to the High Court should be made on notice to the former parents. She also goes on to explain that: "It seems likely that issues of breaches of convention rights may well arise in these relatively rare cases, each of which is marked by the fact that parents have been deprived of their parental responsibility and become 'former parents' on the basis of a plan for adoption which has not materialised.

"That being so, it seems likely that such cases would be regarded as 'exceptional' necessitating legal representation for the parents within the inherent jurisdiction proceedings which have to take place prior to any application for contact/discharge of the care order, applications that do fall within Schedule 1 of the Act."

The replacement to freeing orders is placement orders and legal aid will not be available to parents who are respondents to an LA's application or who, themselves wish to obtain advice about revocation of placement order. Those proceedings do not utilise the inherent jurisdiction.

On the plus side, civil legal services are available for parents seeking to apply for contact with a child who is the subject of a placement order under section 26 Adoption and Children Act 2002. That is stated to be in scope at paragraph 1(1)(g) LASPO of part 1 to schedule 1.