Instructing an expert in children proceedings

Last month this column considered the instruction of experts in financial remedy proceedings. This month it focuses on children proceedings and will highlight some of the key differences.

Once again, the rules are set out in Part 25 of the Family Procedure Rules and its accompanying Practice Directions, and the President’s Memorandum on Experts in the Family Court, dated 11 October 2021.

It is important to note that the instruction of experts in Sch 1 proceedings fall within the rules governing children proceedings, and not financial proceedings, even though the proceedings themselves are more analogous to financial proceedings (see PD 25C, para 1.2). This is because the proceedings themselves relate wholly or mainly to the maintenance or upbringing of a minor.

Expert’s duties

As with financial proceedings, the duty of an expert is to help the court on matters within their expertise. This duty overrides any obligation to the person who instructs or pays them (FPR, r 25.3). It is also important to note that instructions sent to an expert are not privileged (FPR, r 25.14(3)), whether the expert is instructed on a joint or sole basis.

The court’s power to control expert evidence

Pursuant to the Children and Families Act 2014 (“CFA 2014”) s 13(6), expert evidence will only be permitted in children proceedings “if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.” Sir James Munby P of Re: H L (A Child) [2013] EWCA Civ 655 defined “necessary” as: “Lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”.

Section 13(7) of the CFA 2014 sets out the factors to be considered by the court when deciding whether to give permission, which includes any impact which giving permission would be likely to have on the welfare of the children concerned, including any impact which any examination or other assessment would be likely to have.

An experts’ qualifications

An expert witness can give opinion evidence “on any relevant matter on which he is qualified to give expert evidence” (Civil Evidence Act 1972, s 3). However, there is no definition of “qualified” in CEA 1972.

Practice Direction 25B, para 4.1(aa) and the annex it refers to requires an expert to comply with certain standards and this includes a requirement to have been active in the area of work, to have sufficient experience of the issues, and if their professional practice was regulated by a UK statutory body, that they were in possession of a current licence. The appendices to PD 25B include details of the applicable regulators to the various UK health and social care professions, and examples of professional bodies / associations relating to non-statutorily regulated work.

The issue of an experts’ qualifications was addressed by the President in his Memorandum of 4 October 2021 on Experts in the Family Court. The President made plain that the family court will adopt a rigorous approach to ensure experts are properly qualified. Pseudo-science, which is not based on any established body of knowledge, will be inadmissible.

Whilst certain professions have a protected title, which may only be used by those who are validly registered, other professions are not protected. For example, the term “psychologist” is not protected and may be used by any individual whether they are registered or not. However, “clinical psychologist” is a protected title which may only be used by those who are validly registered. The recent case of Re C (Parental Alienation; Instruction of Expert) [2023] EWHC 345 highlighted how the “open-house” nature of the term psychologist is unhelpful and potentially confusing. It is important that practitioners understand the need for clarity regarding the expertise of those who describe themselves as a psychologist or any other unprotected title.

Following that case, the President has suggested that in every case the court should identify whether a psychologist who is a proposed expert is registered with the Health and Care Professions Council (“HCPC”) and has recommended that if the court does allow the instruction of an unregistered expert, they should give a short judgment as to why it is appropriate to instruct them.

Single joint experts

As with financial remedy proceedings, wherever possible, expert evidence should be provided by a single joint expert (PD 25C, para 2.1). Where the parties cannot agree who the single joint expert should be, the court has the power to choose the expert from a list prepared by the parties. Parties are firmly discouraged from seeking permission to instruct their own expert in place of a single joint expert because of the costs implications (PD 25C, para 2.4).

Procedure

The rules require the parties to apply for the court’s permission to adduce expert evidence as soon as it becomes apparent that it is necessary to make it and no later than the First Hearing Dispute Resolution Appointment (FPR, r 25.6).

Before the application is made, the potential experts must be given the information set out in PD 25C, para 3.2, and the solicitor must obtain from the expert the information set out in para 8.1 pf PD 25B, including that the work is within the expert’s expertise, the expert is available to do the work within the relevant timescale and the expert’s costs. The process of obtaining this information should therefore be started as soon as possible.

