The Family Law Courts Development Committee issued guidelines in relation to the conduct of assessment and preparation of reports under section 47 of the Family Law Act 1995 and/or section 32(1)(a) of the Guardianship of Infants Act 1964.
These are quite onerous in terms of the obligations they place on the parties and/or their legal representatives to undertake detailed steps when engaging with any potential assessor before making an application for appointment to the court.
The extent of the information or documentation that may be given by either party to an assessor can very often give rise to controversy.
While the guidelines make it clear that it is not a matter for an assessor to adjudicate on the facts in dispute between the parties, it is nonetheless usual for parties to be concerned about what information has been provided to the assessor by the other party – and/or the extent of the information they believe should be provided to the assessor on their behalf.
As a consequence, it is not uncommon for parties to provide the assessor with substantial information by way of background to the case, including information and documentation that is critical of the other party.
The guidelines are predicated on a transparent process being conducted by the assessor. To that end, there is an obligation on the parties to “acknowledge that no documentation (other than documentation requested by the assessor) shall be furnished by either of them and/or their legal representatives without the prior agreement of the other party”.
There is then a mandatory obligation on the assessor to “acknowledge that any documentation requested by, and provided to, the assessor by each of them, shall be furnished simultaneously to the other party and/or their legal representatives”.
In addition, the guidelines also provide that the parties will apply to the court to lift the in camera rule in respect of any such in camera documentation that may be required by the assessor in the conduct of the assessment, or which either party may wish to provide to the assessor as part of the assessment process.
Obligations of the assessor
The first obligation imposed on an assessor is to provide their CV, stating their relevant qualifications and experience. This should include details of their membership of any relevant professional body and provide information in relation to the complaints procedure of that professional body.
This is a process that many assessors undertake as a matter of course but is, nonetheless, a vitally important obligation that should be complied with in all cases.
The guidelines then go on to require the assessor to provide the parties and/or their legal representatives with:
- Details of the assessment, including particulars in relation to the likely meetings,
- Who the assessor wishes to meet,
- Whether the meetings are with parents and child/children) and/or the child/children) alone, and
- How the assessor intends to communicate with the parties, and related matters.
In addition, the assessor must set out the information and documentation that the parties should provide, including from third parties or institutions (such as school or medical reports).
Disclosure of all of these details is an important factor in ensuring transparency in the process, and also in providing the parties with some understanding of what the assessment process will entail.
This is crucial in circumstances where participation in the assessment can be very stressful for the parties and the children involved.
Voice of the child
In light of the requirement to hear the voice of the child in certain cases, the assessor is obliged, where appropriate, to indicate in their report how the voice of the child has been heard.
This can be an important issue as, in effect, assessors preparing reports under section 47 of the 1995 act and/or section 32(1)(a) of the 1964 act are very often effectively fulfilling two functions – namely, making recommendations as to the welfare of the child, but also determining and conveying the child’s views.
If there is any issue as to whether or not it is appropriate for the assessor to undertake this dual function, then this is something that should be determined by the parties at the outset and, if necessary, adjudicated upon by the court in the context of the appointment of the assessor.
The issue of the apportionment of the assessor’s fees between the parties is ultimately a matter to be determined by the court.
The guidelines place an obligation upon the assessor to provide an estimate of costs for the assessment and the preparation of the report, details of the required timing of the payment for the report, and also the costs of court attendance.
There is also a provision for the assessor to notify the parties in the event of any revised cost estimate.
In addition, it is recommended that the parties put funding in place for the payment of the fees at the outset of the process. While it can be relatively easy for the parties to agree to the apportionment of the fees at the outset, the actual payment of fees can be another matter.
Further, significant delays can arise in both the assessment process and finalising the report if fees are not paid promptly.
Most, if not all, assessors operate on the basis that the report will only be provided to the court once all fees in relation to the assessment and the preparation of the report have been discharged.
The willingness of a party to discharge their share of those fees can sometimes be coloured by how the party believes the assessment went. In those circumstances, the guidelines suggest that the funding of the fees should, where possible, be put in place at the outset of the process.
Management of the assessment
The guidelines provide that, subject to the overarching supervision of the court, the assessor has general responsibility for (and authority over) the management of the assessment process.
This is essential to allow the assessor to be able to carry out the assessment in any way he or she feels is necessary.
It is, of course, open to either party to go back to court seeking further directions in relation to the conduct of the assessment. However, this will inevitably give rise to further, and potentially significant, legal costs.
Therefore, it is envisaged that the parties will comply with the general requirements of the assessor in the conduct of the assessment, subject to an obligation in the guidelines for the assessor to endeavour to accommodate all reasonable requirements of the parties.
Normal requirements of the assessor would include necessary information being provided to him or her, and the consent of the parties to allow the assessor to obtain reports from third-parties or professionals (for example, doctors, schools, etc).
