Part 25 Applications and the test of necessity

Amjad Kadhim explores the issue of applications for expert evidence under Part 25 Family Procedure Rules 2010 in light of a recent Family Division case decided.. 

The case of West Northamptonshire Council v The Mother v Y [2024] EWHC 395 revolved around an application being made, during the course of care proceedings, for the instruction of a psychologist to carry out a cognitive assessment of the Mother in this case. The case was referred by HHJ Carter, the Acting Designated Family Judge for Northampton, to Lieven J who is the Presiding Family Judge for the Midlands. 

The judgment is intended to provide guidance to practitioners in relation to making applications for expert evidence with the key message being underlined that applications should not be granted if the legal test of necessity is not satisfied.

The facts

• The child, Y, was born in late December 2023. Y had remained in hospital care for three weeks after his birth due to being born prematurely.
• The Local Authority applied for an Interim Care Order on 17 January 2024 in relation to Y. The Local Authority asserted the threshold criteria was met on the basis that the Mother failed to engage with antenatal services, including mental health services, and that there was a risk of harm from her association with the Father, who had a history of offences.
• The Local Authority’s original care plan was for Y to be removed from the Mother’s care however, on the day of the removal hearing, the Local Authority reflected on their plan and sought for the Mother and Y to be placed together in a mother and baby foster placement.
• On 22^nd January 2024, the Mother’s solicitors made an application under Part 25 of the Family Procedure Rules 2010 for a psychologist to undertake a cognitive assessment of the Mother. The application was opposed by the Local Authority while the Guardian was neutral.
• It should be noted that the Court had considered the Social Work Evidence Template (SWET) and interim threshold and concluded there was nothing in those documents to suggest the Mother suffers from cognitive impairment or significant communication difficulties. There was no reference to her having a Special Educational Needs Statement or having attended anything other than a mainstream school.
• Very shortly before the hearing commenced, the Court was informed by the Mother’s solicitor that he would be inviting the Court for permission to withdraw the application however, this was refused by Lieven J who decided that the application should be considered and a reasoned decision should be given.

Decision

In order to understand the rationale of the judgment, it is worth providing some context should be given as to why the solicitor for the Mother had applied to withdraw the application. This is summarised in Paragraph 13:

“Mr Leach on behalf of the Mother said that the application had been made on 22 January 2024 as a “belt and braces” approach at a point when he (the solicitor for the Mother) had not met the Mother, but counsel at the earlier hearing had. There may have been some discussion at that stage of the LA using the ParentAssess framework when assessing the Mother. Mr Leach said that once he had spoken to the Mother, the evening before the hearing before me, in the light of her excellent progress at the foster placement and his own conversation with her, he had decided to withdraw the application.”

Lieven J had refused the application on the basis that the test of necessity was not met. When considering the application made by the solicitors for the Mother, Lieven J had determined that there was minimal evidence submitted in support of the application indicating why the Mother’s solicitor believed such an assessment was required. Lieven J determined that there was no evidence or submissions that supported the test of necessity being met and therefore, refused the application.

The judgment was critical of the application being made and that a “belt and braces” approach indicates that the legal test was likely not being considered when the application was made. The judgment highlights that such misconceived applications are exceedingly common however, waste considerable resources for the family court, the local authorities and Cafcass. [see paragraphs 23 to 24]

The role of Guardians and children’s solicitors

Lieven J had also expressed the opinion that it was unfortunate that the Guardian remained neutral on the application for a cognitive assessment. The solicitor for the child had submitted in the skeleton argument on behalf of the Guardian that the Guardian had met the Mother for nearly an hour in which the Guardian was content that the Mother understood their discussions and that the Guardian anticipated that people working with the Mother may need to spend more time with her and to use simple language. 

