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Tougher test on use of experts in family cases comes into force

A significantly more stringent test on the use of expert witnesses in family proceedings has come into force.

From 31 January, a new Part 25 (Experts and Assessors) has been substituted into the Family Procedure Rules.

The changes, which apply to existing proceedings as well as those started after yesterday, mean 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”.

In the recent case of Re TG (A Child) [2013] EWCA Civ 5, the President of the Family Division, Sir James Munby, said: “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.

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“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’.”

However, Sir James stressed that when applying the new test, the case management judge would have to have regard to all the circumstances of the case.

Other changes to Part 25 include a list of factors to which the court is to have regard in reaching a decision whether to give permission.

According to the Ministry of Justice, these include the impact on the timetable and conduct of the proceedings and the cost of the expert evidence.

It said: “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.”

The changes will also require, in proceedings involving children, an application for permission to instruct an expert to state the questions which the expert is required to answer, Where permission is granted, the court will give directions specifying the questions that are to be put to the expert, the MoJ said.

A further amendment sees Rule 1.4(2) recast to provide that active case management includes “controlling the use of expert evidence”.

The changes follow recommendations from the Family Justice Review and the work on modernisation of family justice led by Mr Justice Ryder.

The rules on experts were drawn up by a statutory committee of judges and lawyers and agreed by the Lord Chancellor. New Practice Directions will be issued by the Lord Chief Justice, Lord Judge.

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.”

Lord McNally, Family Justice Minister, said: “We are taking action to tackle the unacceptable delays in our family courts.

“The number of expert reports being commissioned at the moment is far beyond what is actually needed to make a considered decision - and is causing delays which can ultimately harm children. The new rules mean expert evidence will only be used where necessary and reports will be commissioned more sensibly and sparingly.”

The Law Society has produced a suite of templates for practitioners. More information can be obtained here.

Philip Hoult

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