Jersey Unreported Judgments

Care order - application by the Minister for directions in relation to an experts meeting.

[2011]JRC244

Royal Court

(Samedi)

28 December 2011

Before     :

W. J. Bailhache, Esq., Deputy Bailiff sitting alone.

 

IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002

AND IN THE MATTER OF EEE

Advocate C. Davies for the Minister for Health and Social Services.

Advocate C. Hall for the Mother.

Advocate J. Gollop for the Father.

judgment

the deputy bailiff:

1.        The Minister applies for the following directions:-

"The Advocate for the Minister shall convene and chair an experts meeting (by telephone conference if necessary) between Bryn Williams, John Castleton, Michael Gafoor, the guardian and the parties lawyers, to clarify any recommendations of the experts, such meeting to take place on 5th July 2011.  The parties shall agree and agenda and questions in advance of the meeting.

Leave be given to disclose Bryn Williams' report dated 26th April 2011 and John Castleton's report dated 14th June 2011 to Michael Gafoor in preparation of the experts meeting."

2.        Two days have been set aside in September for the hearing of the Minister's application for a full care order in relation to EEE, who has already been the subject of two interim supervision orders and on one occasion a Police Protection Order.  The Minister contends that EEE has suffered and will continue to suffer emotional harm were she to return to her mother's care.  It is said that she has witnessed her mother having violent arguments and drinking excessively.  It is said she has been left with inappropriate carers and at times in neglectful home circumstances; and that the mother has broken her assurances given in the past that she would refrain from drinking alcohol and would care for EEE in an appropriate manner, putting EEE's needs first.  The Minister asserts that the mother has had a significant problem in her consumption of alcohol, and expert reports have been procured from Mr Michael Gafoor, of the Alcohol and Drugs Service in Jersey, from Dr Bryn Williams, a chartered clinical psychologist with a specialist interest in children, young people and families, and from Mr John Castleton, a chartered psychologist who has specialised in working with substance mis-users and their families. 

3.        The hearing took place because initially I declined to endorse an experts meeting.  At the end of the directions hearing, I said that I would order an experts meeting as requested for reasons of administrative convenience but that I had some reservations as to the matter, and that I intended to issue a judgment for guidance to the profession.  I have taken this course because a practice seems to have grown up, reflected in a number of cases coming before the Court, of routinely ordering experts meetings to take place without any apparently detailed consideration as to why they should be necessary; and, certainly insofar as some of the notes of the experts meetings which I have read in other cases are concerned, the discussion before the experts has occasionally been marked by a lack of focus and indeed a lack of rigour as a consequence on the part of the experts and of the lawyers.  That statement does not of course refer to those involved in this case. 

4.        Counsel for the Minister said that all parties wanted an experts meeting.  When pressed as to what questions would be asked of the experts, she indicated that the treatment regime for the mother, the timeframes for that treatment and whether that would impact on an ability to care for EEE needed to be put to the experts together.  She said there were "issues of risk in terms of managing the mother's alcohol needs, moving forward".  This rather general statement did not take us very far.  More particularly, she said that Mr Gafoor had not seen the results of a hair strand test analysis conducted for Mr Castleton, which it was suggested might give a level of alcohol intake between late December 2010 and late March 2011 which was inconsistent with the findings of Mr Gafoor and it was necessary to ascertain whether Mr Gafoor accepted the validity of this test.  It was she said important that the experts consider the recommendations which Mr Castleton made in respect of treatment or therapy for the mother which would engage her for approximately two years and the experts needed to be consulted, it was submitted, on whether it was realistic that the mother could cope with care of EEE while going through that therapy and indeed whether that sort of arrangement would be in EEE's best interests over that period.  There was an issue as to whether all the Castleton recommendations could in fact be delivered in Jersey. 

