England and Wales Family Court Decisions (other Judges)

In The Family Court sitting in Bristol                                                         No. BS17 C00199

Between

South Gloucestershire Council                                                                   Applicant

And

A and B

And X through his guardian                                                                         Respondents

Judgement from the hearing listed on the 4, 5, 6 December 2017

Handed down 24 January 2018

This judgment was delivered in private. The judge has given leave for this

version of the judgment to be published on condition that (irrespective of what

is contained in the judgment) in any published version of the judgment the

anonymity of the children and members of their family must be strictly

preserved. All persons, including representatives of the media, must ensure

that this condition is strictly complied with. Failure to do so will be a contempt

of court.

DJ Howell;

1. I am concerned with the welfare of a young boy X who is 1 year old at the time of this hearing.
2. His parents are A mother and B father.
3. These are care and placement order proceedings brought by SGC. Their care plan is for X to be placed for adoption outside of his family. X has been with his parents at home since these proceedings commenced.
4. This was listed as a final hearing for 3 days.
5. At the start of day 1 I was alerted to the fact that not all of the historical information as to the proceedings for mother’s older children by her previous partner, which appears in section G of the bundle, had not reached the jointly instructed experts in this case; Dr Rees psychologist and Ms Hall SW trading as Independent Opinion, before Friday last week and certainly not before they completed their reports. I was asked by the parents to adjourn the final hearing at that point and declined, giving a short judgment, deeming it sufficient for the experts to read section G and giving them time to do so before starting. I was informed that the experts were content with this approach, indeed in her evidence to me Dr Rees said that they had assumed that the absence of such information had meant that the parties wanted to avoid their conclusions being coloured by the past and for them to look at the situation for X alone, something which she saw as a virtue. In any event, having read them, they informed me that the further papers did not change their opinions.
6. I have now heard the evidence of Dr Rees and Ms Hall and submissions on that evidence from the parties. It is interesting to note that those at the bar are effectively of one opinion as to the way forward so far as the expert evidence is concerned.
7. I have been forced to adjourn this hearing having heard the expert evidence because all parties ask me to and I am satisfied that a further assessment/evidence is necessary to enable me to fairly deal with this case. I have given directions for that to be commissioned/obtained. I am giving what I hoped would be a short judgment at this stage for a number of reasons. Among those are;
1. To avoid the expense of a transcript of this hearing.
2. So that Dr Bird, who is now undertaking those further assessments  can see the reason for them being requested
3. To explain the delay in reaching a conclusion for X and why we will be even further outside the 26 week timetable for this child
4. To identify those elements if any of the expert evidence which I have heard that I accept and the impact of that on the analysis of issues that I have to consider in this case.

I say had hoped because as will be seen from the addendum to this judgment it has turned out to be far from that.

