My Reasons
64.I begin by setting out the legal backdrop to consideration of appeals against case management decisions. 65. Family Procedure Rules 2010, Rule 30.12 states:“Every appeal will be limited to a review of the decision of the lower Court. The appeal Court will allow an appeal where the decision of the lower Court was wrong”. 66.In Re TG (A Child) [2013] EWCA Civ 5, Sir James Munby, the then President of the Family Division, said this: This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964, para [47]: ‘Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process’. Second, as she went on to observe: ‘the Judge dealing with case management is often better equipped to deal with case management issues’. The Judge well-acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and ‘feel’ for the case superior to that of the Court of Appeal. Exactly the same applies in family cases. Thus, in Re C Thorpe LJ and I dismissed the appeal notwithstanding what I said was the ‘robust view’ His Honour Judge Cliffe had formed when deciding to stop the hearing. And in Re B I refused permission to appeal from an order of Her Honour Judge Miranda Robertshaw involving what I described (para [16]) as ‘appropriately vigorous and robust case management’. I said at (para [17]): ‘The circumstances in which this court can or should interfere at the interlocutory stage with case management decisions are limited. Part of the process of family litigation in the modern era is vigorous case management by allocated Judges who have responsibility for the case which they are managing. This Court can intervene only if there has been serious error, if the case management Judge has gone plainly wrong; otherwise the entire purpose of case management, which is to move cases forward as quickly as possible, will be frustrated, because cases are liable to be derailed by interlocutory appeals’. As Black LJ very recently observed in Re B (A Child) [2012] EWCA Civ 1742, para [35]: ‘A Judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task’”.67.In the case of Re P (Care Proceedings: Balancing Exercise) [2014] 1 FLR 824, the Court of Appeal refused an appeal against a case management decision from a Circuit Judge refusing an application for assessment by a psychologist of the father’s parenting capacity following the Local Authority’s negative parenting assessment of the father. In giving the lead judgment of the Court of Appeal, Black LJ said this at paragraph 56: “In my view, the Judge was not wrong to refuse the assessment the father sought. Case management decisions of this sort are particularly hard to appeal, and, in this case, it cannot be said that the Judge overlooked any considerations which were material. An assessment such as the Local Authority parenting assessment of the father can be challenged in ways other than obtaining a competing assessment. If the facts upon which the assessment has proceeded are wrong, they can be disputed. If the opinions are flawed, that can be explored in cross-examination, the author of the report being taken to the material which undermines or contradicts the conclusions he or she has drawn or, as the Guardian contemplated here, a party can take steps to address the problems that have been identified and/or that he or she acknowledges”.68.The 26-week requirement under section 32 was introduced as a means of driving down the length of care cases. The philosophy behind it was well-expressed in 2011 in this extract from the foreword to the Family Justice Review by David Norgrove: “Here, all the dedication to family justice can harm children not help them. Having read dozens of replies to our consultations, I was struck by the way in which almost every group thought things would be better were they allowed to do more including Judges, Magistrates, social workers and expert witnesses. Hardly anyone thought themselves should do less. The reality of course is that time and money spent on one child means less time and money available to help another. Dedication to achieving the best possible result for one child comes at the hidden expense of another whose case is delayed or whose social worker has to come again to court when they might have been working to help another child to remain safely with their birth family”. 69.More recently, the Family Court has again come under heavy workload pressure in response to the pandemic. Sir Andrew McFarlane, as head of Family Justice, gave guidance in June 2020 entitled “The Road Ahead” and in January 2021 in “The Road Ahead 2021”. The key message of the first document advocated a significant change in time management. Paragraph 43: “If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the Court affords to each hearing. Parties appearing before the Court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case and for oral evidence or oral submissions to be cut down only to that which it is necessary for the Court to hear”. At paragraph 47, it quoted the elements of the overriding objective and stated, “In these times, each of these elements is important but particular emphasis should be afforded to identify the welfare issues involved, dealing with the case proportionately in terms of allotting to it an appropriate share of the Court’s resources and ensuring an equal footing between the parties”.70.In his publication headed “President’s Memorandum: Experts of the Family Court”, the President of the Family Division said this: “An order authorising expert evidence will only be made where it is necessary to assist the Court to resolve the proceedings justly, section 13(6) of the Children and Families Act 2014 for children proceedings. Such expert evidence will only be necessary where it is demanded by the contested issues rather than being merely reasonable, desirable or of assistance, Re HL (a