For the purposes of the law of contempt of court, information relating to children proceedings (whether or not contained in a document filed with the court or recorded in any form) may be communicated only to an expert whose instruction by a party has been permitted by the court (see FPR, rr 12.73(1)(a)(vii) and 14.14(c)(vii)) as children proceedings are confidential. However, the party seeking permission needs to make the enquiries of the expert referred to above in order to provide the court with information to enable it to decide whether to give permission. The reality is therefore that sufficient information about the case will need to be given to the potential expert to decide whether or not he or she is in a position to accept instructions. Such preliminary enquiries, and the disclosure of information about the case which is a necessary part of such enquiries, will not require the court’s permission and will not amount to a contempt of court (see PD 25C, para 3.3).

The application must be made in Form C2 with an accompanying draft order (other than for Schedule 1 proceedings where the application is made in Form D11). The application must include the information specified in FPR, r 25.7(2)(a) and (3), and PD 25C, para 3.10, which includes:

• the discipline, qualifications and expertise of the expert (by way of CV where possible),
• the expert’s availability to undertake the work,
• the timetable for the report,
• the responsibility for instruction,
• whether the expert evidence canproperly be obtained by only one party (for example, on behalf of the child),
• why the expert evidence proposed cannot properly be given by an officer of the service, Welsh family proceedings officer or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings,
• the likely cost of the report on an hourly or other charging basis,
• the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid; and, if applicable, whether public funding has been approved.

The draft order must set out the matters specified in PD 25C, para 3.11.

Letter of instruction

If the application is successful, PD 25C, para 4.1 sets out what must be included in the letter of instruction. Annex A to PD 25C includes a number of suggested questions to be included in letters of instruction to child mental health professionals or paediatricians and other questions to be put to adult psychiatrists instructed in children proceedings.

When the court gives directions for the appointment of an SJE, the letter of instruction should be joint unless the court directs otherwise (FPR, r 25.12(1)). Where the wording cannot be agreed, a written request can be made for the court to consider it (PD 25C, para 6.1). The court will settle the letter of instruction, usually without a hearing to avoid delay.

Expert’s report

There is a general requirement for expert evidence to be given by way of a written report (FPR, r 25.9(1). The required contents of the report are detailed in PD 25B, para 9.1 which also requires the report to be verified by a statement of truth in a specified form.

FPR, r 25.10 allows a party to put written questions to an expert. Unless the court directs otherwise, the questions may be put once only, must be put within ten days from the service of the expert’s report, and must be for the purpose of clarification only. The questions must also be sent to the other party. If an expert does not reply to the questions, then the court may direct that the expert’s evidence may not be relied on. If an expert considers the questions to be disproportionate, they can seek directions from the court about whether or not they should answer them. The expert’s answers are treated as part of the report.

Meetings between experts

If there is more than one expert, then it is standard practice for the court to direct that the experts should meet after their reports have been served (although such a meeting can happen at any stage) and that they should then prepare a schedule of agreement and disagreement (FPR, r 25.16). This meeting should take place within 15 business days after the reports have been filed and served.

The final hearing

Expert evidence is given in a written report unless the court directs otherwise. Therefore, the court will not direct an expert to attend a hearing unless it is necessary to do so “in the interests of justice”. (FPR, r 25.9.) However, if there are large areas of disagreement, and it is therefore considered necessary, PD 25B, paras 10.1 and 10.2 set out the arrangements that must be made.

After the final hearing

Finally, within 10 working days after the final hearing, the solicitor instructing the expert must inform the expert in writing of the outcome of the case, and of the use made by the court of the expert’s opinion. They must send the expert, within ten days of them receiving a copy of the court’s final order, and any transcript of the court’s decision (FPR, r 25.19).

As demonstrated, although the structure of the rules is broadly the same, there are some key differences between the rules that apply to experts in children proceedings and those that apply in financial proceedings. Early consideration of the expert evidence that may be required is key, as is identification of the appropriate expert.

Please note this content was originally published in the Family Law Journal. May 2023 edition, best practice section.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2023