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New rules on instructing experts in family courts

31 January 2013

The Judicial Office has announced new rules on instructing experts in family courts, which aim to reduce the number of expert witnesses who have to give evidence.

The new rules and practice direction, which come into force on 31 January 2013, change the threshold for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.

In children proceedings the same test applies to permission to instruct an expert and for a child to be examined for the purpose of providing expert evidence.

In reaching a decision on whether to grant permission, the court will consider:

  • whether the evidence could be provided by another source, such as one of the parties or professionals already involved in the case
  • the issues to be addressed by the expert evidence and the questions to be put to the expert; and
  • the cost and impact on the court timetable of obtaining the evidence.

These changes will facilitate the court in streamlining case management in cases were experts are needed and stem from the recommendations of the independently chaired Family Justice Review which reported in November 2011. They also fit well with the judicial proposals on the modernisation of family justice published by Mr Justice Ryder and endorsed by the Lord Chief Justice, Lord Judge, last summer.

The President of the Family Division, Sir James Munby, said:

“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”

“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.

“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.

In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.

The key changes to the existing Part 25 include:

  • a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
  • a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
  • in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.