5.        When I asked Advocate Hall, for the mother, why she wanted the experts meeting, she said that she agreed that the issues which counsel for the Minister had raised were the fundamental issues.  She said that her client felt that she had done everything asked of her, and she had many questions on Mr Castleton's report in particular, but these had not yet been formulated.  If she did not have the ability to test the expert in a meeting, the probability was that the mother would contest the hearing in September.  She did not think it was appropriate to ask the experts further questions in writing, which she thought might even take longer than having a meeting. 

6.        Advocate Gollop for the father took a relatively neutral position.  He said it was highly unlikely that his client would have any questions for any of the experts and in relation to the Minister's submissions, he said that the question in relation to the hair sample could go to Mr Gafoor by letter, and the Minister ought to know what therapy was available in the Island and an experts meeting was not necessary for that purpose. 

7.        The guardian was excused the obligation to attend this hearing at his request, but helpfully gave his views to the Court by letter in which he said that while experts' meetings could be helpful, he was not sure one was necessary in this case. 

8.        There are two background principles which are relevant to all these cases.  The first is the overriding principle that the Court should make such orders as are in the best interests of the child.  The statute confers this responsibility on the Court.  The evidence of the experts is often an important part of the process by which the Court's decision is taken, but it cannot absolve the Court of the responsibility for forming its own view as to where the best interests of the child might lie.  It may well be desirable for the evidence of the experts to be tested in Court rather than tested in meetings with lawyers out of the court.  This is one of the ways in which the Court can satisfy itself that it is meeting its responsibilities under the statute. 

9.        The second principle, which is sometimes in competition with the first, is the need to avoid confrontational litigation in family cases where that is possible.  In many cases, and indeed hopefully in most cases, there will be a continuing relationship between the parent and the child and that can only be improved if the parent is satisfied that the right conclusions have been reached in the best interests of the child along the litigation highway.  An opportunity to question experts and seek clarification of the experts' views may well provide a less stressful and ultimately therefore more productive method of handling what are likely to be reservations of a parent in relation to the sometimes critical expert evidence which has been provided to him or to her. 

10.      The question of experts' meetings was considered by Wall J in Re CB and JB (Care Proceedings: Guidelines) 1998 2 FLR 211.  Although the UK regime is slightly different from our own, there are sufficient similarities that this judgment is of considerable help.  Wall J asked himself three questions:-

(i)        Is it necessary in every case for the experts to meet?  If so, does it have to be face to face? 

(ii)       If a face to face meeting is required, should experts from different disciplines attend such a meeting? 

(iii)      How should experts' meetings be conducted? 

11.      The nature of an expert witness is that he gives his professional opinion to the Court on the matters which fall within the range of his expertise.  His primary duty is to the Court.  There is nothing objectionable in experts communicating with each other on the content of their opinions.  The Court expects the opinions of experts to be sufficiently robust that they are formed having regard to all relevant material and can be explained in the context of all such material.  To the extent that experts might sometimes forget that their overall duty is to the Court, the practice in children's cases which leads to experts generally being jointly instructed by the parties, emphasises the independence which the experts must have of any of the narrower positions which the parties might adopt to suit the exigencies of their own case. 

12.      I agree with the comments of Wall J, as he then was, that a critical requirement is that any of the communications between experts should be recorded.  As he says at page 14 of his judgment:-   

"The mischief which [the Children Act Advisory Committee's draft letter] is designed to prevent is an informal discussion between experts which is either influential in or determinative of their views and to which the parties to the proceedings (including perhaps other experts) do not have access."

13.      Later on he says:-

"It is absurd in my view ... if experts are to feel constrained by their instructions from entering into discussions, informal or otherwise, which may assist in forming their opinion of the case.  But if experts do have informal discussions about a case, perhaps because they share the same premises, or meet at a conference, or simply because they wish to inform each other's opinions, it is of course essential that they make a record of all such discussions (however brief) and, in their reports or otherwise, inform those instructing them that such discussions have taken place.  It is equally important that they should state how (if at all) that those discussions have influenced their thinking about the case."

