The attendance of experts in family proceedings

What was the legal issue in A Local Authority v X (Attendance of Experts) [2025] EWFC 137 (Mr Justice MacDonald)?

This was an application in care proceedings pursuant to FPR 2010 r.25.9(2) for a direction that single joint experts attend to give oral evidence at trial, on the grounds it is necessary for them to do so in the interests of justice.

The judgment provides a useful, and straightforward, explanation of when parties shall be allowed to call expert witnesses to give evidence at trial in Family proceedings. MacDonald J further provides helpful commentary on the extent to which parties can test expert evidence without calling oral evidence, and examples of when fairness will demand cross-examination of an expert witness.

What is the relevant law?

MacDonald J outlines the relevant law in paragraphs [12]-[17] of his judgment. S.13 of the Children and Families Act 2014 controls the use of expert evidence in children proceedings. It states:

13 Control of expert evidence, and of assessments, in children Proceedings

(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings.

(2) Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible.

(3) A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings.

(4) Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings
unless the court rules that it is admissible.

(5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.

(6) The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

(7) When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to—

(a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who wouldbe examined or otherwise assessed,

(b) the issues to which the expert evidence would relate,

(c) the questions which the court would require the expert to answer,

(d) what other expert evidence is available (whether obtained before or after the start of proceedings),

(e) whether evidence could be given by another person on the matters on which the expert would give evidence,

(f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,

(g) the cost of the expert evidence, and

(h) any matters prescribed by Family Procedure Rules.

FPR 2010 r.25.9 states:

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

MacDonald J further referred to FPR Part 25.10 which provides the procedural framework for putting written questions to expert witnesses, and FPR r.25.16 which permits the Court, at any stage, to direct a discussion between experts (usually referred to as an experts meeting).

What did the Judge decide?

1. C2 Application Necessary

MacDonald J confirmed that an application pursuant to FPR r.25.9 will always need to be made via a C2 application, as opposed to informal channels, such as a written request within an email. The C2 application must set out the reasons why it is said the attendance on experts to give evidence is considered necessary in the interests of justice.

MacDonald J reasoned that, due to experts only ever attending to give evidence where the Court has given permission, it is proper that any request be made formally so that all parties and the Court are put on notice of such a request and the reasons for it. This is despite the FPR not expressly providing for a separate application to be made.

MacDonald J further stated this approach supports the ‘sound administration of justice’ by avoiding the ‘caustic effect… of large numbers of last minute emails arriving in the Inbox of the already overburdened judge’s clerk or judge’ [23]. It is interesting to note that the Court’s need to be able to manage its caseload effectively seems to be a significant factor in a formal application being required.

2. Key Finding: No Gloss on FPR r.25.9(2)

MacDonald J endorsed the approach of Re M (Intermediaries), and confirmed there is no gloss to FPR r.25.9(2) at [24]:

‘…As was made clear by the Court of Appeal in Re M (Intermediaries), where a test of necessity is set out in the rules, there is “no warrant for overlaying the test of necessity with concepts of rarity or exceptionality”. I accept the submission of the parents that the decision of the Court of Appeal in Re M (Intermediaries) articulates a principle applicable to the interpretation of FPR r.25.9(2). It would not be appropriate to add a gloss of rarity or exceptionality to the test of necessity set out in FPR r.25.9(2). In the circumstances, whilst by definition a direction for the attendance of an expert pursuant to FPR r.25.9(2) will be an exception to the general rule set out in r.25.9(1), there is no test of exceptionality…’ (my emphasis)

MacDonald J makes clear at [25] that the approach of the Court when deciding whether to allow an application for oral evidence of an expert is a straightforward one, there is no higher bar than necessity, and each case will turn on its own facts:

