EWCA Civ 365
Expert should only see documentation relevant to issues
The local Authority were seeking a Care Order relating to the fifth child of a couple. The first four children were already the subject of Care Orders.
Accordingly, there was a great deal of material which justified the concerns of the Local Authority and founded its application for a Care Order.
As part of that history there were reports and records relating to possible sexual misconduct by the father containing two cautions; two prosecutions resulting in two acquittals; and various other complaints and assertions which had never been the subject of any criminal or family proceedings.
The application for a Care Order itself was not founded on any allegation of sexual misconduct by the father or any suggestion that he represented a sexual risk to the child.
Should the papers relating to the past reports of sexual misconduct go to the expert (an independent social worker) who was to be instructed jointly by the parties?
The documents within the Local Authority file included social services records recording the allegations of sexual misconduct and documents expressing opinions as to the validity of those allegations; Police reports and documentation relied upon by the Prosecution in support of the charges for which the father was acquitted.
In answering the question, "what of the documentation ought to be sent to the expert?" the following points were decided:
1. The principles set out in Re: R (Care Disclosure: Nature of Proceedings)  1 FLR 755 and particularly the passage citing Re: M and R (Child Abuse: Evidence)  2 FLR 195 are to be extended to apply to the preparation of material conveyed to experts. The principles set out therein are as follows:
a. If the Local Authority decide not to pursue the allegations of sexual abuse and the threshold criteria for a Care Order are met on other grounds, then at the welfare or disposal stage, the Court cannot assess risk on the basis that:
i. There was sexual abuse; or
ii. There was a suspicion that there was sexual abuse.
B. The situation is analogous with a case where such allegations had been made but the Court had been unable to make findings that there had been such abuse;
c. Unless and until the Local Authority embark on proceedings to prove such allegations (and they are proved/admitted) it is not open to the Local Authority to:
i. Advance care plans;
ii. Deal with the family on the basis that they believe the allegations to be true.
2. With that in mind, whilst nothing relevant to the issues should be excluded from the documentation, unnecessary material must be rigorously excluded so as not to unnecessarily inflate the costs incurred by the Expert by burdening him or her with papers that are not significant to the task;
3. Local Authorities should not introduce documentation which may be perceived (perhaps reasonably) as being unfair to the parent in the sense that it is purely prejudicial. The capacity to improve cooperation between parents and Local Authorities should not be unnecessarily prejudiced by presentation of documentation that is regarded by the parents as “below the belt”.
Accordingly, evidence relating to the cautions (which rested on confessions) and relating to the two prosecutions (which were matters of Public record) were relevant. The allegations were irrelevant (although Hughes L.J. Stated that it may be possible for the fact of allegations to be relevant in some cases - irrespective of the truth of them - albeit the details thereof or opinions about them could not be). The opinions expressed about those allegations were agreed to be irrelevant.
This case concerns a Public law family case where emotions may be running high and unproven allegations can inevitably make matters worse. Whilst allegations (true or not) could be relevant to the issues, if they are not relied upon and/or proved, they will play no part in the future conduct of the case if an Order is made. Therefore, the parties should at least question the relevance of the fact allegations have been made. What is clear is that the contents of those allegations and any opinions that have been expressed about them are irrelevant.
The principle that an Expert should not be burdened with irrelevant documentation is of general application. Consideration of what the instructing party/parties is/are trying to prove and therefore what documentation is relevant to those issues is always essential to avoid unnecessary cost or problems with the recovery of costs at the conclusion of the case.