The use of experts in private children’s proceedings

Disputes may arise if parents are unable to agree arrangements for a child, such as where they will live and spend time, if one parent wishes to relocate or if there are specific issues relating to parental responsibility, such as where a child should go to school or the change of a child’s name for example.

The process for any proceedings will vary, however they typically follow a three stage approach as follows. There may be additional hearings, such as directions or fact finding hearings, depending on the nature of the case and the issues that arise.

1.First Hearing Dispute Resolution Hearing (FHDRA)

An officer from Cafcass (the Children and Family Court Advisory and Support Service) normally speaks with the parents before the first hearing to understand the issues and any safeguarding concerns. The Cafcass officer will prepare a safeguarding letter to the court, setting out their recommendations as to next steps.

If appropriate, at the hearing the judge will direct the Cafcass officer to prepare a report as to what is in the best interests of the child, known as a Section 7 report. This will normally involve the Cafcass officer meeting with the child and both parents. Cafcass provide a public service, meaning that parents do not pay for a report compiled by Cafcass.

The court may make other directions, for example with regard to filing of witness statements, other evidence or involving other experts in complex cases. The court may direct a “fact finding” hearing where there are allegations of domestic abuse or harm.

2.Dispute Resolution Hearing (DRA)

The hearing is an opportunity for the parents to try and reach an agreement with the assistance of Cafcass and the court where appropriate, so as to avoid a final hearing.

If a Section 7 report has been prepared, this will be available for consideration at this hearing. The court and parents will consider the recommendations made by Cafcass in relation to the future child arrangements, alongside any other evidence.

3.Final hearing

If an agreement cannot be reached beforehand, a final hearing will take place where the judge will make a final decision and order. Both parents (and any other witnesses) will attend and give evidence. The Cafcass officer may also be directed to attend and give evidence.

The use of experts in private children’s proceedings

The welfare and safety of the child is paramount. The judge will listen to everyone involved in a case before making a decision about what is in the best interests of the child. This includes evidence presented by the parents together with any experts involved in the case, such as a child’s guardian, social worker, a psychiatrist or psychologist for example.

Child’s guardian

In some circumstances, the court may order that the child is made a party to the proceedings and appoint a guardian to represent the child.

Child’s guardians are qualified social workers, trained and experienced in working with a child and their family, who are appointed by the court to promote the child’s welfare, represent their wishes and feelings in the proceedings, and to make sure that the arrangements are in their best interests.

The guardian appoints a solicitor to represent the child.

Local Authority

As an alternative to the court making an order that Cafcass prepare a Section 7 report,  the court can make an order that the Local Authority prepare a welfare report, known as a Section 37 report.

The Local Authority will need to investigate the child’s circumstances and decide whether it is necessary to take further steps to protect a child, such as applying for a care or supervision order, providing services or assistance to the child and/or family, or taking any other action. The report should deal with the child’s wishes and feelings when they are old enough to express them.

Independent Social Workers (ISWs)

Permission may be granted for the parties to instruct an ISW to prepare a welfare report. There are a number of reasons that parents may want to instruct an ISW, including:

1. the court does not deem a report necessary, but a parent is sensitive that their child’s needs/welfare should be assessed before the court determines any issues;
2. the child has particular needs that demand a comprehensive report conducted by an individual with expertise in those needs, but there are no safeguarding concerns so the court did not see fit to order a Section 7 report; or
3. an ISW may compile their report in a shorter time, shortening the timetable for determining any issues. Whilst Cafcass should be able to provide their report within 12 weeks , it often takes much longer which can be detrimental to the child’s welfare or exacerbate the existing issues for the parents and/or child.

ISWs can be appointed by agreement between the parents or by an application to the court. The court will need to consider the report necessary before directing the ISWs involvement in the case. ISW reports are privately funded and so the parties will need to consider how the ISWs costs will be met.

Psychologists

A psychologist may be instructed in proceedings when their expertise is necessary to make decisions in the case. A psychologist can provide individual and collective psychological profiles of different family members. They can undertake comprehensive assessments that take into account developmental, psychological and social issues.

Techniques will vary amongst psychologists, but an assessment will usually include a combination of evidence based psychometric tests, in depth interviewing, observations and a review of other professionals records.

Psychiatrists

A psychiatrist may be instructed in proceedings where an assessment and diagnosis of a range of mental health conditions is required.    An expert psychiatrist may be asked to prepare reports in proceedings requiring an in depth consideration of a child and/or parent’s learning difficulties, disabilities, personality disorders, abuse, mental capacity or developmental issues, for example.

If you have any questions about any of the topics discussed in this article, please get in touch.