Psychological reports and the Family Court

Stephen Wildblood QC

A Story

• A Local Authority v M

• [2014] EWFC B158

The point

• This case is another example of how important it is that, if therapy isneeded, it is obtained at an early stage. Time and time again I see aprocess whereby the following occurs: a) a Local Authority intervenesand begins making assessment of a family; b) months later proceedingsare issued; c) an order is made for some form of expert evidence to beproduced (often a psychological report); d) months later thepsychological report is obtained which says, invariably and utterlyforeseeably, that someone within the family needs therapy and e) it isstated that, by then, the beneficial effect of therapy would be 'outwith thetimescales for the child'.

So what?

• In this case it would have been perfectly obvious to all that, when themother was referred before birth, she was a prime candidate for therapy.If therapy were to be obtained at an early stage such as that there is atleast a prospect that outcomes in some cases might be different. I havetherefore already set up arrangements in the New Year to look verycarefully at how we facilitate and access therapy in this area, with a viewto doing my utmost to encourage much earlier therapeutic intervention ifpossible. I ask for as much help as possible with that endeavour.

Self -prophecy

• Case decided in 26 weeks.

• Psychological report ordered and comes into being at 20 weeks of procedure.

• How long does therapy take to have an effect?

Cost

• Issue care application - £2,055

• Psychological report and evidence obtained in proceedings - £5,000?

• How much are Local Authorities spending on such reports?

• Average gross pay of a social worker - £33k p.a.

Why do we leave it so late?

• Culture?

• A belief that therapy does not work anyway?

• Lack of resources?

• Poor system?

The duty of the expert

• Duty to the court – Rule 25.3(2) – ‘this duty overrides any obligation to the person from whom the experts have received instructions.’

• Whose welfare is paramount? The child’s of course.

But….

Judge András Sajó said this in Soares de Melo v Portugal (Requête no72850/14) while sitting as the President of the European Court of HumanRights: 'Cependant, il est important de souligner que l'intérêt supérieur de l'enfant n'estpas, en principe, opposé au droit fondamental des parents à vivre une vie familiale avecleurs enfants. La règle de l'intérêt supérieur de l'enfant ne peut être interprétée commeune règle excluant les droits fondamentaux des parents'

In English…

However, it is important to underline that the superior interest of the child is not, in principle, opposed to the fundamental right of parents to live a family life with their children. The rule of the superior interest of the child cannot be interpreted as a rule excluding the fundamental rights of the parents.'

In plain language

• Parents matter too.

From a parent’s point of view

• Yes, psychometric testing.

• Consideration of parenting etc.

• Consideration of facts of the case, etc.

• But then…own personal background.

Impact.

• How does it feel to have the most vulnerable parts of your pastcommitted to a report that is used in court to support the permanentremoval of your child from you?

• Language and discourse – the effect on others.

• For how long will your report be available for people to read?Generations?

Personal background

• 1st time he/she has ever spoken about it in depth.

• Re-visitation of the most painful aspects of the past?

• A conclusion / recommendation.

• Followed by social worker. Followed by guardian. Followed by the judge.

Often

• ‘Does not work openly and honestly with professionals.’

• ‘Puts her needs above those of the children.’

• And if she does work openly and honestly with professionals and thechildren are still removed? Sense of betrayal?

Where does the parent go from that?

• Legal aid discharged.

• Adult social services?

• GP for therapy?

• Voluntary agencies – the Samaritans.

• Pause ?

Or

• Get pregnant again, to compensate for loss?

Three plays

• Faith, Hope and Charity.

• Daisy, through the looking glass.

• Adoption – but what comes next.

Just a moan? I hope not

• Early intervention.

• Early use of expertise.

• Avoidance of proceedings.

• Far stronger mediation in public law.

• Better use of pre-proceedings.

• Support during proceedings.

• Some form of after-care.

Job not done

• Child placed for adoption. Parents on the streets.

• Parents treated with dignity?

Five areas in which I am working

• Education and information.

• Voluntary agencies and Local Authority work supporting family (no court involvement).

• Pre-proceedings stage.

• During proceedings.

• After proceedings.

Therapy , counselling, intervention and support

• Do they get confused / elided?

• Do different types of therapy get confused – mentalisation, CBT, CAT, etc.

• Yes, there is a need for better support at each stage of the five areas above. Families in Care and the Nelson Trust.

• Yes, counselling has its place.

• Yes, intervention can be effective – the Pause programme shows this.

FDAC

• Yes, it works. For drugs and alcohol.

• Why do we invest so much in drugs and alcohol and not in mental health…learning disability…homelessness…etc?

But therapy isn’t the same

• Sometimes the issues are so profound that they do require therapy.

• Not every case is suited to 26 week disposal. The courts will extend that period if necessary.

• Typical cases – learning disabilities, ‘personality disorders’ (what is a ‘trait’???).

What is the role of the psychologist?

• Social Worker++ ?? - really ?

• Someone we turn to when we are stuck??

• An expert, who is instructed when there are, or appear to be, psychological issues.

The law

• Section 13(6) of The Children and Families Act 2014 and Part 25 of The Family Procedure Rules 2010.

• ‘Necessary to assist the court to resolve the proceedings justly.

• What does necessary mean?….Er….well it means necessary – Re H-L (Expert Evidence: Test for Permission) [2013] 2 FLR 1434.

Psychological reports

• What are they for? To show the experts supreme intellect. To dazzle the court with science? To find a cure for insomnia through prolixity?

• If a court bundle has 1000 pages, how many minutes a page should the judge set aside to read the whole bundle?

• They are there to help the court find a solution.

• Executive summaries.

If recommend therapy

• Also recommend how to find it?

• Is the recommendation realistic?

• What charitable organisations are there that provide such therapy?

• Should there not be one?