ON APPEAL FROM the Principal Registry of the Family Division
Her Honour Judge Hughes QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE JACKSON
|- and -
|1. A Local Authority
3. A B C (by the Children's Guardian)
David Vavrecka (instructed by the Local Authority) for the First Respondent
The Second Respondent did not appear and was not represented.
Jane Rayson and Andrew Powell (instructed by Duncan Lewis Solicitors) for the Third Respondent
Hearing dates: 9 November 2011
Crown Copyright ©
Sir Nicholas Wall P:
"3. The history to the matter is as follows: the father has two cautions for having had sexual intercourse with under age girls and they were accepted by him in or about 2008. At that time the father was 22. He is now just 25. The mother is 41. (ABC) is her fifth child. The others range in age from 25 down to 14 and it is fair to say that there were concerns about her parenting those children. The father met the mother over the internet. ABC was born on the 6th April 2009. Because of the concerns about the mother and the fact that little was know about the father save he has the two cautions to which I have already referred, the Local Authority commenced care proceedings in respect of ABC.
4. Dealing from here on with matters relating to this appeal, it was agreed between the relevant parties that a report on the father should be obtained from the Lucy Faithfull Foundation. The letter of instruction drafted by the father's solicitor is dated 1st June 2009 It asked for an expert opinion independent of the parties, a psychiatric opinion in respect of the father and mother and to answer various questions .. Included therein was the request that if the assessment was that the father's behaviour or conduct presents risk to ABC "please provide comment upon treatment and support programmes including prognoses and timescales."
5. The report was prepared by (SK). Immediately following the referral it was pointed out by the Lucy Faithful Foundation that they did not undertake psychiatric risk assessments and nor could they address questions relating to mental health prognosis and medication. However, it was clear .. that it had been agreed they would consider some alternative questions. The report from the Lucy Faithful Foundation is dated 27th August 2009. (SK) says that he interviewed the father for 6 hours on 2 consecutive days on 10th and 11th August 2009 in order to prepare his report. He says that he discussed with the father not only the cautions but the father talked to him in detail about internet pornography. (SK's) conclusion was that the latter was more concerning than the cautions which the father had. He recommended that the father should undertake the 10 months Sex Offender Internet Treatment Programme organised by the Probation Service.
6. The father has never sought to ask (SK) to amplify or expand anything in his report prior to the Court hearing in July 2010 although he certainly would have been entitled to do so under the rules governing experts within 28 days of receiving the report (see the Civil Procedure Rules rule 36.6 to be found in the Family Court Practice 2009 at page 1654.) The father's initial response to the report was to file a statement which is dated 23rd November 2009 . In that statement the father said that he did not accept (SK's) statement that he had admitted his use of pornography was "excessive and problematic" and while he admitted he used pornography he did not believe that it meant he was a danger to ABC, nor that he presented a risk to teenage girls generally. He said "I would never use pornography in front of a child or in any way which might harm her." He found (SK's) comment that he may have an incestuous relationship with ABC unacceptable and he challenged (SK's) opinion that the father's relationship with the mother is that of a child to an adult. He said he was willing to undertake the treatment programme which (SK) had recommended. By 3rd March 2010 when the father completed his threshold statement he denied the threshold required under section 31 of the Children Act 1989 had been crossed and he did not agree to undergo treatment .
8. At a hearing in March 2010 (the solicitor then acting for the father) applied for the father to have the benefit of a second expert report. The District Judge adjourned the application [in fact he refused it] but agreed to the father asking (SK) to produce his notes. Those were received in good time for the hearing. However the father disagreed with some of the matters (SK) said had been discussed at the hearing and their differences could not be resolved with the notes. (The father's solicitor) renewed his application for a second expert report at the hearing which commenced on 1st July and took two days. The District Judge said that he wanted to hear the evidence and if he considered he needed a second expert report having heard the evidence of (SK) and the father he would go on to order one. The case then proceeded."
The report of the expert
"I do not believe (the father) would knowingly place ABC in more palpable sexual danger or that he does not possess a capacity to acknowledge potentially harmful, even of a sexual nature, scenarios. He does recognise that sex with children is not only illegal but potentially extremely damaging and morally unacceptable. However his sexual risks are more complex and I do have concerns about his ability to recognise risks related to sexual boundaries. These risks are more indirect and are more likely to manifest when ABC is much older. These risks are also more associated with indirect sexual harm such as viewing pornography with ABC present. Also the risk of an incestuous sexual relationship when ABC reached pubescence cannot be ruled out especially if the father was to continue to view pornography without limits, continues to revisit his teenage sexual preference through further offending or through pornography and becomes emotionally isolated once again."
