(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination."
11 D entertains apprehensions that Dr Milch is unsympathetic to her and may be biased against her. Both Mr and Mrs F and the Director-General would prefer that Dr Milch give a further assessment with respect to D, Mr and Mrs F, and the child, E. Ms Cleary, representing the interests of E, also expressed a preference for Dr Milch. The reality is that, having made an assessment of the relevant kind in late 2004, Dr Milch is, as an objective matter, well placed to re-visit the question by reference to the situation as it currently exists and to update his opinion. The respective attitudes I have mentioned make it necessary to address the question whether there is any substance in the apprehension on the part of D regarding Dr Milch to which I have referred.
12 The reservations of D regarding Dr Milch arise from events at the time of her visit to him in November 2004, that is, on the occasion when D, Mr and Mrs F and E all saw Dr Milch together. She refers first to contemporary notes of an employee of her solicitor who received two telephone calls from Dr Milch on the day in question. Dr Milch telephoned on the first occasion to say that D was running late for the appointment and that this meant that the assessment process was going to be disrupted. The employee's note concludes:
"My impression was that he was frustrated with the client being late as it obviously not only impacted on the child and this assessment but probably also disrupted other patients planned for the day. I was concerned about his approach and was left with the feeling that he was not necessarily very understanding of our client's position."
13 The second note refers to a telephone call received by the solicitor's employee from Dr Milch after he had seen the parties. Dr Milch reported having completed the assessment saying, according to the note, "timing made a significant difference" but "didn't affect his assessment".
14 The next aspect of the concerns of D concerning Dr Milch are set out in D's affidavit of 9 December 2005 (filed in the Court of Appeal) in which she recounts aspects of her attendance upon Dr Milch on the occasion in question. I will not go into all the details. It is sufficient to say that she reports various things as having happened in the course of the consultation which were not referred to in Dr Milch's report. That, one might think, is of itself not surprising: no professional could conceivably include in such a report every little thing that happened during the consultation. But D places emphasis on some of the things as potentially relevant to Dr Milch's assessment. Whether that is a correct characterisation it is not possible to say with any certainty; but the possibility is one that cannot be overlooked. The affidavit reads in part as follows:
"19. Throughout the interview Dr Milch spoke in a very rough way to me. He kept shaking his head at me and was not very kind to me.
20. Prior to the hearing of the matter I did not have a chance to tell my solicitors that I disputed the contents of Dr Milch's report. My solicitors did not have a chance to cross-examine about my instructions. I was admitted into Westmead Hospital on Monday 13 December 2004. I understand from my solicitor that this was the day they first obtained a copy of Dr Milch's report.
21. I was discharged from hospital on the afternoon of Monday 20 December which I understand was the last day of the hearing.
22. I have only raised this information with my solicitor now as my solicitor asked my view about Dr Milch preparing a further report from [sic] the court addressing the memorandum of Justice Hodgson dated 15 November 2005.
23. I would not be happy with Dr Milch preparing a further report for the court in this manner. I felt he did not like me and he was rude to me without reason. I believe that he had made up his mind about the matter before seeing me and my child."
15 Dr Milch was cross-examined before Palmer J. Mr Anderson appeared for D at the hearing. He was able to cross-examine Dr Milch on the matter raised in the solicitor's employee's notes. Dr Milch strenuously denied that the fact that D was late for the appointment affected his assessment in any way. Mr Anderson was unable to cross-examine Dr Milch on the matters raised in D's affidavit of 9 December 2005. The reasons are stated in the extract from the affidavit quoted above.
16 The third matter on which D relies comes from Dr Milch's cross-examination where he gave answers suggesting, it is submitted, that he took a negative view of D's parenting abilities because of the long period she had spent in harsh conditions in a refugee camp in Kenya, even though she had devoted efforts there to looking after young children.
17 There is not before me any application that any person be ordered to attend for examination by Dr Milch. The only questions for decision are those raised by the application of D which, of course, does not contemplate examination by Dr Milch. I have nevertheless come to the conclusion that, although there would be obvious advantages of continuity in having Dr Milch make a further assessment, the preferable course is that the task be undertaken by some other appropriately qualified medical practitioner.
18 I must say at once that I am not at all satisfied that Dr Milch has acted otherwise than in a wholly proper and professional way in relation to the earlier assessment. The fact remains that D has developed a mistrust of him. As I have said, she considers Dr Milch to have been insensitive and to have misunderstood her experience in the refugee camp; and she points also to aspects of the consultation in November 2004 which she considered significant but which found no place in Dr Milch's report. As I have also said, it may well be that, as an objective scientific matter, those matters were irrelevant to the conclusions reached and the reasons for them. But the reality is that, if any further assessment of the four relevant persons - D, Mr and Mrs F and E - is to be of value to the court, it must be an assessment in which all of them willingly and comprehensively co-operate. As things stand, there could be no confidence that D would co-operate in that way. One could imagine, in an abstract way, an order of the court compelling her to attend and to submit to the assessment, backed by all the machinery that is involved in the enforcement of court orders. But an approach of that kind, in a case such as this, would be, in my view, unthinkable. There are delicate matters of personal well-being at stake in these proceedings and it is far preferable that the orders the court makes be orders which do not entail deep-seated resistance on anyone's part.
19 I turn then to the question of the suitability of Dr Newman. She, as I have said, was D's treating psychiatrist. As the text of the orders sought shows, D would be content for Dr Newman to perform either of the envisaged assessments. All other parties are opposed to the idea that the court should require them to submit to assessment by Dr Newman. The reasons are, in essence, that Dr Newman, as D's treating psychiatrist, has an existing professional relationship with D and, as things stand, owes duties to D alone. It might be difficult, both professionally and as a matter of legal duty, for Dr Newman to detach herself sufficiently from the interests of her existing patient to give an opinion that has regard to the interests of all concerned and, most particularly of course, the interests if the child E. There is substance in that objection.
20 In these circumstances, I do not consider it appropriate to make an order requiring the persons concerned to submit themselves to assessment by Dr Newman. It is, of course, open to D to seek to tender evidence of Dr Newman in the usual way.
21 That leaves, by default, the proposition that some suitably qualified medical expert other than Dr Milch and Dr Newman should make an appropriate assessment of D, Mr and Mrs F and E and produce a report. All parties have indicated that if the decision of the court is such as to preclude both Dr Milch and Dr Newman, the role would appropriately be undertaken by Dr Robinson. I intend to make an order to that effect, provided that I have an appropriate indication from Dr Robinson of willingness to act, something that does not seem to be in the papers at this point, although the parties have indicated Dr Robinson's availability.
22 There is also a question about the precise definition of the function to be performed by the expert or, more precisely, the description of the assessment to be made. I am not sure that the description in the first order sought ("conducting an assessment and providing a report on the relationship between D, Mr and Mrs F and E") is sufficiently well defined. I would ask the parties to provide a more succinct agreed description when they furnish me with an indication of Dr Robinson's consent.
23 I turn now to the second aspect of the application before me. D seeks the following order:
"An order that D may provide to her experts documents or details in documents filed in or otherwise relevant to the proceedings on a confidential basis except documents or details in documents that tend to identify or reveal the parties' names, place of residence, financial information, financial records or employment details, any identifying details of the adoptive parents' referees, relatives or friends ."
24 This application is made having regard to s.180 of the Adoption Act 2000:
" Restriction on publication of identity of parties
(cf AC Act s 53)