8. The evidence of Dr Rees and Ms Hall was given to me jointly from the box in what I described at the time as a modified form of what has become known as “hot tubbing”. Though of course unlike true “hot tubbing” these experts were in complete agreement as to their evidence because they had produced a joint report. In the end Ms Hall said very little and indeed left before the end of the evidence with the agreement of the parties.
9. Dealing firstly with their evidence in regard to mother. Dr Rees was cross examined at length by mother’s counsel Miss Knowles as to the methodology and findings of her CARE Index assessment (which for ease of reference I shall refer to as the CIA). She explained that the CIA assessment is a clinical tool deployed by specially trained psychologists to assess the emotional relationship between a baby and its parent. Her evidence was that it was difficult to assess attachment behaviours in very young babies/children (she said up until aged 3) and how the care that they were receiving from their parents impacted upon those behaviours. The CIA enables the psychologist to assess a very short period of care, by a parent, in this case as little as five minutes, and by using codes identify the interactions by both parent and child so as to enable them to be analysed.
10. Dr Rees first deployed this test with mother during her first assessment session with her alone and it came at the end of a period of the interview when mother had been open and honest about her childhood and early life experiences. Dr Rees observed that mother was very anxious about doing this and therefore when the test was undertaken she was in a heightened state of anxiety. A state which Dr Rees observed was one mother would live with on a daily basis when other situations/life experiences provoked anxiety stemming from the trauma mother suffered in the past. In Dr Rees’s view that constituted a fair test of the impact of mother’s anxiety state upon the relationship between X and his mother. The results of the first time she applied the test appear at E 30 in the bundle. At 16.5 Dr Rees reports “the absence of any shared interaction and enjoyment between mother and X was very concerning”. Dr Rees redeployed the test after a break and the responses remained the same.
11. At E 31 Dr Rees reports that she conducted the test again on the second occasion that she saw mother and observed very similar results with X “avoiding her eye contact again throughout the assessment”. Dr Rees’s concluded from those tests that X was classified as at high risk of emotional harm in his interactions with his mother. At E 31 16.12 Dr Rees sets out the consequences for X of that sort of emotional interaction in the longer term which essentially boils down to a disruption of X’s attachment behaviours.
12. Dr Rees repeated the CIA assessment in August. She reported that mother was once again highly anxious, this time about the assessment itself and it was a high pressure situation for her. By then mother knew that the local authority’s plan was for adoption. On that occasion the test was applied for 15 minutes. At E 50 Dr Rees observed that mother found herself unable to follow X’s lead and although she praised X on a number of occasions she also referred to him as “ignorant, lazy, heavy and big clumsy boy” demonstrating in Dr Rees’s view an underlying irritation with X. Unlike the previous tests X did glance at his mother at times and this “occurred relatively regularly”. However none of those glances were sustained and none of them led to a shared interaction and when X smiled those were almost always instigated by X and from his response to a toy rather than originating from mother. Dr Rees concluded that at no point during the assessment was there “any evidence of shared enjoyment between mother and X”. In the context of such an assessment I understand that ‘shared enjoyment’ is a term of art and has greater significance than it’s colloquial meaning. Dr Rees described the observation of mother’s interaction with X as being painful. Something she confirmed in her oral evidence to me. It is clear that mother tried very hard to improve in that assessment. At the conclusion of that repeated test Dr Rees concluded that X remained in the high-risk category for a number of reasons which she sets out at E 51 paragraph 5.2.
13. In her cross examination, Miss Knowles sought to challenge Dr Rees’s conclusions and observations from the CIA’s. She highlighted the fact that the health visitor, the Guardian and indeed the social worker had all commented on observing the warmth of the relationship between mother and X, albeit in the case of the SW that that was qualified as set out in the parenting assessment. Dr Rees was very robust in her response and having heard Dr Rees I was willing to accept her evidence that as she has been specifically trained to deploy the CIA as a clinical tool she was best able to give me expert evidence on the interaction between mother and X and the significance of that. The distinction that her evidence lead me to strike was between observations of a general nature as to the apparent warmth of the relationship between mother and child and a clinical analysis using a specifically framed tool, of the detail of that relationship and its implications for X and his attachment behaviours longer term if mother is not able to overcome her inherent difficulties and improve the quality of her interactions with X. I found it particularly persuasive at the time that Dr Rees had deliberately deployed the first CIA in a set of circumstances which would most closely model the daily lived experience of X in mother’s care; i.e. where her anxiety state was triggered and manifest and had carried out the further tests in different circumstances to enable comparison. That seemed a sensible methodology and likely to yield useful information for the court.
14. Dr Rees was asked whether she felt that the other professionals referred to above had got their observations wrong. When pressed she said eventually that she thought that they had. In effect her evidence to me was that with her training in the deployment of the CIA and the use of the tool raised the quality of her observations of the relationship between X and his mother above those of the other professionals. In short they had missed what she had seen because she had used the tool that was needed to see it.
