Court directs joint psychological assessment with full disclosure of social work reports to expert.

[2014] IEDC 01

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY (CFA)

APPLICANT

-AND-

H

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18

IN THE MATTER OF CHILDREN

17TH JANUARY 2014

1. The CFA is applying to this court for a care order under section 18 of the Child Care Act 1991 (CCA) in respect of the children of

the respondent mother H. Hearing dates have been fixed for that application, some months hence.

2. The CFA has applied for and has been granted a series of interim care orders in respect of the children. On foot of those orders,

the children have been and remain in the care of the CFA, on an interim basis.

3. Some of the children have displayed behavioural difficulties. The applicant and the mother agree that these children should be

assessed by a clinical psychologist. There has been agreement between the parties for some considerable time as to the

appropriateness of psychological assessment being carried out.

4. The date of possible commencement of such assessment was initially delayed for reasons of funding, and issues regarding

procurement of psychological services within the resources of the Health Service Executive (which was then also the applicant) or in

the private sector. That delay was regrettable. In or about 5 months ago, the funding and procurement issues were resolved, funding

was secured and a psychologist identified to carry out the assessment.

5. The mother states that she expected at that stage to be furnished with a draft of the letter of instruction which the applicant

proposed to furnish to the psychologist, and to be furnished with the psychologist’s Curriculum Vitae (C.V.). This was to facilitate

possible agreement of the parties furnishing a joint letter of referral to the psychologist. This did not occur. In fact, the applicant

drafted and sent a letter of instruction to the psychologist, without furnishing a draft to mother, without discussion and without

agreement. The applicant also sent documents to the psychologist, including social work reports (hereinafter “the social work

reports”) which had been furnished to the court in the course of the proceedings to date and which had been prepared by the social

workers dealing with the case. The mother says that she only became aware that the letter of instruction and documents had been

sent to the psychologist when the social worker was being cross examined in connection with an application to extend the interim

care order. At that time the mother also became aware that the allocated social worker had been in direct contact with the

psychologist in connection with the proposed assessment. (This court hearing occurred some 12 -10 weeks after the funding and

procurement issues had been resolved).

6. It is regrettable that such a difference occurred in the respective parties’ understanding of how to proceed with the process of

obtaining the psychological assessment and in particular as to discussion of and possible agreement of a letter of instruction. At this

stage I merely describe that the difference came to exist without analysis of how this occurred or who (if anyone) might be to blame.

7. Three applications for directions were then issued under section 47 of the CCA. Two of these applications were issued by the

applicant, and one by mother. In essence, the mother sought the appointment of a psychologist to carry out an assessment on a

joint referral basis and with an agreed set of documents being furnished. The applicant initially sought to have the psychological

assessment proceed on the basis of the letter of instruction and documents already sent to a named psychologist. Subsequently the

applicant sought a direction that a psychological assessment be carried out by a psychologist nominated by the applicant, and that

all social work reports and Guardian ad Litem reports be furnished to such psychologist without prejudice to mother objecting to,

contesting or rebutting etc. any matter contained in such reports.

8. These three applications for directions were heard on 24th January 2014. Written submissions were filed in advance by both

parties. Having read those submissions, and having heard opening oral submissions from the parties, it was clear that both parties

remained of the view that a psychological assessment should be carried out, that the parties if possible should agree on the

psychologist that would carry out the assessment, and that if possible a joint letter of referral should be sent. The applicant agreed

that the psychologist to whom their letter of instruction and the documents had previously been sent should not now be instructed.

The applicant also agreed that the letter of instruction which it had previously sent should not be used to instruct the psychologist.

The parties were however unable to proceed to consider the possible terms of a joint letter of instruction owing to their disagreement

as to whether the social work reports should be furnished to the psychologist with the letter of instruction.

9. The applicant submitted that:

• the social work reports are prepared by professionally qualified social workers on the basis of information known to

them from the social work file and investigations;

• the social workers are neutral in the proceedings, having no interest in any particular result other than what is in

the best interest of the child;

• the social work reports contain information that it would be essential that the psychologist would have access to

and knowledge of in order to properly carry out an assessment;

• the social work reports have been sworn in evidence in the various applications made to the court to date;

• no psychologist would accept instruction without sight of the social work reports; and

• the mother would be aware of the contents of all social work reports and would be entitled to bring to the

attention of the psychologist any dispute that she might have with the contents and inform the psychologist of any

matters she disputes and why she disputes them.

10. The respondent submitted that:

• it is necessary to ensure that expert assessments are obtained in a fair transparent and open manner;

• appointment and instruction of an expert assessor should be done in compliance with natural

constitutional and “convention” [European Convention of Human Rights] rights of parents;

• procedural rights to fairness extend to fairness in the preparation of assessments and reports of

assessments;

• the respondent disputes much of the substance of the social work reports, that the social work

reports have not yet been proven in court and that any proposed expert must be made aware of this;

and

• it is unfair and costly to expect the respondent to prepare “rebuttal” documentation in respect of the

social work reports.

