Part 25 applications: A cautionary tale for practitioners
This was a private law case in front of magistrates where the mother was represented by counsel and the father, a Serbian whose first language was not English, was in person. The mother had concerns that the father had a personality disorder. At the hearing her counsel made an oral application for the father to undergo a psychological assessment: no Part 25 application had been issued and there was no information before the court about any proposed expert, CVs, timescales or costings let alone a draft letter of instruction with questions. The father’s only notice of the application was in an informal discussion with the mother’s counsel at court before the hearing. Despite the father’s protestion that he did not have a psychological problem, the magistrates said that it was for him to say why the assessment was not necessary and duly granted the mother’s application making an order that, “The Father shall submit to a full psychological assessment”.
So far so bad? Well the total disregard for the mandatory provisions of Section 13 of the Children and Families Act 2014 and Part 25 FPR 2010 managed to get past HHJ Scarratt on appeal before ending up in the Court of Appeal. Ryder LJ (giving the lead judgment) was less forgiving, however, of the magistrates’ shortcomings.
The Court of Appeal in allowing the father’s appeal reiterated the mandatory nature of compliance with both the statutory scheme and the procedural code, which was totally absent in this case. The magistrates had wrongly reversed the burden by obliging the father to justify why the expert evidence was not necessary. They had wrongly sought to compel the father to undergo an assessment that he was not willing to do; as Ryder LJ reminds us at paragraph 35, “It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure”. The correct wording for a Part 25 direction is that the parties “have permission to instruct” an expert. If (as in this case) a party is unwilling to undergo an assessment, the judge should both warn the party in court and record as a recital in the court order that negative inferences may be drawn if the party fails to co-operate or comply.
Ryder LJ also gave a welcome digression on the fair process for a litigant in person whose first language is not English, particularly if the other party is represented. With reference to the training provided to all judges (including magistrates) by the Judicial College, Ryder LJ set out the following (paragraphs 14 to 16):
“14……The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
15. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
16. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.”