Private Law
December 2022

This was an appeal against a case management order in private law proceedings under the Children Act 1989 relating to a boy, ("A"), now aged 8. The order under appeal permitted the parties to instruct a named independent social worker to carry out an assessment to assist the court to determine issues relating to child arrangements and education. The expert named in the order was a woman. The appellant father proposed that the assessment should be carried out by a male social worker asserting that the order permitting the instruction of a female social worker was an infringement of his human rights. The appeal against the order permitting the parties to instruct Ms Marcano to carry out the assessment was dismissed.

Background: The parents were both raised as members of the Hassidic Haredi Orthodox Jewish community. On 27 January 2022, the father applied for child arrangements and prohibited steps orders under s.8 of the Children Act 1989, seeking a defined order for contact, including staying contact, and an order preventing the mother from changing A's school. On 10 February 2022, the court made an interim prohibited steps order preventing the mother moving A from Y School until further order. The mother subsequently filed a C2 notice of application seeking a specific issue order that she be given permission to transfer A from Y School to the school closer to her current home.

On 23 March 2022, in accordance with the Child Arrangements Programme in Practice Direction 12B, a Cafcass Family Court Adviser completed a "safeguarding" letter recommending that there be a further assessment by way of a report under s.7 of the Children Act 1989 to be completed by Cafcass addressing whether either party posed a risk to A; the impact of the concerns raised about domestic abuse and mental health; recommendations for arrangements for A to be able to spend time with his father; the impact of a change of school on A in terms of his emotional wellbeing and identity; A's wishes and feelings, and any other matter considered relevant to A's welfare.

On 25 March 2022, the father filed an application under Part 25 of the Family Procedure Rules seeking the court's approval for the appointment of an independent social worker to carry out an assessment. The expert identified in the application was Ms Sue Leifer, whose curriculum vitae attached to the application stated that she had experience working with families from many ethnicities "including the Charedi community". The application proposed that Ms Leifer "undertake a s.7 assessment".

On 20 July, a further case management hearing took place before HH Judge Clarke. The issues were (1) the identification of the independent social worker to be appointed under Part 25 and (2) whether, as the mother proposed, her specific issue application relating to schools should be listed separately for an earlier hearing. After hearing oral submissions, the judge delivered an ex tempore judgment. At paragraph 6, the judge noted: "Father seeks to argue he would have difficulties speaking to a female social worker and also sought to argue that it would not be compliant with his Haredi tradition. That was not raised in Father's position statement, or his previous witness statement, at all." The judge continued: "9. Father seeks to argue Article 6 rights, including arguing that fairness demands that the Court should instruct an expert which the parties have confidence in. The Court's attention has quite rightly been drawn to the Equal Treatment Bench Book which talks about the parties generally, and overall everybody, needing to have confidence in the justice system”.

The judge noted that, as the issue related to case management, the child's welfare was relevant but not paramount. He reminded himself of the overriding objective in the FPR.

At paragraphs 16 to 18, the judge set out his decision on this issue and the reasons for making it.

"16. The instruction of an expert is normally based around three fundamental factors: whether the proposed expert is suitably qualified, what the cost is and when they would be able to provide the report by.

17. It is accepted that each of the experts is suitably qualified. Mr Power is considerably more expensive and Mr Power is going to take longer. In those circumstances, in normal situations the Court would not authorise the instruction of Mr Power and the Court has heard nothing today which would cause the Court to change that view.

18. As far as Ms Mercano and Ms Lyons are concerned, they would appear to be roughly similar in cost although Ms Mercano specifically confirms that she is prepared to work at legal aid rates. The flipside is that she does not put a ballpark figure on how much it would cost. But in the circumstances and given the fact that she has confirmed that she is prepared to work at legal aid rates, the Court is satisfied that the appropriate expert in this case is Ms Mercano."

Following judgment, the father applied for permission to appeal against the judge's decision that Ms Marcano be instructed and applied for the judge to recuse himself on the grounds that the refusal to appoint Mr Power in the light of the father's objections demonstrated that the court did not have regard to the cultural reasons for the father's objections. The judge rejected both applications.

On 8 August, Sir Andrew McFarlane P granted permission to appeal against the order appointing Ms Marcano but refused permission on the recusal issue.

The appeal: For the hearing of the appeal, Mr Christopher Hames KC instructed on behalf of the father stressed the importance which the father attached to the substantive issues in the case, in particular education, citing the observations of Munby LJ in Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677 at [16] to [19].

