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Family Law

The leading authority on all aspects of family law

13 DEC 2012

The developments in section 38(6) directions and instruction of experts

Safda Mahmood

Local Authority Solicitor:

This article considers the challenges facing those who seek a direction under s 38(6) Children Act 1989, so as to seek a further assessment, involving predominantly the child.

There is a consideration of the factors to be satisfied, as well as the practicalities of seeking viability assessments and timing of assessments. The major case law is considered and in particular, the need to take a holistic approach to evidence before the court.  

There is a particular discussion of the revised Practice Direction 25A (Experts and Assessors in Family Proceedings) which accompanies the Family Procedure Rules 2010, and the position with the costs of the assessment, pursuant to the Community Legal Service (Funding) (Amendment No 2) Order 2011, which sets out amongst other things, the details as to rates of payment of expert services.

There is also consideration of the recent High Court authority surrounding the position with the payment of expert fees in children proceedings, namely, the case of A Local Authority v DS, DI and DS (Through a Children's Guardian) [2012] EWHC 1442 (Fam), [2013] 1 FLR (forthcoming), whereby the President of the Family Division, Sir Nicolas Wall, has set out some very useful guidance in relation to what should be set out in court directions, and subsequently in the letter of instruction.

The full version of this article appears in the December 2012 issue of Family Law.

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