SCA 1981, s 70 (and an equivalent provision for county courts in in County Courts Act 1984, s 63) enables the court to appoint assessors:
70 Assessors and scientific advisers
(1) In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2) The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.
FPR 2010, r 25.20 explains how this can be done. That either of s 70 or s 63 apply in the family court is not as clear as it might be. The assessor could be a person whose opinion – including decision-making – might assist the court. Their role in many ways would be similar to that of a jointly funded expert. The issue of costs remains (s 70(2) above); but so far as the court has power to award costs against a third party (SCA 1981, s 51(3)), perhaps it could order assessor’s costs from public funds (ie HMCTS).
(3) Attorney General
In H v L and R  EWHC 3099 (Fam),  2 FLR 162 Roderic Wood J and the Attorney-General arranged for an advocate to the court to be appointed for the father limited to cross-examine a vulnerable witness for the mother. That was dealt with under the Attorney-General’s Memorandum of 19 December 2001  Fam Law 229 (see eg Family Court Practice 2014 at p 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court). A request comes to the A-G from the court. The memo with appointment if the A-G so decides (paras 3–8), and in particular it stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).
Memorandum – Requests for the Appointment of an Advocate to
(1) The memorandum has
been agreed between the Attorney-General and the Lord Chief Justice. It
gives guidance about making a request for the appointment of an advocate to the
court (formerly called an amicus curiae).
(2) In most cases, an
advocate to the court is appointed by the Attorney-General, following a request
by the court. In some cases, an advocate to the court will be appointed by the
Official Solicitor or the Children and Family Court Advisory and Support
Service (CAFCASS) (see paras 11 and 12 below).
The role of
an Advocate to the Court
(3) A court may properly
seek the assistance of an advocate to the court when there is a danger of an
important and difficult point of law being decided without the court hearing
relevant argument. In those circumstances the Attorney-General may decided to
appoint an advocate to the court.
(4) It is important to
bear in mind that an advocate to the court represents no one. His or her
function is to give to the court such assistance as he or she is able on the
relevant law and its application to the facts of the case. An advocate to the
court will not normally be instructed to lead evidence, cross-examine
witnesses, or investigate the facts. In particular, it is not appropriate for
the court to seek assistance from an advocate to the court simply because a
defendant in criminal proceedings refuses representation.
(5) The following
circumstances are to be distinguished from those where it will be appropriate
for the court to seek the assistance of an advocate to the court:
a point of law which affects a government department is being argued in a case
where the department is not represented and where the court believes that the
department may wish to be represented;
the Attorney believes it is necessary for him to intervene as a party in his
capacity as guardian of the public interest;
the court believes it is appropriate for a litigant in person to seek free (pro
in a criminal trial, the defendant is unrepresented and the advocate to the
court would be duplicating the prosecutor’s duty as a minister of justice ‘to
assist the court on all matters of law applicable to the case’;
in a criminal case in relation to sentencing appeals there are issues of fact
which are likely to arise and the prosecution ought to be represented, or it
would be reasonable to ask the prosecutor to be present and address the court
as to the relevant law.
(6) In the first of these
five cases, the court may invite the Attorney to make arrangements for the
advocate to be instructed on behalf of the department. In the second, the court
may grant the Attorney permission to intervene, in which case the advocate
instructed represents the Attorney. In neither case is the advocate an advocate
to the court.
(7) In the third case the
court may grant a litigant in person an adjournment to enable him or her to
seek free (pro bono) assistance. In doing so, the court should bear in mind
that it is likely to take longer to obtain free (pro bono) representation than
funded representation. In contrast to an advocate to the court, a free (pro
bono) legal representative will obtain his or her instructions from the
litigant and will represent the interests of that party. His or her role before
the court and duty to the court will be identical to that of any other
representative of the parties. Accordingly it will not be appropriate for the
court to take such a course where the type of assistance required is that
provided by an advocate to the court.
(8) In the fourth case
the prosecutor’s special duty is akin to an advocate to the court. In the fifth
case, in relation to appeals against sentence where the defendant is
represented, it may be preferable to request the attendance of the prosecutor,
who will be able to address the court on issues of fact and law. It would not
be proper for an advocate to the court to take instructions from the
prosecuting authority in relation to factual matters relating to the
prosecution. An advocate to the court should only be asked to address the court
as to the relevant law.
Making a request to the Attorney-General
(9) A request for an
advocate to the court should be made by the court as soon as convenient after
it is made aware of the point of law which requires the assistance of an
advocate to the court. The request should set out the circumstances which have
occurred, identifying the point of law upon which assistance is sought and the
nature of the assistance required. The court should consider whether it would
be sufficient for such assistance to be in writing in the form of submissions
as to the law, or whether the assistance should include oral submissions at the
hearing. The request should ordinarily be made in writing and be accompanied by
the papers necessary to enable the Attorney to reach a decision on the basis of
a proper understanding of the case.
(10) The Attorney will
decide whether it is appropriate to provide such assistance and, if so, the
form such assistance should take. Before reaching a decision he may seek
further information or assistance from the court. The Attorney will also ask
the court to keep under review the need for such assistance. Where the
circumstances which gave rise to the original request have changed, such that
the court may now anticipate hearing all relevant argument on the point of law
without the presence of an advocate to the court, either the court or the
Attorney may ask the advocate to the court to withdraw.
Requests to the Official Solicitor or
(11) A request for an
advocate to the court may be made to the Official Solicitor or CAFCASS (Legal
Services and Special Casework) where the issue is one in which their experience
of representing children and adults under disability gives rise to special
experience. The division of responsibility between them is outlined in Practice
Notes reported at  2 FLR 151 and  2 FLR 155.
(12) The procedure and
circumstances for requesting an advocate to the court to be appointed by the
Official Solicitor or CAFCASS are the same as those applying to requests to the
Attorney-General. In cases of extreme urgency, telephone requests may be made.
In some cases, the Official Solicitor himself will be appointed as advocate to
the court. He may be given directions by the court authorising him to obtain
documents, conduct investigations and enquiries and to advise the court. He may
appear by counsel or an in-house advocate.
LORD GOLDSMITH QC
THE LORD CHIEF JUSTICE
THE RIGHT HON THE LORD