Ian WalkerExpert Assessment in Child Law cases

At the end of the case the Judge will make a decision based on their interpretation of the child’s best interests.

Often it will be necessary for the Judge to allow expert evidence.

There are essentially two phases within the case. The second of these phases is consideration of the child’s welfare.

Assessments concerning a child’s welfare and best outcomes

Within this phase the court will also be considering the abilities of the parents and other family members to care for the child.

Something bad will have happened, or thought to have happened, otherwise the case wouldn’t be in court.

The types of assessment that are ordered in this phase of the case include assessments by psychiatrists or psychologists and sometimes independent social workers. There could be others depending upon the particular facts in a case.

These can be assessments of the child to understand their needs including their long-term needs and their relationships with family members.

The assessments could also be of parents and family members to understand their abilities to meet the needs of the child.

Sometimes an expert – normally a psychologist – will assess the children and relevant adults at the same time in order to produce a report which is an assessment of the whole family.

These reports are very important to the outcome of the case.

Before the judge makes the final decision they will also take into account all of the evidence in the case including the parents and other family members who are involved in the proceedings, the social workers and Cafcass (The Children’s Guardian – the Independent Social Worker who advises the Court concerning the child’s needs) and sometimes with older children – the child will also give evidence (there are different child sensitive ways in which this can be done).

When the judge makes their decision they will weigh up all of the evidence. They do not have to follow the recommendations of Cafcass or the expert. It may be that there will be more than one expert and that there will be different opinions as to what the outcome should be.

The judge needs to justify their decision. If they are rejecting the views of in particular the Children’s Guardian or expert – they will need to explain why.

Sometimes it is possible to appeal against a decision. This is not easy to do – the first step would be persuading the legal aid agency that funding should be extended to make an appeal – the legal aid agency will want to know that there were good prospects of an appeal succeeding. Most decisions are not appealed against.

Hearings to make Findings of Fact

The other phase of the case – the first phase – is understanding what has happened to the child.

In most cases sufficient facts will be agreed so that there will not need to be a separate hearing to decide the truth of what has happened. Normally what is called a threshold document will be agreed. This sets out enough agreed facts so that the judge and the experts are sufficiently clear that it is agreed about what has happened so that the expert can carry out their assessment and make recommendations and so that the judge can be satisfied that there should be court proceedings – and then for the judge to be able to move on to make decisions based on the child’s welfare.

So in most cases there will not need to be a hearing to decide the truth of what has happened.  some factual matters may be left to be decided at the final hearing – if they are important – but not overly significant in the overall scheme of things.

However in some cases a court hearing will be necessary to decide what has happened.

For example, a child may have suffered a physical injury and it is alleged that this injury has been caused on purpose. Or, there may be evidence that a child has been sexually abused. In both cases there may be disagreement about what happened, what injuries there are and who caused them and when.

Before the court can decide what is in the child’s best interests, and before experts can give advice about a child’s needs – there will need to be a court hearing to decide what has happened.

Sometimes there will need to be different experts. If there is an alleged nonaccidental injury there may be several doctors asked to give evidence. This can include the doctors who have treated the child as well as independent expert doctors – who were asked to give a fresh view.

The court will be concerned to have good evidence so that the judge can decide what happened and who did what.

Important facts need to be decided before the case can move on to deciding what is in the child’s best interests. However in most cases they do not need to be these types of hearing.

When an expert is instructed

The court will normally wish the number of different experts to be kept to a minimum. It is therefore normal for there to be a single expert from a particular discipline with a particular type of expertise. Normally this expert will be agreed by the lawyers but if there is disagreement the judge will decide – normally based upon availability and relevant expertise.

The court will normally prefer an expert with a good level of expertise who can prepare a report reasonably quickly to an expert with similar expertise who will take much longer. This is because it is in the child’s best interests for delayed to be avoided.

Cross-examination of experts

If a party in the case – including a parent – does not accept the evidence of the expert – then the expert can be cross examined in court.

Advice

these are often complicated matters and there will be different choices available to a parent or carer or family member as to how they wish to approach the case in order to maximise their prospects of achieving a good outcome.

Fortunately, we are experts in this type of law. We give our clients good advice which enables them to make good choices. Unfortunately not everyone follows our advice. Going through a court case can be very emotional and sometimes parents have difficulty owning up when they have done something bad or there is something else which gets in the way of good decision-making. We have a very strong team and years and years of experience of successfully representing clients through difficult cases. When we give advice it is always with a view to assisting clients to achieve the best outcome possible.

If you need assistance, then do please give us a call.