15. One aspect of her evidence that she gave me, that was of specific concern to me was that if I accepted her evidence as to what she had observed, it would inevitably lead me to conclude that the tests revealed that X was already suffering harm through mother’s care due to disruption of his attachments. This went to the current threshold which is based solely on future harm.
16. In addition to setting out the CIA analysis Dr Rees also observed that mother fitted the profile for an avoidant personality disorder. At E 33 she sets out at 18.18 the criteria for that and observes at 18.19 that the difficulties are pervasive, that is they extend to many aspects of mother’s life. As I read the evidence, that type of disorder results in mother having a sense of being scrutinised and criticised by professionals which makes working with such professionals to protect X very difficult for mother. Mother would find it very difficult to be open and honest with professionals and mother will avoid issues and contacts with professionals.   And that chimed with what the social worker reports at C 12 “ongoing patterns continue to emerge whereby parents have largely refuted the need for support; not accessed that which has been agreed and provided; not meaningfully engaged in assessment and not fully adhered to safeguarding plans”. Dr Rees also informed me that the disorder also leads to mother displacing blame onto others and failing to accept responsibility for her own deficiencies.
17. In answer to Ms Reed for X, Dr Rees advised that she observed mother as having 2 levels of stress; “I’m fine everything is fine and it is all down to the professionals” or when in Dr Rees view she was being more insightful she “felt like a shell [having] suffered significant losses and experienced no connection between the inner and the outer level and found it difficult to process information”. She records in her report mother describing being in a dissociative state at times. The risk to X from this is that as Dr Rees put it a young child needs “an available mind in a parent and if not available that will have a significant impact on X’s mental health and emotional issues in the future”.
18. Dr Rees was of the opinion that mother did not as yet have sufficient insight into her problems such that she would be considered to have moved from pre-contemplative to being contemplative of effecting change. She was very sceptical as to the efforts that mother had made. Following her first interview Dr Rees provided mother with the letter for her GP to help her access treatment but that had not resulted mother accessing psychotherapeutic care, which is what she needs. Dr Rees saw this to be a further manifestation of the avoidant personality disorder. Dr Rees’s view was that mother will find it very difficult to access help in the first instance and having accessed help sustaining her attendance at therapeutic sessions particularly when those become challenging or provoke in her anxiety as they inevitably will. It was put to Dr Rees that mother has started to make changes. She accepted that if mother had then that would be a positive, whilst remaining sceptical due to her assessment of mother’s APD.
19. At the conclusion of Dr Rees’s evidence in respect to mother, the conclusions I would have drawn from it were;
1. That unless mother can effect the changes she needs to through accessing the treatment she needs, if she is the sole carer for X, he will be at significant risk of emotional harm in the future.
2. On the basis of the evidence from the CIA, that harm may already have started.
3. That it was probable that mother will struggle to access that treatment and follow through with it due to the APD and will find it difficult to change
20. At the conclusion of their first report on mother Dr Rees and Miss Hall posed the question as to whether father was capable of offering the resilience needed to compensate for mother’s problems and/or offered any increase to the obstacles that mother faced. Their report in respect to father appears at E 53. At E 70 22.6 they concluded “it is my view that father brings a number of risks to the relationship with mother including a significant risk of controlling angry behaviour” and effectively they did not find that he offered the resilience necessary to compensate for the deficiencies in mother they had identified and indeed probably presented further risks and obstacles for her.
21. However when Dr Rees came to give evidence in respect to father I found her evidence very concerning.
22. When I first read the report on father I was concerned at the apparent lack of evidence for the conclusions of Dr Rees drew about father and which appeared to be the basis for her opinion. However I accept that we expect analysis from our experts and these days we do not expect them to set out the detail of the data upon which they base their conclusions, certainly not in the corpus of their report. In Dr Rees case it was apparent that she had conducted interviews with father, though I noted that those were not backed up with any objective testing of father, unlike mother, at least not on the face of the report.  I looked to her oral evidence to clarify from what evidence she was drawing her conclusions.
23. Unfortunately what emerged from the very careful cross examination of Dr Rees by Mr Jenkins for father, was that Dr Rees had drawn many of the conclusions she had come to in her report and which appear at E66-67, from things said about father which had never in fact been proven. Something she was forced to concede in cross examination. She conceded that she had based her final opinion of father upon those conclusions. In doing so she had clearly confused her role as the expert with that of the judge. If a piece of evidence was relevant to her conclusions but she knew it was not proven then she should have highlighted that fact and given her view in the alternative on the basis of that fact being true or not. In that way the court could then determine the truth or otherwise of that fact and apply the right conclusion. Though she knew the facts were not proven she did not do this. She accepted them and gave a single opinion. In so doing she was not fulfilling her duty to the court as an expert witness. 
24. Dr Rees did not assess the relationship between the parents. She accepted that was an omission. I accept that the sequential manner in which she was instructed might have affected this but as an expert of her experience; 19 years assessing families, this was a very stark omission. I found the fact that she had not done so surprising. Particularly as she was drawing conclusions about the nature of that relationship; concluding that it was likely to be controlling and aggressive on father's part. That is even though as she conceded there was no evidence of any domestic violence within the parents’ relationship.