Child) [2013] EWCA Civ 655. This requirement sets a higher threshold than the standard of assisting the Court. The instruction of an expert is the primary reason for delay in the Family Court proceedings relating to children. The recent statistics show that an application for the instruction of an expert is almost invariably granted. To avoid delay, Courts should continue to consider each application for expert instruction with care so that an application is granted only where it is necessary to do so”.71.In his paper “Making Every Hearing Count”, published in March 2022, the President of the Family Division said this: “Applications for independent social workers or psychological assessments should not be necessary. The culture should be of Judges and Guardians trusting assessments made by the Local Authority unless a reason not to do so is established. The social worker is likely to know the family better than an independent social worker or a psychologist, and many such assessments add little or nothing to what the social worker can and should be able to tell the Court. The statute is clear; the instruction of an independent social worker or a psychologist will only be permitted if the evidence is necessary to assist the Court to resolve the proceedings justly, Children and Families Act 2014 at section 13(6). If such expert evidence is necessary, then the Court order should limit any report to no more than 25 pages in 12-font typeface”.72.It was further argued by the Local Authority that the appeal relies heavily upon the suggestion that there is a gap in the evidence following completion of the Local Authority’s assessments and suggested failure to deal with the gap in the evidence pertaining to analysis of orders, support and monetary plans to consider the children remaining with their grandmother. 73.Whilst the Children’s Guardian accepted the issues that the Local Authority raised, there would need to be an assessment of whether these risks can continue to be managed without exposing the children to significant harm. 74.However, the Local Authority’s case is that the deficits in the grandmother’s parenting cannot be sufficiently ameliorated to enable her to provide good enough care to the children. In the position statement of the social worker dated 26 January 2023, she states, “Given the risks outlined at birth and the Kinship Carer full assessment not being able to recommend any training, support or advice that would adequately alleviate these concerns, it remains the view of the Local Authority that D is unable to safely care for the children long term”. 75.There is, therefore, a difference of professional opinion between the Local Authority social worker and the Children’s Guardian. That is why there is provision for final hearings in care proceedings. The Family Court will often be presented with differences in professional opinion between safeguarding, medical and other professions and this is the role of the Judge, to determine which, if any, professional view the Court prefers. The solution is not for the Court to direct another expert, who may, after all, report a view that is inconsistent with both. It is not the role of an additional expert to be the arbiter between two contrasting and competing professional opinions. That is for the Judge. At a final hearing, the Court may prefer the evidence of the Local Authority and determine that the maternal grandmother cannot provide good enough care for these children or any of them. Alternatively, the Court may prefer the evidence of the Children’s Guardian and the other parties and take a different course. 76.In this case, the grandmother has been assessed not once but twice, both of which concluded negatively. A summary of the Local Authority’s concerns about the grandmother are set out in paragraph 4 of the position statement of the social worker dated 26 January 2023. The application by the grandmother for an independent social worker and party status was made at Week 30 of the proceedings, 26 weeks having expired on 30 December 2022. The care proceedings are currently at Week 33. There is yet to be an effective Issues Resolution Hearing. The maternal grandmother was also subject to a full assessment in 2009 in respect of her older three grandchildren by Manchester City Council. A full assessment was undertaken showing that she could meet the day-to-day needs of the children, however, there were safeguarding concerns raised in the assessment, which concluded negatively.77.There has been delay by the grandmother in pursuing this application, although I make no finding as to whether there has been any fault on her part. The full Kinship Carer’s assessment was completed in October. Solicitors instructed by her wrote on 30 November 2022 confirming that they had been instructed to challenge the assessment. It was not until 11 January 2023 that an application was made for party status with permission to instruct an independent social worker. That delay amounts to approximately two months. 78.I am not satisfied that the Magistrates did not properly apply the relevant law. Within their reasons, the Magistrates referred expressly to the provisions of sections 1 and 32 of the Children Act. They acknowledged that the child’s welfare is not the paramount consideration when making case management decisions, however, the need to avoid delay will always be an important factor. The Magistrates also had regard to the overriding objective in the Family Procedure Rules, Rule 1.1, and to Rule 25 of the Family Procedure Rules, dealing with the provision of expert evidence and also section 13(7) of the Children and Families Act 2014. The Magistrates also applied the right legal test in finding that they did not consider that the application for further assessment was necessary to resolve the proceedings justly. They also did not feel that it had been established that there was a gap in the evidence that made it necessary to appoint another expert at an interlocutory stage. 