{"id":3038,"date":"2024-02-27T12:28:39","date_gmt":"2024-02-27T12:28:39","guid":{"rendered":"https:\/\/unit.law\/?p=3038"},"modified":"2024-02-27T12:28:39","modified_gmt":"2024-02-27T12:28:39","slug":"part-25-applications-and-the-test-of-necessity","status":"publish","type":"post","link":"https:\/\/unit.law\/part-25-applications-and-the-test-of-necessity\/","title":{"rendered":"Part 25 Applications and the test of necessity"},"content":{"rendered":"
Introduction<\/span><\/strong><\/p>\n This article will be exploring the issue of applications for expert evidence under Part 25 Family Procedure Rules 2010<\/a> in light of the recent case decided by Mrs Justice Lieven DBE in West Northamptonshire Council v The Mother v Y <\/i>[2024] EWHC 395.<\/a><\/p>\n The case revolved around an application being made, during the course of care proceedings, for the instruction of a psychologist to carry out a cognitive assessment of the Mother in this case. The case was referred by HHJ Carter, the Acting Designated Family Judge for Northampton, to Lieven J who is the Presiding Family Judge for the Midlands.\u00a0<\/span><\/p>\n The judgment is intended to provide guidance to practitioners in relation to making applications for expert evidence with the key message being underlined that applications should not be granted if the legal test of necessity is not satisfied.<\/p>\n The facts<\/b><\/span><\/p>\n Decision<\/b><\/span><\/p>\n In order to understand the rationale of the judgment, it is worth providing some context should be given as to why the solicitor for the Mother had applied to withdraw the application. This is summarised in Paragraph 13:<\/p>\n \u201cMr Leach on behalf of the Mother said that the application had been made on 22 January 2024 as a \u201cbelt and braces\u201d approach at a point when he (the solicitor for the Mother) had not met the Mother, but counsel at the earlier hearing had. There may have been some discussion at that stage of the LA using the ParentAssess framework when assessing the Mother. Mr Leach said that once he had spoken to the Mother, the evening before the hearing before me, in the light of her excellent progress at the foster placement and his own conversation with her, he had decided to withdraw the application.\u201d<\/i><\/p>\n Lieven J had refused the application on the basis that the test of necessity was not met. When considering the application made by the solicitors for the Mother, Lieven J had determined that there was minimal evidence submitted in support of the application indicating why the Mother\u2019s solicitor believed such an assessment was required. Lieven J determined that there was no evidence or submissions that supported the test of necessity being met and therefore, refused the application.<\/p>\n The judgment was critical of the application being made and that a \u201cbelt and braces\u201d approach indicates that the legal test was likely not being considered when the application was made. The judgment highlights that such misconceived applications are exceedingly common however, waste considerable resources for the family court, the local authorities and Cafcass. [see paragraphs 23 to 24]<\/p>\n The role of Guardians and children\u2019s solicitors<\/p>\n Lieven J had also expressed the opinion that it was unfortunate that the Guardian remained neutral on the application for a cognitive assessment. The solicitor for the child had submitted in the skeleton argument on behalf of the Guardian that the Guardian had met the Mother for nearly an hour in which the Guardian was content that the Mother understood their discussions and that the Guardian anticipated that people working with the Mother may need to spend more time with her and to use simple language.\u00a0<\/span><\/p>\n Lieven J took the view that skeleton argument on behalf of the Guardian made it clear that the Guardian did not consider the test of necessity to have been met yet still remained neutral. Lieven J emphasised that if it is clear to the Guardian and the Child\u2019s solicitor that an application should be refused, then they should make that clear to the Court. The judgment highlights that Guardians and children\u2019s solicitors play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources. Furthermore, the judgment refers to the Guidance from the President of the Family Division to \u201cmake cases smaller\u201d as part of \u201cThe Road Ahead\u201d.<\/p> The Advocates Gateway toolkits<\/strong><\/span><\/p>\n The judgment also carries significant interest in so far as Lieven J had underlined the need for advocates to already be working with parents in care proceedings to be sensitive to the parents\u2019 needs and to be familiar with the techniques and principles as set out in the Advocates Gateway toolkits.\u00a0<\/span><\/p>\n The toolkits were designed to assist practitioners working with parents in how they should adjust their use of language and questioning with parents. This includes when parents give oral evidence. Lieven J had set out the following below:<\/p>\n [21] In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs. I referred to the Advocates Gateway and the need for all those working in this part of the justice system to be familiar with it and apply its principles in\u00a0<\/i>West Northamptonshire Council v KA (Intermediaries)<\/i>\u00a0[2024] EWHC 79 at [46]. <\/i>It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.<\/i><\/b><\/p>\n [22] \u201cIt will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. <\/i>It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway<\/i>.\u201d<\/b><\/p>\n The test of necessity<\/p>\n As part of consideration of the application for a cognitive assessment, Lieven J had observed that a parent being vulnerable was not a sufficient justification for a cognitive assessment to be ordered by the Court. It can be said that the guidance in this judgment makes it clear the Family Court will require more specific submissions as to why the legal test is met. It is certainly worth setting out Lieven J\u2019s observations in full:<\/p>\n [9.] \u201cThe statement in support stated at paragraph 11:<\/i><\/p>\n \u201cThe Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information.\u201d\u201d<\/i><\/p>\n [10] \u201cIt hardly needs stating that these three matters are exceedingly common in care proceedings, and do not begin without further detail, to justify a psychological assessment. <\/i>An application under Part 25 for a psychological\/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent\u2019s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be \u201cnice to have\u201d\u201d.<\/i><\/b><\/p> Key takeaway points<\/b><\/span><\/p>\n It is clear that the purpose of this judgment was to set out a clear message that the Family Court will be very robust with applications for expert evidence. It is certainly no surprise given the recent guidance from the President of the Family Division since \u201cThe Road Ahead\u201d and subsequent guidance for Judges to ensure that the effective use of the court\u2019s resources is being maximised and to make \u201cevery hearing count\u201d. The reality is that expert evidence comes with a cost of money, resources and delay in proceedings at a time when the Family Court is working through a high number of cases.<\/p>\n In light of the above, practitioners should expect the Court to take a more forensic approach to the legal test of necessity for such applications and should expect robust challenge from a judge when they consider an application. Having this in mind, the following points should be borne in mind going forward:<\/p>\n\n
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