Re G (Children's Cases: Instruction of Experts)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
Wall, J
Child case – expert evidence – practice to be followed when party wished to call expert evidence.
Evidence – children's cases – practice to be followed when party wished to call expert evidence.
In children's cases the court had a duty to analyse the evidence and decide the areas in which expert evidence was necessary; and the court had both the power and the duty to limit expert evidence to given categories of expertise and to specify the number of experts to be called. Further, the court should be proactive in laying down a timetable for the filing of expert evidence, in arranging for the dissemination of reports, and in giving directions for experts to consider.
In the present case the mother was given leave to disclose medical records to the "experts" she proposed to instruct. The direction giving leave did not specify any particular expert or area of expertise nor had the mother told the court that she proposed to instruct six experts. When giving leave to show papers to experts the court should have in mind the principle that no party should be inhibited or disadvantaged in the presentation of his case by unnecessary restrictions placed on the grant of such leave. However, the overriding principle was that the confidentiality which required that leave be sought before papers were disclosed was the confidentiality of the court. It was the duty of the court not only to ensure a fair trial but also to exercise control over the evidence it permitted to be adduced in the interests both of justice and the child or children with whom it was concerned.
Certain propositions governed the grant of leave and consequential directions for expert evidence in children's cases. Generalized orders giving such leave should never be made; the expert or area of expertise should be identified. The advocates had a positive duty to place all relevant information before the court. The court had a positive duty to inquire into that information: in particular as to the category of expert evidence sought, its relevance, whether or not the expert evidence could be obtained by the joint instruction of one expert by two or more parties, or whether expert evidence could properly be adduced by only one party. Where the court granted leave it should give directions as to the time scale for production of expert evidence, the disclosure of written reports, discussions between experts, and the filing of further evidence relating to areas of agreement or
disagreement; and where this could not be done at that time the court should set a date for a subsequent directions appointment when those directions could be given. Time estimates for the evidence of expert witnesses should be considered as stated in Re MD and TD (Children's Cases: Time Estimates)[1994] 2 FCR 3. In care cases, where the local authority wished to carry out an assessment the court should specify the period of the assessment and the date by which evidence of the outcome was to be filed and fix a directions appointment for a date immediately after completion of the assessment. At that directions appointment, thought should be given as to what expert and other evidence was required. A date for the final hearing should be fixed as early as possible.
Statutory provisions considered:Children Act 1989, s 37.
RSC Ord 38 rr 4 and 36.
Cases referred to in judgment:M (Minors) (Care Proceedings: Conflict of Children's Wishes: Instruction of Expert Witnesses), Re[1994] 1 FCR 866.
MD and TD (Minors) (Children's Cases: Time Estimates), Re [1994] 2 FCR 95.
The advocates instructed by the parties are not named in the interests of protecting the identity of the children.
Judgment Mr Justice Wall.In Re M (Minors) (Care Proceedings: Conflict of Children's Wishes: Instruction of Expert Witnesses)[1994] 1 FCR 866 I set out my thoughts on the manner in which expert witnesses should be instructed in children's proceedings. I stated inter alia the following:
(1) experts should always be invited to confer with each other pre-trial in an attempt to reach agreement or limit the issues; and
(2) careful cooperative planning between the legal advisors to the different parties at an early stage in the preparation for trial should be undertaken to ensure the experts' availability and that they can be called to give evidence in a logical sequence.
I also emphasized the non-adversarial nature of children's proceedings and stressed the vital importance of expert evidence in assisting the Judge to reach the right solutions. I concluded that judgment by stating:
"It is preferable that parents and other litigants approach cases with as many of the factual issues as possible resolved, where such resolution is possible pre-trial. Efficient preparation and presentation of medical evidence is in my judgment an important part of that process."
In Re MD and TD (Minors) (Children's Cases: Time Estimates) [1994] 2 FCR 95 I dealt with the procedure for giving estimates of time in children's cases. In
the course of that judgment I emphasized the importance of directions appointments and said inter alia that where medical experts are involved there should be careful co-operative planning by all the lawyers involved in a case to ensure that sufficient time is set aside for their evidence.
My judgments in Re M (Minors) (above) and Re MD and TD (Minors) (above) were based upon a number of assumptions. Principal amongst them were the propositions (a) that not only is leave required before the papers in a public or private law Children Act case can be shown to an expert, but also (b) that the court has a proactive role in the grant of leave. Thus in my judgment the court in each case:
(1) has the duty to analyse the evidence and decide the areas in which expert evidence is necessary and
(2) both the power and the duty:
(a) to limit expert evidence to given categories of expertise and
(b) to specify the numbers of experts to be called.
A further assumption behind both judgments was that the...
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