79.In my judgment, to suggest that an additional assessment by an independent social worker should be ordered to avoid any risk that at a final hearing, the Court decides that there should a further assessment is not the correct test to apply. The Court has to be satisfied at this stage that the additional assessment is necessary to enable the Court to deal with proceedings justly. 80.A decision as to whether the Local Authority is correct in its stance is a decision that can only be made once the Court has heard all of the evidence and performed a holistic evaluation of all the alternatives. The burden will be on the Local Authority to establish on the balance of probability the risk factors and deficits posed by the grandmother’s parenting of the children or any of them. It will have to provide the evidence to support its professional view and the Local Authority’s case will be subject to scrutiny and, no doubt, rigorous cross-examination and a Judge will have to form a view of that evidence. 81.The application made by the maternal grandmother with the support of all parties apart from the Local Authority was for an assessment by an independent social worker. However, the maternal grandmother has already been assessed twice by the Local Authority. The issue between the Children’s Guardian and the Local Authority is the failure to provide a detailed support plan that seeks to deal with the deficits and risks posed by the grandmother’s parenting. There is no criticism of the assessment of risk by the Children’s Guardian. 82.In my judgment, that does not mean that an additional assessment by a third expert is necessary to enable the Court to deal with proceedings justly. The right way to deal with that issue is for the Local Authority, without prejudice to its case that no support package will address the concerns and deficits of the grandmother’s care, to prepare an alternative care plan setting out what support could be put in place by the Local Authority in attempting to meet those deficits and risks. There is clear authority for that in a decision of the Court of Appeal in W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227 in which Ryder LJ said this, paragraph 81: “It is likewise not open to a Local Authority within proceedings to decline to identify the practicable services that it is able to provide to make each of the range of placement options and orders work in order to meet the risk identified by the Court. That is the purpose of a section 31A care plan. If a local authority were able to decline to join with the Court in the partnership endeavour of identifying the best solution to the problem, then there would be no purpose in having a judicial decision on the question raised by the application. It might as well be an administrative act. Parliament has decided that the decision is to be a judicial act and, accordingly, the care plan or care plan options filed with the Court must be designed to meet the risk identified by the Court. It is only by such a process that the Court is able to examine the welfare implications of each of the placement options before the Court and the benefits and detriments of the same and the proportionality of the orders sought”.83.In terms of any parenting work that the grandmother has done, any improvements in the children’s presentation at home and at school are concerned and the issue of whether the Local Authority has applied sufficient weight to those factors, that will be a matter for the Court’s scrutiny at final hearing. 84.In addition, the weight that the Local Authority has attached to the fact that the children have been with their grandmother now for a significant period of time, the opportunity to grow up in their maternal family, the children’s wishes and the grandmother’s willingness to support family time, arrangements with the children’s mother and C’s father, again, will fall under the scrutiny of the Court and, no doubt, form the basis of cross-examination of the social worker. 85.They do not justify a finding that it is necessary to appoint a third expert to provide yet another assessment of the grandmother.86.It is also incumbent in my judgment upon a Children’s Guardian in a situation like this, where the Guardian considers that the Local Authority may not have properly considered what support could be put in place for a potential carer to at least suggest what type of support the Children’s Guardian would expect to see and how that would meet any safeguarding concerns or parenting deficits, not simply to abdicate responsibility by suggesting another expert should prepare another assessment.87.In my judgment, this case is a good example of the bad habits that have become a regular feature in care cases before the Family Court, the over-preparedness to seek the input of additional experts, the apparent disregard for delay that the involvement of additional experts almost always brings to cases, the willingness to undervalue the role of social workers as experts in family proceedings and to elevate the Children’s Guardian to a position of a superior expert. 88.In my judgment, these, with a willingness to abdicate responsibility to other experts have conspired to lead to far too many experts being sought in the Family Court and subsequently being ordered. This has to stop. That was the recommendation of the Public Law Working Group and is the clear and consistent message of the President of the Family Division. 89.I do not consider that in this case, the Magistrates were wrong in refusing the application for an assessment by an independent social worker and in those circumstances, the appeal is dismissed.