The case of N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588, may at first glance have limited relevance to most family law practitioners, but the key message is about consistency.
The parents of the child in question were members of the Haredi Hassidic (ultra orthodox) Jewish tradition. During the course of the case it became clear that an independent social worker (ISW) was needed to report on the family. Father initially put forward a suggested name for a female ISW who became unavailable, Mother put forward another name for a female ISW that Father opposed, stating that his preference was for a male ISW.
By the time the court addressed this, Father’s stance had hardened and he asserted that his human rights would be breached if an female ISW were appointed.
The court appointed a female ISW rejecting Father’s arguments. Father appealed asserting that his Article 6 rights were breached by the appointed of a female ISW, that the appointment also failed to attach adequate weight to his religious and cultural beliefs, and that a male ISW could be appointed without upsetting the court timetable.
The Court of Appeal (CoA) considered the matter and made it clear that, while the appointment of an expert primarily on the basis of their gender was not impossible, evidence would be necessary to show this was required.
The CoA noted that father’s stance had changed and had no difficulty in dismissing his appeal as the judge making the initial decision had taken all proper factors into account.
The messages to take away from this case are twofold, first to insist on an expert based on gender is a very tall order, mere allegations of domestic abuse are insufficient and there must be evidence. It is hard to imagine such a scenario.
Secondly, whilst it is most doubtful that Father would have been successful had his case been consistent, his obvious inconsistency in stance was fatal to his case.