Is it necessary for experts to meet?

14.      The form of direction which I have been asked to give here however goes beyond a chance or organised meeting which experts might have with each other.  The Court is asked to sanction the meeting and it follows that the Court itself must be satisfied as to why it is doing so.  Meetings are resource intensive for the parties, their lawyers and the experts, and the Court must ensure that its business in the administration of justice is carried on efficiently.  In my judgment, the question is rightly put as to whether it is necessary for experts to meet.  As Wall J said at page 16 of his judgment:-

"... the obvious needs to be stated.  Simply because there are experts in the case does not mean that a pre hearing face to face meeting of experts is necessary.  A meeting of experts is only necessary if there is something for the experts to discuss.  If on paper the experts are all agreed, and if there is nothing in their reports which requires elucidation or amplification, there is no need, in my judgment, for an experts' meeting.

A meeting of experts is usually required, either because it is necessary to attempt to define or limit areas of disagreement, or because there are points in the case which require elucidation."

15.      When one applies this test, which in principle seems to me to be the right test, to the issues which counsel want to raise with the experts here, it is far from clear that an experts' meeting is appropriate.  Mr Gafoor has not had the hair strand test results.  It would be perfectly appropriate to put to him two questions:-

(i)        Does he accept the validity of hair strand tests of this kind in demonstrating alcohol intake, and if so with what, if any, qualifications? 

(ii)       If he does accept the validity of the test, do the results of the test in this particular case cause him to review any of the opinions which he has expressed in his earlier formal statement?  

16.      On the face of it, it does not need Mr Castleton either in person or at the other end of the telephone, Dr Bryn Williams, the guardian and three Jersey lawyers to be present to enable him to answer those questions; and if the answers do in fact suggest that further supplementary questions might lead to clarification either on his part or on the part of Mr Castleton as to their respective positions, the probability is that such questions are better put before the Court rather than at the experts' meeting, because it is desirable that any contentious issues of fact be explored in Court and not elsewhere, as it is in Court that they are likely to have to be resolved. 

17.      The other question which counsel for the Minister suggested should be put to the experts is whether it is realistic in their view that the mother could cope with the therapy which was proposed and at the same time care for EEE.  This is likely to be an important question, the answer to which will undoubtedly inform the decision of the Court in due course.  Once again, it is a question which could quite easily be put in writing.  Once again, it is a question to which the answers might prompt further questions. Once again, there is the risk that the enquiry would be better conducted before the Court which has the responsibility of making the decision rather than taking place elsewhere. 

18.      18.    I add that where the form of directions sought is that an experts' meeting should take place with the parties to agree an agenda and questions in advance of the meeting, it is fairly clear that the parties have not actually identified with any degree of focus as yet the questions which they wish to ask.  Indeed that was conceded by counsel for the mother who said that she knew her client would have a number of questions but she had not formulated them at that stage. 

19.      19.    I do not think this is good enough.  If the Court is to be asked to order an experts' meeting and the essential question is whether it is necessary for the experts to meet, it follows that those propounding the need for the meeting should be able to set out precisely what questions are going to be put to the experts, and what areas of the reports require elucidation or clarification.  I add that the reports in this case are extremely detailed.  Dr Bryn Williams' report runs to 90 pages.  Mr Castleton's report, with the appendices, runs to 104 pages.  One would like to think that if there are areas which are unclear in such lengthy reports, clarification can be achieved with some precise questions requiring precise answers. 

Different disciplines?

20.      I turn to the next question which is whether there should be meetings between experts of different disciplines.  Once again the dictum of Wall J is extremely helpful although it was naturally aimed at the facts of that particular case.  He said this:-

"In many cases the essential issue is a factual one.  In such cases, the expert evidence relevant to its elucidation is usually medical, and goes to causation and timing.  In my judgment it is rarely helpful for an experts' meeting called to discuss issues of causation and timing to be attended by psychologists and psychiatrists.  Considerable thought therefore needs to be given to the subject matter to be addressed by the particular experts' meeting, and the relevance of the disciplines of those invited to attend. 

