About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 2 May 2008

Taking on the Experts: Part 1

The main Family Law Week website has published an opinion piece by Dr John Fox of Lamb Building on 'Trial by Expert' . I am entirely sympathetic to his viewpoint which raises many interesting issues. I intend over the course of a few posts to deal with possible solutions to the difficulties he identifies.

Firstly, on Cafcass officers. The rules say (FPR 4.11) (4): A party may question the officer of the service or the Welsh family proceedings officer about oral or written advice tendered by him to the court. Cafcass Officers can be questioned. That means all of them, including a Children's Guardian.

You may need to ensure that the officer is available at the hearing (many courts direct that the Cafcass Officer should be available for the hearing but their actual attendance is to be confirmed at the pre-hearing review). You may also need to ensure that the Cafcass Officer is written to about the hearing dates as the notification to them by the court is not infallible.

The Cafcass Officer's evidence of opinion, including their opinion on the truthfulness of a witness, is admissible. However, this does not detract from the court's ultimate responsibility for deciding on where the truth lies. It is for the court to decide what weight to give the Officer's opinion and any evidence on which it is based. You may wish to consider asking for copies of the Cafcass Officer's notes of interviews to be produced rather than the summary which tends to make its way into the report. This is an unusual step and it is best not left to the final hearing itself.

The Cafcass Officer needs to consider the welfare checklist. This can be a good way of cross-examining. Has each relevant factor been given sufficient weight? Has some vital factor not been considered at all? What research base has the Officer relied on implicitly or explicitly (what, for example, is known about the type or quantity of contact which is beneficial for a child of any given age)?

The Cafcass Officer also needs to comply with Cafcass' own service standards & policies . This can be another line of exploration of the Officer's underlying thinking in cross-examination.

The Court of Appeal gave useful guidance on the role of the court & the Children & Family Reporter in the case of Re M (Disclosure: Children & Family Reporter) [2002] EWCA Civ 1199 .

Here are Thorpe LJ's views:

"(i) The relationship between the CFR and the judge is collaborative. Each has distinct functions and responsibilities in the discharge of which each exercises independently both judgment and discretion.

(ii) If in the course of inquiries in private law proceedings the CFR is alerted to the possible abuse of a child he should consider the following analysis:

(a) Is this either:

(i) a discovery or direct report; alternatively

(ii) is the CFR listening to an account of someone else's discovery or to a second-hand report?

(b) If the latter:

(i) Has the information been relayed to social services or the police already?

(ii) Is there a history or pattern of past complaints?

(iii) How plausible is the report?

(iv) Was the informant a party to the proceedings?

(v) If yes, has he put this statement in evidence?

(c) Would the abuse, if established, amount to significant harm or the risk of significant harm within the meaning of s 31?

(d) Is there a need for urgent action? What are the risks of delay?

(iii) The answers that this analysis elicits should help to decide the appropriate course of action. It will seldom be necessary for the CFR to relay second-hand reports to social services. Furthermore such reports are unlikely to be urgent. Accordingly there will ordinarily be no obstacle to consultation with the judge before taking any action.

(iv) The CFR should always be alert to the danger of being enmeshed in the strategy of the manipulative litigant. The independence and impartiality of the CFR are crucial and if one party perceives that the CFR has taken sides with the other the judge's ultimate task, both to promote the welfare of the child and to impress the parties with the fairness of the proceedings, is rendered more difficult.

(v) Where the CFR makes a discovery or receives a direct report an immediate report to social services or to the police may be indicated. In such a situation the CFR must exercise an unfettered independent discretion. The only rule is that he must inform the judge of the steps he has taken at the earliest convenient opportunity to enable the judge, who controls the proceedings, to consider the impact of the development and the need for consequential directions."

The italics are mine to emphasise yet another possible avenue of challenge.

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