Events leading up to, and the hearing before the DJMC
"d) Findings on Threshold.
1. I was impressed with (SK)'s report and oral evidence. It was evidence accurately based on written notes made at the time. While I accept that anyone can be wrong, there is no evidence to suggest (SK) has lied.
2. I listened to, and read (the father)'s evidence with care.
a) (The father) gives a very different account of his interviews with (SK). He did not, of course, make notes but relies on his memory of what was said.
b) (The father) has not been consistent in his evidence as to those interviews. The contents of his statement dated 2.7.10 is at variance with his earlier statement of 23.6.09. I find his evidence to be inconsistent and unreliable.
c) (The father) now believes that he has no problem (and certainly not a fixation) with internet porn.
d) Having considered the totality of the evidence, I find that where there is a dispute in the evidence of (SK) and (the father), I prefer that of (SK)."
"1. I now turn to the question of what, if any, final order I should make.
2. I have once again considered (the father's) application to adjourn for a further expert report to asses his sexual risk to (ABC). This application is opposed by all other parties to the case. I have found (SK)'s report to be accurate and thorough. A further report would not take this case further. It would, however, delay finalising a case which needs to be concluded. This application to adjourn is therefore refused.
3. Turning to the welfare checklist, this is dealt with thoroughly in the amended final care plan. I adopt its contents. I will deal with (the father)'s contact to (ABC) at a later stage.
4. I have been greatly helped by the Guardian's Report.
5. In view of the history of (the mother) and (the father), I am concerned for (ABC)'s welfare. However since July 2009, following residential assessment, (ABC) has been placed with (the mother) at home. By all accounts (ABC) has done well with her mother. (The mother) has provided good care and has showed she is capable of maintaining those standards. Sadly (ABC) has suffered some ill health (a bone infection and juvenile arthritis) which has needed investigation and treatment. Clearly worry and stress have been caused to (the mother), who seems to have responded and coped well. This is a positive indicator for the future.
6. As far as contact with (the father) is concerned, I find that in view of the contents of (SK)'s report, the proposals for supervised contact made by the Applicants and Guardian are fully justified, at least until such time as (the father) has successfully completed an appropriate course to deal with his sexual risk to (ABC).
7. The history of this family and the difficulties that remain both now, and in the future, mean that an order is necessary to protect (ABC). The totality of the evidence and the progress of (the mother) has made mean that I find a Supervision Order adequate. I adopt the care plan in full."
The judge's judgment
"9. It is perfectly clear from the Judgment of the District Judge that he did not consider he needed a second report, he said he found (SK)'s report to be accurate and thorough
10. The father now appeals against the refusal of District Judge Coleman to grant the second expert report. He points to various cases, copies of which he has helpfully gathered together and presented in a separate bundle, and I will deal with these now. It is clear from Daniels v Walker  1 WLR 1382 that the fact the parties agree a joint expert does not preclude one or other party from seeking a further expert opinion, if appropriate. The correct procedure would be appoint the joint expert, and if for reasons for wishing to obtain a further report are not fanciful the party should, subject to the discretion of the Court, be permitted to obtain that evidence. However from W v Oldham and KPW  EWCA Civ 1247 Lord Justice Wall says that such a second opinion should normally only be permitted where the question to be addressed by the chosen expert goes to an issue of critical importance for the judge's decision in the case. There is a need for the instruction of experts to be stringently controlled by the Court. A distinction might be made between a medical opinion and a non-medical opinion. (see paragraph 40 of the judgment and Re SK (Local Authority Expert Evidence  2 FLR 707). He said that whilst the Guardian might wish to remain neutral in a fact finding hearing, if he takes a view that a second opinion sought by the parents is properly necessary to achieve justice he should not hesitate to say so. In Re SK (supra), Sumner J referred to the factors to be taken into account when ordering a second report: he said experts are in short supply and their reports are expensive for whatever body is funding them. There has to be a good reason to justify any further reports once the first one has been obtained. The learned judge said the way to approach the question of whether there should be a second expert ordered in non medical cases was that the Court should look at the report and ask itself does it appear either fundamentally flawed or biased in approach, it is otherwise wrong, unbalanced or unfair. If the answer to any of those questions is yes, then that may by it be sufficient grounds to justify a second report. If the answer is no, then the next question is the role played by the report. Is it pivotal and can it be challenged without the need for a further expert report? The answers to these questions may be determinative but one needs also to consider the impact of a further report on the timetable for the hearing."