25. In the course of her oral evidence she made ad hoc amendments to her report, one in particular being of some significance demoting the risk of father being a significant risk of displaying controlling and aggressive behaviour from “significant” to just “a risk” and conceding that she should not have said significant in her report on the evidence she had.
26. She asserted that father was a person who found it difficult to process emotions. That appeared to be based in part upon the fact that he could not remember how he had felt when he returned to his mother’s care aged 10. Father is now in his 50s. Whilst I accept that that would have been a significant emotional event and I even accept Dr Rees’s assertion that father should have remembered it, it did strike me that her evidence for this very broad assertion was unconvincing.
27. Dr Rees drew conclusions from what she saw as discrepancies in father’s account of his criminal history, having obtained his PNC after she completed her interviews. However she did not ask to speak to him about those again before drawing her conclusion that he was not being honest with her.
28. It is not possible to determine the evidence upon which she based her conclusion that father “is likely to become angry in the face of feelings of vulnerability anxiety and stress” that he “experienced by others as controlling and frightening” and that he is “motivated to cover up anything that might be problematic in terms of his relationship with mother” .
29. To be fair to Dr Rees father did not help himself in her assessment. He failed to attend for the first prearranged meeting with him without good explanation. I suspect that immediately set the assessment off on a bad footing and certainly increased Dr Rees’s suspicion of father that he was not being open with her. An impression Dr Rees felt he reinforced by not discussing certain issues with Dr Rees as fully/accurately as she would have liked.
30. Dr Rees stated that she had struggled to carry out the assessment because father gave her so little to go on. At one point when asked if father was pre-contemplative she said with some irritation “I don’t know what he is contemplating”. Though at the same time she conceded that father did not present to her as expected. When he failed to attend his first appointment she expected someone who would be monosyllabic but he was in fact willing to speak to her. I fear that Dr Rees betrayed here some degree of prejudgment of father from his failure to attend her first appointment.
31. Finally having had all of the sources of the “evidence” upon which she based her conclusions and final opinion upon successfully challenged by Mr Jenkins, Dr Rees was forced to fall back on her opinion of him being based upon “a feeling” informed by her clinical experience. Given the serous nature of her recommendations; that X be removed from his parents’ care I am afraid that I do not think that was a valid basis for making her assessment.
32. Dr Rees conceded that if father was the primary carer for X then that would be a positive which appears to run contrary to her overall assessment and seems to be an idea that occurred to her whilst giving her evidence. Again to be fair to her it must be noted that it is reported by the social worker at C 20 that “father presents as taking on a secondary and supportive role in parenting baby X. He has been observed to support mother in planning for, thinking about in meeting the safety needs of X…”.The expectation was that motherwould bethe primary carer and father would pursue his work. However the possibility of him taking on a greater role appeared not to be an aspect of the case that Dr Rees had discussed with either father or mother.  
33. Her oral evidence confirmed that she did not undertake any empirical testing of father to gather evidence to support her conclusions.
34. At the end of Dr Rees’s evidence in respect to father I found that I could not rely upon her assessment of him. She had not persuaded me that she had the evidence to draw the conclusions which she did and make the assertion that father could not provide the resilience needed to compensate for mother.
35. The worrying aspect of her evidence in respect to father is that with such serious orders being sought it would appear that although she did not seem to have enough or robust enough evidence, Dr Rees had drawn the conclusions she did and it seemed to me had simply erred on the side of safety based on how she felt about father. She is an experienced expert witness and if she found herself unable to answer the questions put to her, she should have gone back to the lead solicitor to alert him of that fact. She did not do so.
36. Whilst we expect experts to provide analysis and their expert opinion in their reports and not just churn out data and chronologies, that analysis and opinion must be based upon evidence and in Dr Rees case it was clear to me she did not have that evidence.
37. Overnight between day 1 and day 2, the parties’ counsel investigated the CARE index Assessment online and sent me 2 links; one to a paper introducing the CIA Assessment and setting out its methodology, at least at the time that the paper was written i.e. 2005 and another link for the training website for Dr Crittenden, who apparently offers training in the CIA, from a later date. Following on from that the parties wished to raise a number of urgent questions of Dr Rees and I gave permission for those questions to be asked and ordered Dr Rees to reply by 9 am on day 3.
38. We now have Dr Rees’s replies which I have read carefully. They are accompanied by copies of her handwritten notes of her observations of X and mother. Her reply to the implied criticisms of her methodology is as robust as her response to the criticisms levelled at it in cross examination.
39. However those replies reveal several things about the CIA’s she undertook.
40. Firstly she does not raise any challenge to the relevance of the documents that were copied to her in those replies.  I pause here to observe that in respect to those documents I must proceed with some degree of caution. Dr Rees was not cross examined on the documents that counsel have since identified. They are public documents and she could have been. She may have had something to say about the relevance of them to the work she undertook with mother. They were copied to her and she has chosen not to do so in her written replies but that might be an oversight on her part. After all she was asked to reply at short notice.
