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Expert Evidence

Document Cited authorities 12 Cited in Related
AuthorSafda Mahmood/Julie Doughty
Pages225-234
18 Expert Evidence

18.1 What is an expert witness?

An ‘expert witness’ has no specific legal definition. Many professionals style themselves as ‘expert witnesses’, but it is the court which makes the final decision as to who is accepted as an expert in a particular specialist field, in each individual case. The authors have, for example, seen a young, newly qualified nursery nurse treated by the court as an expert in the case of a particular child with whom she had worked intensively for a year. She would not have thought of claiming that status herself, but the court regarded her as an expert in that specific piece of work with that particular child. Other professionals might wish to claim expert status in their field of work, but the court may decide otherwise.

Note that section 13(8) of the CFA 2014 excludes certain types of evidence from the ambit of the formalities in obtaining expert evidence, so they are not subject to the restrictions set out in the section. These include any evidence given by a person who is a member of staff of a local authority, or of an authorised applicant. The purpose is to ensure that such evidence can be adduced without the need for prior permission through the Part 25 of the FPR 2010 procedure. Similarly, evidence given by officers of CAFCASS or CAFCASS Cymru, and any evidence provided in connection with determining the suitability of a child for adoption, is not subject to these restrictions either.

Experts are privileged in the eyes of the law – they are not restricted to evidence of fact and can give their opinion on any relevant matter in which they are appropriately qualified. Rule 25.2(1) of the FPR 2010 defines an ‘expert’ as a person who provides expert evidence for use in proceedings. Acceptance of a specialist as an expert, therefore, will vary according to the issues in each case, and in order to assess expertise, the court will expect that the expert will outline his or her qualifications and experience.

18.2 Choosing and instructing expert witnesses

The choice of the appropriate expert for a case is never an easy one, and the choice may be limited by availability and time frames. See para 18.6 for ideas derived from practice.

226 Child Care and Protection: Law and Practice

Part 25 of the FPR 2010 relates to experts and assessors, and in children proceedings, pursuant to rule 25.4, the provision relating to control of evidence in children proceedings is contained in section 13 of the CFA 2014.

The court may refuse permission to call an expert, but be aware that it may be argued that this may prejudice the right of the party to a fair trial under Article 6 of the ECHR, see the case of Elsholz v Germany [2002] 34 EHRR 58, [2000] 2 FLR 486. In the course of proceedings in the High Court, the court gave helpful guidance on the use of expert witnesses, see Re M (Minors) (Care Proceedings: Children’s Wishes) [1994] 1 FLR 749 and Re G (Minors) (Expert Witnesses) [1994] 2 FLR 291.

18.2.1 Funding issues and prior authority from the Legal Aid Agency to instruct expert witnesses

On 3 May 2012, Sir Nicholas Wall, the then President of the Family Division, gave judgment in the case of A Local Authority v DS, DI and DS [2012] EWHC 1442 (Fam). The judgment was handed down in private and was signed by the President, with leave for it to be reported. In that judgment, His Lordship gave guidance on the issue of prior authority from the Legal Services Commission (LSC) (the name by which the Legal Aid Agency, was known at that time) to instruct expert witnesses in publicly funded family proceedings. The judgment is worth reading. In particular, consider [38] of the judgment:

For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

The President gave guidance on the wording of the court order, taken from the LSC regulations, particularly if the expert is to be paid above what the funding order allowed for. The President set out that any application for prior authority needs to be made as soon as possible, and that the LSC needs to deal with applications promptly, and any urgent matter to be considered should be clearly marked.

Subsequently, the then President of the Family...

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