It is also important, however, for the assessor to bear in mind that the guidelines operate on the basis of transparency.
Therefore, if the assessor is relying upon documentation or information from third-parties, then this information should, in the ordinary course, be shared with both parties by the assessor.
Release of the report
Both section 47 and section 32 provide that reports prepared under the relevant sections shall be provided to the parties. Section 47(3) provides: “A copy of a report under subsection (1) shall [emphasis added] be given to the parties to the proceedings concerned.”
Although there has been considerable controversy over that subsection, section 32(4) provides: “A copy of a report under section (1)(a) may be provided in evidence to the proceeds and shall [emphasis added] be given to (a) the parties to the proceedings concerned and (b) subject to subsection (5), if he or she is not a party to the proceedings, to the child concerned.”
Both sections would, therefore, appear to make it mandatory that a copy of the report shall be provided to the parties to the proceedings. In reality, the practice of the courts has invariably been not to provide copy reports to the parties directly, but to make arrangements for the contents of the report to be made known to the parties.
The practice varies significantly in different circuits, including permitting the parties to read the report personally in the presence of a solicitor or in the Circuit Court office; requiring that the report be read to the party, but the party not being able to read the report by themselves; or, in some instances, only allowing the parties to be made aware of the recommendations in the report.
These restrictions appear to have developed on an ad hoc basis in different circuits. In the High Court, the usual practice is to allow the parties to read the report in full and, in certain cases, to be provided with a copy of the recommendations.
The guidelines seek to mirror the practice and procedure that appears to have been adopted in most courts, whereby the release of the report to the parties is a matter to be determined by the court.
While it is arguable that this is not in compliance with the strict terms of the legislation, it is considered reasonable to adopt an approach that complies with current practice.
In addition, the guidelines also allow for the assessor, subject to the relevant statutory provisions and the ultimate authority of the court, to express a view to the court as to whether all or part of the report may or may not be suitable for release to the parties directly, and make recommendations accordingly.
In that regard, the guidelines also make it entirely clear that the report prepared by the assessor is a report to the court, and should be provided by the assessor only to the relevant court office.
The guidelines confirm that the release of the report to the parties is then solely a matter for the relevant court.
Monitoring of the assessment
One issue that gave rise to considerable debate within the Family Law Development Committee was the issue of the extent to which the court should exercise oversight over the completion of the assessment and report, once a section 47/section 32(1)(a) order has been made.
In light of the increasing burden on the family law courts, many judges are slow to exercise any such oversight, as it may simply add to already overburdened lists. However, such reports are generally only ordered in relatively contentious cases.
Furthermore, the assessor is often asked to make recommendations in relation to matters that can be quite urgent, and are child-related cases that would ordinarily be given priority by the family law courts.
It is also to be noted that these are reports to the court, not the parties, and therefore it is a matter for the court if there is undue delay in a report being provided.
Finally, the court should have cognisance of section 31(5) of the 1964 act, which provides: “In any proceedings to which section 3(1)(a) applies, the court shall have regard to the general principle that unreasonable delay in determining the proceedings may be contrary to the best interests of the child.”
In all those circumstances, it is arguable that the court should exercise ongoing oversight once an order is made, if only to ensure that the assessment and report are concluded within a reasonable timeframe.
It may also be the case that, by keeping the matter before the court, a sense of urgency is maintained with the assessor and the parties in completing the assessment and finalising the report.
Therefore, the guidelines include the recommendation that the relevant application be kept in the court list for mention to review, if the report is concluded and, if there is any delay in concluding the assessment, the steps that need to be taken to ensure the report can be completed within a timeframe appropriate to the circumstances of the case.
Ultimately, however, that is a matter for the judge dealing with the application.
Other matters for consideration
The guidelines also suggest orders/directions that the court may consider making to assist the conduct of the assessment, in addition to the usual order made as to the costs of the assessment. These include:
- A direction that the parties shall comply with all reasonable requirements of the assessor, to enable the efficient conduct of the assessment,
- Lifting the in camera rule in respect of specified documents to be provided to the assessor,
- Where appropriate, identify in the order specific issues that the court would wish the assessor to address, and
- If appropriate, confirm that all relevant matters are governed by the in camera rule.
The guidelines are intended to assist the parties to the proceedings and the court- appointed assessor in approaching such assessments and reports in a fair, transparent, and efficient manner.
At this time, it is unclear as to the extent to which these guidelines are being availed of by practitioners and/or the courts.
The view of the judge
Ultimately, much is dependent on the view of the judge dealing with an application under the relevant sections.
Practitioners are, however, advised to consider how the guidelines may assist the parties to such proceedings, not least in circumstances where it is not uncommon for disputes to arise in relation to the conduct of such assessments.
If the parties, the assessor, and the court are all working to the guidelines, then it is anticipated that the potential for disputes to arise in relation to the assessment itself, with consequent additional costs and anxiety to the parties, would be mitigated.