41. However Dr Rees did not video the interactions that she observed between mother and X. The training site document is explicit “such observations cannot be treated as reliable when video is not used”.In her reply to question 3 Dr Rees says that the video is used principally in research settings. However the document from the training website is explicit that the reference to non-use of video affecting the validity is in the context of use of the assessment outside of the research arena by“….clinicians and social workers”.
42. From the notes and from her reply to question 5 it is clear that she did not score the tests. Though in her evidence to me as to the validity of applying the test she did state that the tool involved such coding. She says she did not code the interactions because her observations of X and mother were clear cut to her and did not fall into “the grey area”. As Miss Knowles submitted to me this leads one to conclude that the test becomes an exercise in Dr Rees’s clinical judgment. This has two repercussions. Firstly it brings into question the assertion made by Dr Rees that her observations of the relationship between mother and X had a validity elevated over the observations of the other professionals because it was based on the use of a clinical tool. Secondly it means that rather than being an empirical objective test based on data analysed using a standardised clinical tool, it is in fact a subjective test based on Dr Rees’s clinical experience, much like her assessment of father.
43. The 2005 document obtained by counsel makes it clear that “Most people need to code 100-150 adult-infant interactions with feedback before they become confident quick andreliable”.In her reply to question 2, Dr Rees makes it clear she has used the CIA 15 times over 4 years since being trained. I have no evidence that she has had feedback or undertaken supervision for her use of this tool and from her reply to question 1 we know she has not had any updating training. In my judgment this goes back to the issue of video recording. Surely an expert who has done less than the required number of observations would record those she undertook, for the purpose of going through them again later to check that nothing was missed and for the purposes of supervision and feedback. Particularly where they were being relied upon to make such serious recommendations. The fact Dr Rees did not do so is regrettable at the very least and extremely worrying.
44. Unfortunately these deficits combined with my findings in relation to Dr Rees’s assessment of father must cast doubt on the validity of her assessment of mother both under the CIA and generally.
45. I wish to make it clear that I am not doubting that the CIA used correctly would be a valuable tool in exactly the way Dr Rees described it to me in her evidence in chief. In this case I simply am not satisfied that it was used correctly by Dr Rees and that she is entitled to draw the conclusions she did from it.
46. My findings in relation to the evidence of Dr Rees are very concerning for a number of reasons. 3 days of court time has been wasted. Her reports will have influenced the local authority’s approach to this matter and that of the guardian. They have resulted in significant delay for X. This case has now had to be adjourned to July of next year. The ongoing proceedings will have put this family under greater stress and as a result of these proceedings not being resolved and the delay the local authority unsurprisingly intend to issue proceedings for their new born when it is born in the New Year.
47. I have had the possibility raised of X being subject to significant emotional harm now due to his mother’s care, as opposed to it being only a future risk as the local authority had put its case, but cannot determine if that is the case or is an artefact of Dr Rees’s suspect CIA assessment. Notwithstanding that I wish to make it clear that as a result of my findings as to the validity of the CIA’s, I do NOT consider that I have evidence that would make it more probable that at the present time X is at risk of emotional harm such as to affect the interim threshold.
48. The orders sought are of the utmost seriousness and are sought against a background where X has suffered no outwardly discernible harm and the concerns of the local authority and guardian are primarily about the historical performance of mother in her previous partnership with the violent father of her older children or on her own and the risk of future harm. For me to make such orders I must be satisfied that nothing else will do. The evidence from Dr Rees falls well below that threshold.
49. Unfortunately I don’t now have a reliable assessment of mother let alone an answer to the question the Dr Rees and Ms Hall themselves posed as to father and the court is effectively back to square one.
50. I am of the view that Dr Rees’s assessment of father is of no value to these proceedings and may be safely discarded and need not form part of the bundle. Her assessment of mother may remain in the bundle as it may be useful for Dr Bird to see what work has been done with mother. However Dr Bird will have the benefit of my judgment to guide him as to the court’s future approach to it. 
51. Obtaining Dr Bird’s assessment will result in delay for X. However I do not consider that it would be safe for me to proceed on the incomplete assessments that I have or that to do so would be article 8 or 6 compliant. Therefore I must adjourn.
52. Addendum following a Directions Hearing on 24 January 2018
53. Following the abortive final hearing and in view of the contents of my judgment above, the criticisms that I made of the expert evidence and methodology in that judgement and the fact that I intended to post my judgment to BAILII once the parties had considered it and provided me with any corrections that they felt were necessary, I considered that fairness required me to send a copy to Dr Rees and Ms Hall for them to comment. Particularly in view of what I say about the CIA assessment and the further documents from counsel in that judgement.
54. I received a response to my judgment from Dr Rees that ran to some 18 pages.
55. I will summarise that response in this way.
