Father in contact dispute wins costs appeal

Family|June 12th 2015

A father caught up in a contact dispute has won an appeal against an order that he pay half the costs of a psychological report.

The order in question was made by magistrates sitting at the Family Court in Dover last November. This stated that the father should be subject to a “full psychological assessment” by an independent expert, and that he should pay half the costs of this, “the court deeming that the costs are a necessary and reasonable disbursement”.

The court in question consisted of three magistrates, along with a legal advisor. The separated parents of a three year-old boy were disputing the father’s access, along with a number of other parenting issues, including the child’s surname and his school arrangements. The father sought unsupervised contact with the boy but the mother opposed this. He was Serbian, with a limited command of English, but also acting as a litigant in person. The mother, by contrast, had legal representation.

The father took the issue to the Court of Appeal, where Lord Justice Ryder delivered a judgement very critical of the magistrates’ ruling. His Lordship quoted from a transcript of the original hearing:

Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

A “But that is wrong“.

Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”

His Lordship noted that this placed the burden of proof on the father:

“…there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.”

This was “simply wrong”, declared the Judge.

In addition, the magistrates had not fully considered new rules on the use of expert guidance in court cases, introduced in 2013. These state that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”

Lord Justice Ryder did not believe the facts of the case warranted the inclusion of an expert, saying:

“This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the [Cafcass Family Court Advisor] had concluded that there were no safeguarding [protection] issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The [Family Court Advisor’s] aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.”

The magistrates had anticipated that the mother’s share of the report costs would be to be covered by legal aid, the Judge noted, but no attempt was made to ascertain whether or not the father could pay.

Lord Justice Ryder concluded:

“For all these reasons the magistrates order cannot stand and must be set aside.”

In the Matter C (A Child) is available to read here.

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Comments(3)

  1. Luke says:

    So let us understand this, due to an allegation by the mother backed up by no evidence at all it was decided that a man who can afford no legal representation be subject to a “full psychological assessment” by an independent expert, and that he should pay half the costs.
    It had not been established whether the costs were £4,000 or £10,000 (!), but the mother – who was legally represented (Legal Aid ?) didn’t care because it was expected that Legal Aid would cover her portion. How the father was going to pay nobody gave a damn about, that was his problem.
    .
    It was good that the Judge intervened but 3 things spring to mind:
    .
    (1) What does it say about a legal system which allows us to even get into that sort of situation ?
    .
    (2) How does Legal Aid help here ? As usual it seems to ‘stack the deck’ against one of the parties.
    .
    (3) Why is it a surprise to some that faced with this sort of legal system fathers sometimes eventually give up trying to get proper contact with their children 🙁
    .

  2. Luke says:

    By the way, this clearly happens a lot, my relative was ordered by the Family Court Judge (at the request of the divorcing spouse) to have a full psychological report involving a number of meetings with the children – and to pay half the costs (which were HUGE). The Judge thought it would be ‘good for them to do’.
    .
    There was no psychological history of anything at all and no evidence was brought forward to justify such tests. Of course nothing untoward was found but it extended the whole process for the lawyers and basically everyone made a ‘nice little earner’ out of it…
    .

  3. Wistilia says:

    Legal Aid monies being abused once again.

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