New approach to expert evidence in family proceedings

|Media Release

New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.

Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.

These changes 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 rules on experts were drawn up by a statutory committee of judges and lawyers and agreed by the Lord Chancellor. They will be supported by new Practice Directions issued by the Lord Chief Justice[, Lord Judge].

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.

For further information contact Judicial Press Office Stephen.ward@judiciary.gsi.gov.uk 020 7947 6438

Notes to Editors

1. Family Procedure Rules section of the Ministry of Justice website.

2. Please see the President of the Family Division’s judgment in Re TG (A Child)[2013] EWCA Civ 5 where he set out the new approach to expert evidence in the family courts.

3. A set of short Practice Directions (25A to F) replace what was a single Practice Direction relating to expert evidence. The new Practice Directions deal with particular aspects of the process of obtaining, or using, expert evidence in different types of family proceedings.

4. The Family Justice Modernisation Programme including the final report by Mr Justice Ryder

5. For the membership of the Family Procedure Rule Committee please see the link at http://www.justice.gov.uk/about/moj/advisory-groups/family-procedure-rule-committee

6. Practice directions and amendments: Family Division Procedure Rules 2010 – Consolidated 4 December 2012

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