56. Dr Rees apologised to the court and acknowledged that her oral evidence was of “very poor quality” and that in a case such as this there “should be no excuses”.
57. She informed me that she was ill on the day and had been up all night the night before, I understand looking after one of her children who was ill, and as such was finding it difficult to concentrate. I was not aware of that. Had I been I would have afforded her as many opportunities as she needed to take a break and regain her composure. She made it clear that the advocates were not aware of her condition. Dr Rees will be aware of the HCPC guidance on her professional responsibilities in such circumstances. I acknowledge that it is difficult for a professional expert if they are unwell and that she may have not wanted to let the court down. However the net effect of an expert attending when they are unwell as we can see here can be counterproductive to say the least.
58. Dr Rees highlighted the absence of the documents in section G when she was instructed and informs me that she asked for more details but that was not forthcoming and that this hampered her investigations. Dr Rees also informed me that when she was alerted to the fact she had not seen the documents in section G at court she was not given the option of an adjournment which she would have welcomed given how she felt. This ran contrary to what I was told by those at the bar as to the willingness of the experts to proceed on the basis of having just read the documents. Having read what Dr Rees had written on this topic I came to the initial conclusion that there had been some breakdown of communication here.
59. She clarified in some very helpful detail how she actually approached the CIA and the issue of lack of coding though not the issue of videoing the interactions. To some extent I found that reassuring as it confirmed me in my view that properly applied, a CIA could in theory be a useful tool. Dr Rees clarified that the training she did on the CIA itself involved 10-150 coding sessions so the fact that her evidence to me was that she had only completed 15 since that training was misleading as to the extent of her experience, something that she should ensure is clearer in the future. It was clear to me from what she said that there are subtleties to the use of coding in a CIA assessment that did not emerge in her oral evidence. However interestingly she accepted that she should have described her observations in this case as a “mother and child interaction” and she advised me that she would describe it in that way if she undertook such an assessment of that type in the future. Though I accept what she went on to say about the additional clinical evidence she brought to bear from her interview of mother, that of course left me in much the same situation as before in regard to how I treat such observations in the face of the observations of the other professionals as I have set out in my judgment above.
60. With regard to father she accepted that she “did not bring her conclusions together with the clinical evidence to the standard she usually does”. She went on to analyse in some detail her assessment of father. Much more detail than her original evidence provided. Of course that is of little help to the court now that I have been forced to decide that a further assessment is required.
61. Dr Rees accepted that she should not have said she based her opinion on a feeling and that she should have explained her clinical judgment and opinion.  
62. At the end of her responses I was left with a clear understanding that on the day she gave evidence she was having a very bad day and she had learned that she should not have given evidence when she clearly was not up to doing so. Dr Rees also told me that she has learned a number of other lessons about giving evidence that she will incorporate into her practice in the future.
63. I typed an addendum to my judgment dealing with her response and circulated a copy of that addendum and of her response to the representatives of the parties for comment. At the same time I indicated that on the basis of what Dr Rees’s response I was not at that point inclined to publish the judgment on BAILII. I set a date for the formal handing down of the judgment in court.
64. I then received submissions from Ms Reed on behalf of the child instructed by the guardian Ms Carr. Ms Carr took issue with what Dr Rees asserted about the issue of an adjournment on the day of the hearing. Ms Reed submitted that on the day both experts had been more than willing to proceed having read the documents in Section G at court. Indeed the guardian instructed Ms Reed that they had in fact been keen to get on with giving their evidence and had not wanted to avail themselves of the full amount of time I had allowed them to read those documents. In short the guardian’s positon was that there had not in fact been any breakdown of communication on the day. 
65. The guardian went on to submit that it was necessary for me to publish my judgment as it was in the public interest for me to do so and that the contents had an impact on other cases that she and her colleagues were involved with locally. She submitted that she found herself unable to discuss the contents of my judgment with such colleagues unless it was published.
66. The later point was driven home to me in an application I dealt with after receiving Ms Reed’s submissions and prior to the hearing today, where the solicitor for the child, Ms Joseph, acting for child through Ms Carr was asking to discharge Dr Rees from that case. The circumstances of that case meant that it was appropriate to discharge Dr Rees because the mother who was to be assessed by Dr Rees had very unfortunately taken her own life since Dr Rees had been instructed and her assessment was therefore not needed. However Ms Joseph indicated that she knew from Ms Carr that there had been a case involving Dr Rees which lead Ms Carr to wish to apply to discharge Dr Rees in any event but that the guardian had been unable to discuss the contents of my judgement with her. Ms Joseph also indicated that the “rumour mill” had been churning and that that there were “at least 4 versions” of what had happened in this case circulating in the local legal/social care community.