A global meeting of experts from different disciplines may sometimes be appropriate if all the issues in a case are up for discussion and resolution:  such a situation is, however, in my experience, unusual.

Not only must great care be taken to ensure that experts' meetings are properly constituted to meet their particular objective; care must also be taken to ensure that if separate meetings of different disciplines to take place in the context of a given case, those meetings are complementary to each other and have the same objective, namely the resolution of the relevant issues in the case." 

21.      I add to those comments that the resolution of the relevant issues means the resolution of the lack of clarity and/or the amplification of the experts' opinion.  It will often be the case that the views of an expert of a different discipline will have no impact upon the views of the expert who is being asked for clarification of his own opinion and indeed one has to be careful to ensure that experts are not taken out of their field of expertise, which is all the more likely if there is a lack of focus as to the questions which they are asked to consider. 

The conduct of the meeting

22.      The third question which Wall J considered was that of the conduct of the meeting.  He concluded that experts' meetings are most productive when chaired by a lawyer, and the obvious choice for that role was the solicitor instructed by the guardian.  Our procedures are, of course, not the same in this respect as those which apply in the United Kingdom.  On many occasions in our proceedings, there will not be a lawyer as well as a guardian.  I anticipate in those circumstances, that in practice it will probably be most convenient for the lawyer for the Minister to chair the meeting, but only following careful liaison with the lawyers for the parents and any other parties, and after careful liaison with the guardian to ensure that the right questions are asked.  In some cases, it may be more acceptable to all parties if the guardian chairs the meeting.  If necessary, the Court will appoint the chairman.  As was said by Wall J at page 18 of his judgment:-

"In Re M (Minors) (Care Proceedings: Childs' Wishes) 994 1 FLR 749 I stressed the need for careful co-operative planning between the parties legal advisors to ensure the experts availability to give evidence at the hearing.  In my judgment there is an equal need for co-operation in the preparation required for, and in the conduct of, experts meetings.  The parents' lawyers must, of course, have all their questions asked and answered, but this does not mean that any party should seek to obfuscate the issues by unnecessary or irrelevant questions.  The questions posed to the experts must be carefully formulated to address the issues in the case.  Questions should always aim to clarify, not obfuscate.  The simpler the questions the better."   

23.      In summary, the practice which ought to be adopted is that where parties consider that it will be useful to have an experts' meeting, the application to the Court for directions in this respect should identify clearly what aspects of the experts report require clarification or elucidation and what are the particular questions which it is contended ought to be put to the experts for consideration.  The application should identify the identity of the proposed chairman, whether it is necessary for all the experts in the case to be present, whether of the same discipline or not, and should identify why it would be more appropriate to have the questions put in the form of a meeting, whether by telephone conference or in person, as opposed to a written question for a further written response.  By this means, greater discipline will be introduced into the procedures adopted, and there is likely, one hopes, to be a greater reconciliation of the two overriding principles which I referred to at the beginning of this judgment. 

24.      In the event in this case, I made the directions requested by the Minister, on the grounds of administrative convenience.  This is because a provisional date for an experts' meeting has been set for 5th July, and because we have trial dates for a final hearing fixed for 14th and 15th September.  To bifurcate the process to have written questions first with the possibility of oral questions thereafter would be inconvenient, especially with the vacation period coming up, and the possibility that lawyers or experts may be away on leave.  However, for the reasons I have given, I have had some reservations about whether it has really been established that it is necessary for an experts' meeting to take place, attended as it will be by those of slightly different disciplines.  The Court will of course be able to form a view at a later stage as to the merits of the experts' meeting when it has the benefit of the recording of that meeting which presumably will be presented at the hearing in September. 

Authorities

Re CB and JB (Care Proceedings: Guidelines) 1998 2 FLR 211.