Re C (Child Cases: Evidence and Disclosure)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
CAZALET, J
Child cases – evidence – guidelines for directions to be given when seeking expert evidence.
Evidence – child cases – obtaining expert evidence – guideline as to directions to be given and procedure to be followed by the experts in presenting their evidence.
Local authority – care proceedings – duty of authority to disclose all relevant information not protected by public interest immunity – authority to inform parties of relevant but protected information.
Expert evidence(1) In child cases generalized orders for giving leave for expert evidence should never be made; the expert or area of expertise should be identified. As part of the process for granting or refusing leave either for the child to be examined or for papers in the case to be shown to an expert, the advocates had a positive duty to place all relevant information before the court and the court had a positive duty to inquire into that information. Where the court granted leave for papers to be shown to a particular expert the court should invariably go on to give directions as to time-scale, the disclosure of any written expert report to the parties and other experts, and the filing of further evidence. Where it was impracticable to give those directions at the time that leave was granted, the court should set a date for such directions to be given.
Observations of Wall, J in Re G (Children's Cases: Instruction of Experts)[1994] 2 FCR 106 endorsed.
(2) Where a number of experts were instructed, each expert should be expressly required to hold discussions with other experts in the same field and then to set out in writing prior to the trial the areas of agreement or dispute. It was important that the letter of instruction to each expert should be disclosed to the other parties so that, if competing expert opinions were given, it should be immediately apparent whether this had occurred because each expert was advising upon a different set of facts. If there were factual issues between the parties each expert should normally be asked to give an opinion on each set of competing facts. It might be helpful for a co-ordinator, normally the guardian ad litem or the local authority, to collate the expert reports and to prepare a schedule for the court of the areas of agreement and dispute.
(3) Any party proposing to apply for leave to instruct an expert should give the other parties and the court a written explanation of the area of expertise of the proposed expert and the reasons as to why the court should grant leave. Also the party should first ascertain the availability of the expert for the purpose of giving evidence.
Directions(4) Directions should be given to ensure that each letter of instruction indicated that the expert was expected to prepare, in discussion with the other experts, a joint document setting out areas of agreement and disagreement. Further, so far as letters of instruction and documents sent to experts were concerned, each party should keep the other parties and his own expert fully informed. Experts' reports should be required to be served by a specific date and, generally, a clear timetable should be stated.
Duty of Disclosure(5) A local authority who brought care proceedings had a duty to disclose all relevant information in their possession or power, excluding that protected by public interest immunity. This duty required the local authority to produce not only documents which supported their case but also, in the interests of the child and of justice, documents which might modify or cast doubt on their case: in particular documents which actually helped the case of an opposing party. If documents were apparently relevant but appeared to be protected from disclosure by public interest immunity, the local authority should draw the attention of the other parties' legal advisers and the guardian ad litem to the existence of the documents and invite application to the court if disclosure was required.
(6) In all cases it was particularly important that the local authority should draw the guardian ad litem's attention to any matters of concern within the documents. Further, if in the course of inspecting the social services files under s 32 of the Children Act 1989 the guardian ad litem came upon records which he believed to be relevant but which were not likely to be disclosed by the local authority he should invite the local authority to disclose the documents and if they refused he should seek the court's directions.
Statutory provisions referred to:Children Act 1989, s 42.
Family Proceedings Rules 1991, r 4.14(2)(e) and (f).
Family Proceedings Courts (Children Act 1989) Rules 1991, r 14(2)(e) and (f).
Cases referred to in judgment:C and L (Child Abuse: Evidence), Re [1991] FCR 351; sub nom Re A (Child Abuse: Guidelines) [1991] 1 WLR 1026; [1991] 1 All ER 153.
D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 2 WLR 210; [1977] 1 All ER 589.
Evans v Chief Constable of Surrey [1988] QB 588; [1988] 3 WLR 127; [1989] 2 All ER 594.
J (Child Abuse: Expert Evidence), Re [1991] FCR 193.
G (Children's Cases: Instruction of Experts), Re[1994] 2 FCR 106.
M (Social Work Records: Disclosure), Re [1990] FCR 485.
Oxfordshire County Council v M[1994] 1 FCR 753; [1994] 2 WLR 393; [1994] 2 All ER 269.
R v Hampshire County Council, ex parte K [1990] FCR 545; [1990] 2 QB 71; [1990] 2 WLR 649; [1990] 2 All ER 129.
Stephen Cobb for the local authority.
Janet Waddicor for the first respondent.
Eleanor Platt, QC...
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