The Court of Appeal has rejected a father’s application for the social worker instructed in his child arrangement case to be male.

In N (A Child), Re (Instruction of Expert) Lord Justice Baker said the appellant had not produced any evidence to show that the appointment of a woman was a breach of his human rights. But the appeal judge noted that the decision depended on the circumstances of the case and he did not ‘rule out the possibility’ that the court might order an expert be a particular gender.

He added: 'Justice requires the court to adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions.

‘It is, however, imperative that any application that the expert instructed be of one specified gender must be clearly explained and fully supported by evidence demonstrating why such a stipulation should be included.’

The court heard that the parents were both raised as members of the Hassidic Haredi Orthodox Jewish community and married in 2013. They lived together in Israel but formally separated in 2017 and the mother returned to England to live in the Hassidic Haredi community in north London. Earlier this year, the father applied for child arrangements, a contact order and an order preventing the mother from changing the child’s school.

A independent social worker – a female with experience of the family’s community – was nominated and her appointment supported by the father, but the mother objected suggesting that she may be a biased choice.

An alternative was sought, with the mother putting forward two other female candidates, and the father proposing the appointment of a male expert. He now submitted that if he wanted to have faith in the assessment it was important he was ‘on board’ with the identity of the assessor.

He argued it was prejudicial to his case and represented a disproportionate interference with his Article 6 rights if the court sanctioned an appointment that was ‘doomed to fail from the outset’.

The mother, who made allegations of domestic abuse, said she would feel ‘more comfortable’ with a woman bearing in mind her experiences.

His Honour Judge Richard Clarke, sitting at the Family Court in Watford, said the father’s suggested expert was considerably more expensive and would take longer, and in normal situations the court would not authorise their instruction. Nothing was submitted, he said, which would cause the court to change this position.

On appeal, the father said the court had failed to attach adequate weight to his right to a fair hearing and to his religious and cultural beliefs.

Lord Justice Baker said the judge was ‘fully entitled’ to reject the father’s human rights arguments. Until a relatively late stage there was little sign that the father might object to the appointment of a female social worker, and it was noted that he dealt with a number of female professionals during the course of the proceedings, including a female solicitor, barrister, family court adviser and the initial expert suggested.

‘The [initial] position statement reported that the father considered it ‘essential’ that the assessment be carried out by an ISW with experience of undertaking assessments within the Orthodox Jewish community,’ added the judge. ‘If the father at that stage had also regarded it as ‘essential’ for religious or cultural reasons that the assessment be carried out by a man, one might have expected the position statement to say so. It did not.’

The matter was restored for a further case management hearing to reconsider the court timetable.


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