Section 13 : Unlucky for some

[EDITED TO CORRECT ERROR – see below]

I knew it. I’ve had my Red Book for less than a week and something is missing. I gave up on carrying it around at all last year as it was superceded by a deluge of stuff immediately upon publication (no fault of Jordans). And I’ve been quite enjoying having a new, complete one by my side at court this week.

But sadly there is something missing from my lovely pristine 2014 edition. And it’s quite important.

Because, whilst most of Part 2 of the Children & Families Act 2014 comprises of amendments to the Children Act 1989, there are also some provisions which are freestanding. But they aren’t in the bible. [EDIT : Yay! It’s NOT MISSING. It’s just hiding at page 768. Thanks to the editor at Jordans for spotting my gripe and putting me right so quickly.]

So, I shall be printing out and carrying inside my red book a copy of s13, which provides (as well as directly amending s38(6) of the CA 1989) that :

Control of expert evidence, and of assessments, in children proceedings

(1)A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.

(2)Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.

(3)A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.

(4)Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible.

(5)In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.

(6)The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

(7)When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to—

(a)any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,

(b)the issues to which the expert evidence would relate,

(c)the questions which the court would require the expert to answer,

(d)what other expert evidence is available (whether obtained before or after the start of proceedings),

(e)whether evidence could be given by another person on the matters on which the expert would give evidence,

(f)the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,

(g)the cost of the expert evidence, and

(h)any matters prescribed by Family Procedure Rules.

(8)References in this section to providing expert evidence, or to putting expert evidence before a court, do not include references to—

(a)the provision or giving of evidence—

(i)by a person who is a member of the staff of a local authority or of an authorised applicant,

(ii)in proceedings to which the authority or authorised applicant is a party, and

(iii)in the course of the person’s work for the authority or authorised applicant,

(b)the provision or giving of evidence—

(i)by a person within a description prescribed for the purposes of subsection (1) of section 94 of the Adoption and Children Act 2002 (suitability for adoption etc.), and

(ii)about the matters mentioned in that subsection,

(c)the provision or giving of evidence by an officer of the Children and Family Court Advisory and Support Service when acting in that capacity, or

(d)the provision or giving of evidence by a Welsh family proceedings officer (as defined by section 35(4) of the Children Act 2004) when acting in that capacity.

(9)In this section—

  • authorised applicant” means—

    (a) the National Society for the Prevention of Cruelty to Children, or
    (b) a person authorised by an order under section 31 of the Children Act 1989 to bring proceedings under that section;
  • child” means a person under the age of 18;

  • “children proceedings” has such meaning as may be prescribed by Family Procedure Rules;

  • the court”, in relation to any children proceedings, means the court in which the proceedings are taking place;

  • “local authority”—

    (a) in relation to England means—

    (i) a county council,
    (ii) a district council for an area for which there is no county council,
    (iii) a London borough council,
    (iv) the Common Council of the City of London, or
    (v) the Council of the Isles of Scilly, and

    (b) in relation to Wales means a county council or a county borough council.

(10)The preceding provisions of this section are without prejudice to sections 75 and 76 of the Courts Act 2003 (power to make Family Procedure Rules).

That checklist at s31(7) is quite important. Print it. Keep it to hand. Wave it when necessary.

s10 (MIAMS) is also freestanding, but that is probably a less important thing to have in your handbag at court because it is enabling for the purposes of the FPR.

Also quite important, are some of the transitional provisions. It is worth having this one to hand from the C & F A (Transitional Provisions) Order 2014 :

Care, supervision and other family proceedings: time limits and timetables

8.  Where proceedings to which section 32 of the 1989 Act applies—

(a)were commenced but not disposed of prior to the commencement date;

(b)were subject to a timetable drawn up by the court under section 32(1) of the 1989 Act prior to the commencement date; and

(c)the timetable provides for the proceedings to conclude on a date after the conclusion of a period of twenty-six weeks beginning with the day on which the application was issued,

section 32(1)(a)(ii) shall be read as if the reference to the period of within twenty-six weeks beginning with the day on which the application was issued, is a reference to the period ending with the date specified in the timetable (referred to in paragraph (b)), as the date for the disposal of the application. 

Which means (roughly) that in pre-existing cases already fixed for final hearing or with a specified timetable (which of course they should all have) you treat the pre-existing end date as the end of week 26, and any extension beyond that will require justification under the provisions of s32 CA 1989 (as amended).

4 thoughts on “Section 13 : Unlucky for some

  1. Hi Lucy, you should find CFA 2014, s 13 on page 768 of the Red Book 2014.

  2. Naughty step for you, Lucy.

    “Because, whilst most of Part 2 of the Children & Families Act 2014 comprises of amendments to the Children Act 1989”

    No, it comprises amendments or it consists of amendments. Whichever you please, and I prefer the former, “comprises of” is just plain wrong!

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