On the importance of procedural fairness, Mr Hames cited a passage from the recent decision in A (A Child) (Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221, which reiterated that the starting point for the protection of human rights was the domestic law rather than the Human Rights Act 1998. As Lord Reed stated in R (Osborn) v Parole Board [2013] UKSC 61 at [57],"Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate." Referring further to observations of Lord Reed in Osborn at [68] to [70], the Appeal court said (at [30] to [32]):

"30. …. When setting out the values which underlie the concept of procedural fairness, Lord Reed pointed out that the purpose of a fair hearing is not only that it improves the chances of reaching the right decision. Those values also include the avoidance of the feelings of resentment which will arise if a person is unable to participate effectively in a decision-making process which affects them. In this way the law seeks to protect the value of human dignity.

31. As Lord Reed put it at paragraph 68:

'… justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.'

32. These principles apply to all litigation, including in the protective jurisdictions in the family courts and the Court of Protection. The fact that the welfare of a child is the paramount consideration in proceedings under the Children Act 1989 and the inherent jurisdiction relating to children, and that any act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests does not obviate the requirement for a procedure which pays due respect to persons whose rights are significantly affected by such decisions. The specific procedural requirements will, however, be tailored to take into account the nature of the protective jurisdiction and the extent to which such persons are permitted to participate will depend on the specific circumstances of the case."

Discussion: Baker LJ noted that 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. Adding that “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. 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."

Baker LJ concluded that “In my view, the judge was fully entitled to reject the father's human rights arguments. There was no reference to Article 9 [Article 9 provides an unqualified right to freedom of religion and a qualified right to manifest a religion] 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”.

Furthermore, it was noted that “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”.

Baker LJ added that the judge had 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”.

Decision: The appeal against the order permitting the parties to instruct Ms Marcano to carry out the assessment was dismissed.

This was an appeal before Mrs Justice Lieven against the decision of the Family Court at Stoke on Trent, before the Lay Magistrates, dated 18 October 2022. The decision in question was not to allow either parent to be cross-examined. The Mother appealed that decision. Mrs Justice Lieven concluded that the Bench acted well within their case management powers and that they did not prejudge any issues in a way which would lead to a breach of natural justice.

Background: The parties are the mother ("M") and father ("F") of X, an 8-year-old girl. In March 2021 the M applied for X to live with her and for her school to be changed from close to the family home to the town where the M was living. The F made a cross application for the child to remain living with him and to remain at her existing school.

The matter was listed for a fully contested final hearing with a time estimate of a day on 18 October 2022. The Cafcass officer who had written the section 7 report was in attendance. The Lay Bench determined that the matter should proceed without either party being entitled to cross-examine the other.

The Law: The starting point is Family Procedure Rule ("FPR") 22.1, Power of court to control evidence. The Court's approach to an appeal against a case management decision was considered by the Court of Appeal in Re TG (A Child) [2013] EWCA Civ 5, of note are passages [24] to [38].

The Court of Appeal clarified that the test for an appeal was whether the decision was "wrong", rather than plainly wrong, Re P [2014] 1 FLR 824. The test Mrs Justice Lieven therefore applied is whether the Bench's decision was wrong.

Decision: Mrs Justice Lieven’s view was that the Court's decision fell within the scope of their case management powers and discretion. The starting point is that there is no right in any party to cross-examine and this is made entirely clear by FPR22.1. It is open to the Court to limit cross-examination where it is fair and proportionate to do so. This must include the power to prevent cross-examination altogether given that FPR22.6 provides that the Court can order that a witness should not be called at all.

Mrs Justice Lieven’s then went on to consider whether, on the facts of this case, the decision not to allow cross-examination of the parents was one that fell within the Bench's case management discretion. The test in FPR30.12(3) is whether the decision was unjust because of a serious procedural error. Munby LJ in Re TG at [36] said that in a case management appeal there would need to be a "serious error" and the case management judge would have to "have gone plainly wrong". Mrs Justice Lieven concluded that, in this case there is no such error.

Mrs Justice Lieven’s view was that the Bench acted well within their case management powers and that they did not prejudge any issues in a way which would lead to a breach of natural justice. Finally, Mrs Justice Lieven noted that the Bench adjourned the case to allow the mother to appeal and added that courts in this situation should carefully consider whether it would be more effective and proportionate to continue with the hearing and then for any appeal to be based on the substantive outcome. Mrs Justice Lieven added that “it is possible that the grounds for appeal would thereby fall away, and it would have the obvious benefit of not building more delay into the determination of the case”.