Lieven J took the view that skeleton argument on behalf of the Guardian made it clear that the Guardian did not consider the test of necessity to have been met yet still remained neutral. Lieven J emphasised that if it is clear to the Guardian and the Child’s solicitor that an application should be refused, then they should make that clear to the Court. The judgment highlights that Guardians and children’s solicitors play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources. Furthermore, the judgment refers to the Guidance from the President of the Family Division to “make cases smaller” as part of “The Road Ahead”.

The Advocates Gateway toolkits

The judgment also carries significant interest in so far as Lieven J had underlined the need for advocates to already be working with parents in care proceedings to be sensitive to the parents’ needs and to be familiar with the techniques and principles as set out in the Advocates Gateway toolkits. 

The toolkits were designed to assist practitioners working with parents in how they should adjust their use of language and questioning with parents. This includes when parents give oral evidence. Lieven J had set out the following below:

[21] In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs. I referred to the Advocates Gateway and the need for all those working in this part of the justice system to be familiar with it and apply its principles in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 at [46]. It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.

[22] “It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.”

The test of necessity

As part of consideration of the application for a cognitive assessment, Lieven J had observed that a parent being vulnerable was not a sufficient justification for a cognitive assessment to be ordered by the Court. It can be said that the guidance in this judgment makes it clear the Family Court will require more specific submissions as to why the legal test is met. It is certainly worth setting out Lieven J’s observations in full:

[9.] “The statement in support stated at paragraph 11:

“The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information.””

[10] “It hardly needs stating that these three matters are exceedingly common in care proceedings, and do not begin without further detail, to justify a psychological assessment. An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent’s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be “nice to have””.

Key takeaway points

It is clear that the purpose of this judgment was to set out a clear message that the Family Court will be very robust with applications for expert evidence. It is certainly no surprise given the recent guidance from the President of the Family Division since “The Road Ahead” and subsequent guidance for Judges to ensure that the effective use of the court’s resources is being maximised and to make “every hearing count”. The reality is that expert evidence comes with a cost of money, resources and delay in proceedings at a time when the Family Court is working through a high number of cases.

In light of the above, practitioners should expect the Court to take a more forensic approach to the legal test of necessity for such applications and should expect robust challenge from a judge when they consider an application. Having this in mind, the following points should be borne in mind going forward:

1. Always ensure any application engages with the legal test and specifically sets out why the expert evidence sought is necessary to resolve the proceedings justly.

2. Practitioners will need to be familiar with the techniques and principles as set out in the Advocates Gateway Toolkits. A link to the toolkits is provided: (Toolkits | Advocate’s Gateway (theadvocatesgateway.org))

3. The Family Court has an expectation that if a practitioner is working with a vulnerable parent, they should be making adjustments to use simplified language/avoiding legal jargon when dealing with parents as well as taking time to explain the issues of the case appropriately and to check the parents’ understanding. 

4. In the event that a practitioner uses the above approach and still takes the view that there remains a concern as to a parent’s cognitive functioning and their ability to understand and participate in the proceedings then consideration should be given to an application for a cognitive assessment. It bares emphasis that the application must address why the legal test of necessity is satisfied for the instruction of an expert to carry out a cognitive assessment of the parent.

5. While not specifically addressed in the judgment, practitioners are reminded that the applications must be compliant with the requirements under Part 25 Family Procedure Rules 2010 as well as Practice Direction 25C (for children proceedings)/Practice Direction 25D (financial remedy and other family proceedings). Furthermore, the application for expert evidence should always engage the checklist factors for such applications. Those factors can be found in the following legal framework set out below:
   • For Children Proceedings (other than assessments under s.38(6) Children Act 1989) – the factors are listed in s.13(7) Children and Families Act 2014
   • For medical, psychiatric or other assessment of a child when the court makes an interim care order or interim supervision order – see s.38(6) and s.38(7B) of the Children Act 1989
   • All other forms of family proceedings – the factors are listed in r25.5(2) Family Procedure Rules 2010

Amjad Kadhim is a Consultant Barrister at Unit Chambers.