"14. It seems to me that it was entirely appropriate for the father to raise the question of a second expert in the light of his dissatisfaction with the contents of (SK)'s report. However, in my judgment it was also entirely appropriate for the district Judge on 1st July to rule that he would hear the evidence and if he felt that he needed a second report after hearing the evidence of (SK) he would consider the ordering of one at that stage. It seems to me that the Learned District Judge was entitled to come to the conclusion that he did not need a further report having heard the evidence of (SK) and of the father. There was a large factual dispute between them to which I have already referred and in the light of the Father's changes of stance it was quite within the ability of the District Judge to prefer (SK)'s evidence and to accept his conclusions. I do not and cannot conclude that the District Judge's judgement was unfair or it prevented the father's right to a fair trial.
15. As I have already told Counsel for the Local Authority and (the father's former solicitor) I intend to dismiss this appeal. The parties jointly chose the Lucy Faithfull Foundation to undertake the work and the letter of instruction was written by the father's solicitors. That organisation was undoubtedly chosen because of its expertise in the field of sexual offending. The father was perfectly willing to undertake treatment when he filed his statement in November; his position had changed by March 2010. At the interview the father accepts there was a discussion about pornography which (SK) in his position at the Lucy Faithfull Foundation put weight on when reaching his conclusion. I repeat that the District Judge in my view weighed the evidence and was entitled to reach the conclusion (SK) was a more reliable witness in the light of the father's prevarications and in the light of the evidence he heard. He was entitled to conclude he did not need a second opinion. He was entitled to proceed on the evidence he had in the circumstances he felt able to do so. As I pointed out to (the father's former solicitor) during the course of the evidence in the case there is really no particular property in such terminology as "sexual fixation" and that, for example, in a case where a man in front of me spent time plotting with which woman he might spend the night and he spent each night with different women, I might refer to him as a person with a "sexual fixation". I do not agree that it was only possible for the father to get a fair trial had a second expert been appointed or that a second expert's opinion was necessary in order for (the father's former solicitor) fairly to cross-examine (SK). That would certainly be fallacious if the second expert agreed with (SK) and it seems to me it is flawed in any event. I dismiss the appeal."
"It is, of course, not enough to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
"13. Re-read the experts' Practice Direction at  2 FLR 1383. Remember always that it is your case and your decision. An "expert" can only be instructed if you agree, and the function of the expert is "to provide an opinion about a question that is not within the skill and experience of the court". So always ask yourself: do I need this additional report to enable me to make a fair and proper decision? What can this expert add or contribute to the case? If the answer to the first question is "no" and to the second "nothing" you are unlikely to order a report.
14. Process is important in family law, and every hearing you conduct must be ECHR Article s 6 and 8 compliant. This does not, of course, mean that you must accede to every parent's application for a second opinion: each decision is a matter of judgment. What is important is that your conduct of the proceedings is transparent and your conclusion is fair to everyone, including the child. Remember that the decision is discretionary, and that the exercise of discretion inevitably involves balancing different factors in the manner I have already described before reaching a reasoned conclusion.
15. Always bear in mind the effect which any order you are being asked to make has on the time-table for the case.
16. Always remember that issues of fact and credibility (who is believed and who is not) are matters for you, and not for the expert."
Mr Kirk's argument
(1) that by following Sumner J in Re SK (Local Authority: Expert Evidence)  EWHC 3289,  2 FLR 707 (Re SK) the judge had fallen into error by applying "a more restrictive" test, which was capable of leading to unfairness;
(2) that both the DJMC and the judge had, as a consequence, made an unwarranted causal leap from the father's historical interest in teenage sex to an order for supervised contact;
(3) that there was scope for unfairness in dividing expert evidence into the medical and the non-medical and applying different criteria to each;
(4) that although the father had been guilty of delay in not appealing against the initial refusal of a second medical expert, the delay would not have been material;
(5) that whilst the court had to take the cost of obtaining a second expert's report into account, cost should not be a paramount consideration: equally, the "scarcity of resources" test, if over-used, was capable of leading to unfairness; and
(6) the proper approach was to allow a party to have a second opinion. Not to so do ran the risk of compromising the fairness of the proceedings and could also give rise to a breach of ECHR Articles 6 and 8.