67. Having received Ms Reed’s submissions I formed the view that it was likely to be fairer to Dr Rees that the judgment was published so that people dealing with cases in which she was involved or going to be involved had a clear picture of my findings in this case. Therefore I adjourned my hearing for handing down judgement, directed that Ms Reed’s submissions were sent to Dr Rees, gave Dr Rees an opportunity to respond to those submissions and instruct counsel if she wished and relisted this hearing today to either make further directions or hear submissions, including any submissions from Dr Rees. 
68. Dr Rees has now produced a further response this time to Ms Reed’s submissions. I also have written submissions from the Local Authority on the issue of publication. Ms Pitts for the Local authority today summarised those quite fairly as advising caution about publication given the possible professional ramifications for this expert. The parents in this case take a neutral stance on all issues.
69. Today I have now heard from Ms Reed, very briefly from Ms Pitts and from Dr Rees who attended in person accompanied by her husband for moral support.
70. In her most recent response Dr Rees accepts that she did not seek an adjournment in the morning and what the guardian says about her willingness to proceed having read Section G is correct. She accepts that she “did believe that she had read it all (all the updating documents) at that stage” i.e. on the morning. With the benefit of hindsight now she would have welcomed an adjournment as she gradually formed the view when she was later giving evidence on father that she may not have had all the documents. Therefore so far as the issue of a breakdown of communications is concerned Dr Rees confirms that there was none.  
71. It is undoubtedly the case that the bundle of documents in Section G was not available to anyone in this case until quite late in the proceedings and it is not disputed that section G was omitted from the bundle sent to the experts, hence their need to read it on the day.
72. I can see from the very helpful chronology prepared by those instructing Ms Reed that Dr Rees was instructed in respect to father on the 13 June 2017 and had expressed concern on 22 June 2017 about the lack of background on father. Investigations were made by Mr Gridley, the solicitor for the child, as to whether there were more background documents held by the local authority but none were forthcoming and Dr Rees was advised of that fact on 4 July 2017.
73. Also from that chronology it can be seen that the child’s solicitor updated Dr Rees with documents when they became available; 3 July  Statement of Sue Brickles FSW, 19 July GP report on mother, 16 August Police report, 21 August police disclosure, 22 August PNC’s  and sent an updated index of documents to her on the 23 August 2017. Dr Rees has filed further submissions with the court where she identifies a further e mail dated 15 June 2017 not included in the chronology, requesting background information and instructions re father which presumably crossed with the LOI in respect to father on the 13 June2017.
74. On the 16 November Mr Gridley’s office notified Dr Rees that an updating bundle was to be sent to her and Ms Hall and asked for the details of the address for it to be sent to. Independent Opinion provided details of a PO Box and such a bundle was then sent by post on the 16 November to that PO Box. Unfortunately, and I accept Dr Rees’s submission here, that hard copy of the bundle was never received and had to be sent again electronically as part of the whole court bundle on the 30 November 2017. Therefore there were problems around getting documents to Dr Rees but by the 30 November they had all reached her with the exception of Section G.
75. What Dr Rees recognises in her final submission to me is that she overlooked the fact that the updating documents were in that bundle. She says the email sending the bundle did not highlight the fact that it contained such documents; “I assumed that there weren’t many (or indeed any relevant documents) as I had been told previously by my instructing solicitor that there wasn’t any further information”.
76. I find it difficult to understand why she made that assumption. Firstly because Mr Gridley’s confirmation upon which she relied happened in July and by then we were in November. As an experienced expert she should have been alert to the possibility of updating documents being added to the bundle. Especially so close to the hearing and where she herself had been chasing for any more information that she could have. Secondly there is the fact that Mr Gridley had given notice to Independent Opinion on the 16 November that updating documents were to be sent which should have alerted her to the existence of such documents.
77. In any event it was fatal assumption for Dr Rees to have made. It meant that she did not read the updating documents before the hearing. As she acknowledges that left her disarmed when she gave her oral evidence as she did not have certain documents in the forefront of her mind. Whilst I accept that her ability to investigate the bundle was, as she says, hampered by her being ill and having to look after sick children and I certainly do not seek to criticise her for prioritising the needs of her family, it cannot be said she did not have the documents and she accepts she should have read them. If she was unable to read them for any reason she needed to notify the parties of that fact. She did not do so.
78. Whilst what I have said above deals with Dr Rees’s performance in the box on the day, of more concern to me in many ways is what Dr Rees says to me in her first submission and confirms in paragraph of her most recent submission to me at para.3.5 about her assessments. Dr Rees acknowledges that the quality of her assessment of father was not “of her usual standard” which she attributes to her lack of documents/information during the assessment itself. Whilst acknowledging the difficulty she felt she faced through lack of documents, it cannot be ignored that she proceeded with and concluded that assessment on a matter of such gravity when, as she acknowledges now with hindsight, she was not able to provide her expert assessment to the usual standard. She did not alert the parties or the court to the fact she could not complete the assessment to that standard.
79.  
80. The difficulty the court is confronted with from all of the above is this. The court relies upon professional expert opinion being well informed and based on an analysis of data. Neither I nor indeed the other professionals in this case had any way of knowing at the time we read her report what we now know from Dr Rees’s laudably frank replies, i.e.