The respondent submitted that her concerns might be addressed by the applicant furnishing the expert with a summary of the social

work reports, and the respondent submitting a summary of the matters which she disputes.

The respondent further referred to a document from a neighbouring jurisdiction, the “Children Order Advisory Committee Best Practice

Guidance 2nd Edition 2010” and in particular section 10.7 - 10.10 and appendix 35.

11. Evidence was given by a clinical psychologist (not instructed or to be instructed in respect of the proposed assessment). She set

out the process by which a psychological assessment ought to be carried out, including interview and observations of the subjects

and other relevant persons, cognitive assessments, mood assessments as appropriate, meeting the subjects of the assessment and

other relevant persons, having sight of (by which I understand her to mean reading) relevant reports. She said that such assessments

ought to be carried out in accordance with an appropriate code of practice (she instanced the code of practice of the British

Psychological Society). She said that psychologists are trained to be and ought to be non judgemental, and would engage in

triangulation of evidence before formulating and presenting an opinion. She acknowledged that if there was an error in the background

information taken into account by the assessor, this might lead to a problem with any conclusions reached. She was of the opinion

that it would be essential for any psychologist carrying out an assessment to have access to background information including the

social work reports, and that no psychologist would or should carry out such an assessment without sight of such reports.

12. It is common in child care cases that assessments are sought, such as the psychological assessment to be sought in this case.

Such assessments may contain recommendations as to the therapeutic needs of the subjects, which will be informative and helpful in

providing for such needs regardless of the outcome of the proceedings. Assessments which are purely therapeutic are not generally

relevant to the “threshold” issues which will determine whether the order sought will be made. Where the assessment includes an

assessment as to the cause or origin of the assessed behaviours, such an assessment may inform the court as to “threshold” issues

such as neglect or abuse. The assessment to be sought in this case will, I understand, seek an opinion as to cause or origin of

observed behaviours of the subject children and may therefore go to the “threshold” issues.

13. In respect of expert reports and assessments in child care cases, this court welcomes and supports all efforts to agree joint

referral and instruction of such experts on the basis of agreed letters of instruction and agreed access to documents. “Joint

instruction” is common in many jurisdictions, supported to a greater or lesser extent by statutory or regulatory provisions and / or by

case law. On balance, such a practice appears to have many advantages, not least in respect of cost, and in respect of (hopefully)

clarifying (and maybe reducing) the points of difference or conflict between the parties. Such a practice also assists fulfilment of

aspirations as to fairness transparency and openness.

14. There are many templates in existence for preparation of letters of instruction to experts. It is not proposed to endorse any

particular template.

15. I am of the view that it is for the instructed expert to identify the process of assessment to be carried out, including what

background information and documents are to be considered and read. In order for the expert to do this, the expert must be informed

of the existence of such information and documentation. If the expert seeks sight of documents or reports such as social work

reports, such reports should be furnished. Unless and to the extent to which such reports have been fully admitted or proven in court

(as opposed to being sworn to in court and placed on the court file), the instruction to the expert should contain a statement that

such reports have not been proven in court and may contain matters which are disputed by the respondent, or which are “hearsay”

or other evidence that may not be admissible in court.

16. In the context of a joint referral, the C.V. of the proposed expert(s) should be available to all parties prior to instruction.

17. In the context of joint instruction there should not be any communication between the instructed expert and social workers or

other parties on behalf of the CFA, or between the instructed expert and the respondent, without such communications being noted

by the expert and the content of such communications being made available in a timely way to the other party.

18. As a general proposition, it is appropriate that an expert be told what information is available and it is for the expert to decide

what information the expert wishes to inspect. In this case it will be for the instructed psychologist to indicate whether he/she

wishes to have sight of the social work reports. If so, I lift the in camera rule to allow the reports to be furnished.

19. I am satisfied in this case, where I have evidence from an experienced clinical psychologist regarding the issues that a

psychologist would be likely to identify, that the social work reports in this case should be listed in a schedule, the schedule be

furnished to whatever psychologist is agreed to be instructed, and that if the psychologist identifies that he or she requires the social

work reports then the social work reports are to be furnished to the psychologist without further direction of the court.

20. The respondent must be given the opportunity to object to or deny or rebut matters contained in the social work reports. I am of

the view that in order to preserve both fairness and the perception of fairness that any such objection denial or rebuttal should be

furnished to the psychologist at the same time as the reports themselves.

21. In respect of the 3 applications for directions before the court, I direct as follows:-

i. The appointment of a suitably qualified professional to carry out a psychological assessment of both children.

ii. The preparation of a letter of joint referral to the aforementioned professional.

iii. The preparation of a schedule of the documents that are available to the aforementioned professional, said

schedule to accompany the joint letter of instruction.

iv. The aforementioned professional is to be furnished with such of the documents identified by him or her from the

schedule.

v. In respect of any such documents being furnished to the aforementioned professional the respondent shall be

entitled to contemporaneously furnish to the aforementioned professional any objection denial or rebuttal of matters

contained therein.

vi. Liberty to apply.