WALES/ENGLAND – Family President clarifies when use of expert is ‘necessary’ in proceedings

The President of the Family Division has clarified when the use of an expert witness is ‘necessary’ under guidance he gave earlier this year.

In the case of Re H-L (A child), Sir James Munby, also made further remarks on case management, disclosure and the time that cases should take. 

The President highlighted in January this year the significantly more stringent test on the use of experts in family proceedings. This was after a new Part 25 (Experts and Assessors) was substituted on 31 January into the Family Procedure Rules.

The changes meant the test in Rule 25.1 for permission to put expert evidence before the court is whether it is “necessary” to assist the court to resolve the proceedings rather than whether it is “reasonably required”.

Now, in the Re H-L judgment, Sir James has said:

“1. In this appeal we have to decide the point left open in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250.

2. In Re TG, in which judgment was handed down on 22 January 2013, I drew attention to the important change to rule 25.1 of the Family Procedure Rules 2010 due to be implemented with effect from 31 January 2013. Whereas previously the test for permitting expert evidence to be adduced was whether it was “reasonably required to resolve the proceedings”, the test now is whether it is “necessary to assist the court to resolve the proceedings.” I said (para [30]):

“It is a matter for another day to determine what exactly is meant in this context by the word ‘necessary’, but clearly the new test is intended to be significantly more stringent than the old. The text of what is ‘necessary’ sets a hurdle which is, on any view, significantly higher that the old test of what is ‘reasonably required’.”

We now have to decide what is meant by ‘necessary.’

3. The short answer is that ‘necessary’ means necessary. It is, after all, an ordinary English word. It is a familiar expression nowadays in family law, not least because of the central role it plays, for example, in Article 8 of the European Convention and the wider Strasbourg jurisprudence. If elaboration is required, what precisely does it mean? That was a question considered, albeit in a rather different context, in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. This court said it “has a meaning 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.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

4. McFarlane LJ, whose judgment I have read in draft, has set out the facts giving rise to this appeal and explained why it was that, at the end of the hearing, we concluded that the appeal should, in part, be allowed, though only to the very limited extent he has indicated. I agree entirely with his conclusions and reasoning and therefore need add nothing to what he has said.

5. There are, however, some more general points that merit brief discussion. In Re TG I encouraged case management judges to apply appropriately vigorous and robust case management in family cases; I emphasised the very limited grounds upon which this court – indeed, I should add, any appellate court – can properly interfere with case management decisions; and I sought to reassure judges by pointing out how this court has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case management decisions. I take the opportunity to reiterate these important messages.

6. Inevitably there will be occasions when this court does nonetheless have to interfere with a case management decision. Such cases are few in number, not least when contrasted with the very large number of case management decisions being made, day in day out, by judges in family cases. This is as it ought to be. It shows the system working as it should. Recent examples include Re B (A Child) [2012] EWCA Civ 1742 and Re G-C (A Child) [2013] EWCA Civ 301. Neither of these cases lays down any new principles. Each is simply an application of well-established principles to the facts of the particular case. So too was Re F (A Child) [2013] EWCA Civ 656, where this court refused permission to appeal from a case management decision of a judge who had refused to direct the appointment of an expert in circumstances where all the parties were agreed that there should be an expert report. The principles to be applied are those set out in Re TG.

7. Returning to the facts of the present case, McFarlane LJ has referred to the fact that the only medical evidence that had been filed came from various treating clinicians and that no outside expert had been formally instructed in the proceedings. This is not a matter that featured large in argument, but it is worth reminding practitioners of the vital need to avoid blurring the important distinction between treating clinicians and experts: Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam), [2008] 2 FLR 1708, and Oldham Metropolitan Borough Council v GW and PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597.

8. McFarlane LJ has also referred to the circumstances in which, very late in the day, a critically important document was disclosed to the local authority. It is disturbing that this document, which had the effect that one aspect of the appeal fell away, came to light only during the hearing before us. There are perhaps two lessons here for the future. The first is that, when disclosure of medical records is being sought from a third party, an appropriate order of the court directed to the third party should be obtained at the earliest opportunity, rather than one of the parties (here, the local authority) being left to seek voluntary disclosure. The second is that more thought needs to be given than is often the case to an appropriately focused application for disclosure. Too often, applications for the disclosure of medical or police records seek the disclosure of everything, without any adequate thought being given to identifying the particular class or classes of documents – here, indeed, a particular document – whose disclosure is really needed.

9. The final matter relates to the imperative need for everyone, the Court of Appeal included, to deal with appeals from interlocutory case management decisions in family cases with the utmost despatch: see Re C (A Child) [2013] EWCA Civ 431, para [49]. In the present case the decision under challenge was on 27 February 2013. The fact-finding hearing was fixed for 16 April 2013. The appellant’s notice was not filed until 11 March 2013. Permission to appeal was given on 19 March 2013. It was possible to list the appeal for hearing, just in time, on 10 April 2013. Justice was done. The timetable fixed by the case management judge was not disturbed. But one cannot help recalling the well-known words of the Duke of Wellington.”


SOURCE: Local Government Lawyer

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