                                                              i.     that she had not had documents thatshefelt she needed before she undertook her assessments and that therefore the conclusions may be less reliable than she would have wanted them to be

                                                            ii.     she had not updated herself on the updating documents before she gave evidence

                                                           iii.     she was feeling below par when giving her evidence and was struggling to “maintain her focus and capacity to think”.

81. As a result had it not been for Mr Jenkins cross examination the court could have made a very serious decision on below standard expert opinion and evidence.
82. It is of course an expert’s duty to inform the court of those factors if they are present.
83. I know that Dr Rees thought that she was trying to help the court and in so doing avoid delay for X. She has 9 years of experience as a court appointed expert and tells me that she has always had positive feedback. I do not doubt that that is the case. I accept that she was unwell on the day and no doubt felt better in the morning and was more confident of her mental powers early in the day than she did later when dealing with her evidence on father after she had given evidence of several hours and was tired. I am sure that notwithstanding that she proceeded on the day in the belief that it would avoid delay and help the court. However I suspect she now realises she clearly proceeded with her assessment and with her oral evidence before me when she should not have done so.
84. Dr Rees acknowledges her responsibility for what has gone wrong in this case which is enormously to her credit and speaks of her professionalism. Dr Rees informs me that this has been a learning experience for her. I recognise that giving expert opinion in this type of proceedings is very difficult and I do not underestimate that. I hope that Dr Rees will have learned from her experience so as to enable her to better serve the court in her role as an expert in the future.
85. To assist I will set out below some of the lessons that I feel she should have learned from that experience namely;
1. Not to proceed with her instructions if she is not confident she has all the documents/information she needs before she starts her workorif she is confident she is able to get on with the assessment work without them so as to avoid delay, identify to those instructing her what documents/information she will still need and ensure that she is confident that they will arrive before the deadline set for when she has to complete her assessment.
2. To ensure that if she is supplied with documents she reads them before the hearing to make sure that updating documents have not been overlooked.
3. If there are deficiencies in the extent of her instructions that are apparent to her at any point in time to take the initiative to go back to the instructing solicitor when those deficiencies become apparent and alert him/her so that the instructions can be revised if necessary.
4. If there are deficiencies in her assessment for want of information or any other reason to take the initiative and include that fact in her report to alert the parties and the court of those.
5. She needs to take care to base her conclusions on proven facts and not supposition or allegations and if she feels it necessary to provide an expert opinion on the basis of unproven facts to prepare her opinion in the alternative i.e. if the given fact is proven or if it is not so that the court can determine the facts and apply the correct conclusion.
6. If she is unwell she needs to notify the instructing solicitor and the court both about the fact that she is unwell and the impact she thinks it will have on her giving evidence and any special arrangements she will need.  Ploughing on bravely is not helpful to the court if it results in problems such as have happened in this case.  
7. To ensure that she includes in her report an appropriate brief explanation of her methodology so that the means by which she has reached her conclusions are transparent to those reading her reports.
8. If she deploys an appropriate but perhaps novel psychometric measure to obtain data to include a brief explanation of the measure and her qualification to deploy the same so as to ensure that the parties have confidence in her qualification to deploy that measure where there could be doubt.     
86. I suspect that Dr Rees may feel that taking the findings of this court in this judgment and the outcomes in this case into some clinical supervision may be of assistance for her practice and I would suggest that she reviews her audit and quality evaluation procedures to ensure their future effectiveness.
87. At the end of this hearing Dr Rees asked that I should prepare my judgment as soon as possible and confirmed that she was not opposed to publication on BAILII now as she recognised that as much damage was being done to her reputation from the contents of this judgment not being in the public domain and subject to speculation than any criticism that there may be contained within it. I agree and therefore will proceed to publish this judgment immediately after it has been formally handed down.