‘In an effort to illustrate necessity in this case of the attendance of the experts, the parents placed before the court a list of some sixty-eight case in which, they submit, the attendance and cross examination of the jointly instructed expert witnesses resulted in a different outcome to that sought by the applicant local authorities. Without wishing to denigrate the industry of leading and junior counsel, the fact that in a number of other cases the court has permitted the attendance of jointly instructed experts for cross examination, and their attendance is said to have had a material effect on the outcome in those cases, is not relevant to the determination of an individual application under FPR 25.9(2). That application will turn on the specific facts of the case in which it is made, having regard to the expert evidence in that case. Further, in so far as the parents submit that the fact there are “a mass of cases” in which the court has permitted the attendance of experts renders the non-attendance of experts for cross examination an exceptional course in family proceedings, as the parties themselves submit and for the reasons I have given, FPR r.25.9(2) contains no test of exceptionality. In the circumstances, the proposition that the court should approach applications under FPR 25.9(2) from the position that the non-attendance of experts at the hearing is exceptional must be as objectionable as the proposition that the court should approach applications under FPR 25.9(2) from the position that the attendance of experts at the hearing is exceptional. The test in each case is whether, on the facts of the case in question, the attendance of the experts at the hearing is necessary in the interests of justice.’ (my emphasis)

3. ‘Gravity of proceedings’ cannot be a standalone reason for allowing an application under FPR r.25.9(2)

The applicants sought to argue that the ‘gravity of proceedings’, and the interference with parties’ ECHR Article 8 rights meant that the necessity test pursuant to FPR r.25.9(2) must be fulfilled by the nature of proceedings alone.

MacDonald J acknowledged that public law family proceedings are of the utmost importance to the subject child and their parent, but held that it was unlikely for the gravity of proceedings in and of themselves to render the attendance of experts necessary in the interests of justice. MacDonald J unsurprisingly observed at [30] that:

‘If these matters were capable in themselves of necessitating the attendance of experts in the interests of justice, then permission would require to be granted in every set of proceedings under Part IV of the Children Act 1989 in which expert evidence is adduced.’

MacDonald J went on to give examples of the considerations the Court will have regard to when determining an application under FPR r.25.9(2) at [32]:

‘When deciding whether it is necessary in the interests of justice for the expert to attend the hearing, the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein will not be without relevance. However, whilst these may be factors to be taken into account depending on the facts of an individual case, the question of whether it is necessary in the interests of justice for the experts to attend the hearing will turn, primarily, on the content of expert evidence in question, considered in the context of the Overriding Objective in FPR Part 1 and the provisions of FPR Part 25, the importance in certain cases of the role of challenging evidence to ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, rather than on general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se.’

Whilst not entirely discounting the gravity of family proceedings as a relevant factor when determining an application pursuant to FPR r.25.9(2), the judgment confirms this is just one consideration to be reflected upon amongst a host of other issues.

4. A holistic approach to FPR 25

Having set out the straightforward test, MacDonald J stated that the Court must determine applications pursuant to FPR 25.9(2) holistically, bearing in mind the provisions of FPR Part 25 as a whole. Consideration should be given to the rules which allow for the putting of written questions to experts, as well as the Court’s power to call an experts meeting; it may be that areas of agreement and disagreement can be defined and refined without the need for in person attendance at Court:

‘The parents submit that the terms of FPR 2010 r.25.10 reinforce the need for the expert to attend in circumstances where FPR 2010 r. 25.10(2)(d) limits questions to those of clarification, the FPR 2010 not providing for cross-examination in writing.

However, the requirement in FPR 2010 r.25.10(2)(d) that questions must be for the purpose only of clarification of the report is subject to the power of the court in FPR 2010 r.25.10(2) to direct otherwise.

Within the context of the similar provision in CPR r.35.6, in Mutch v Allen [2001] EWCA Civ 76 endorsed [sic] the asking of questions in civil proceedings going beyond clarification, and encompassing questions that would also be legitimately put in cross-examination, where to do so will assist in resolving issues in accordance with the Overriding Objective and will cut down the need for attendance of experts.’ [35]

5. Does fairness require experts to be cross-examined at trial?

The learned Judge spent a significant portion of his judgment considering the role of challenging evidence in ensuring a fair hearing, and the relationship between fairness and necessity per FPR r.25.9(2). MacDonald J considered that in certain cases the ability to cross-examine a witness in person may be considered necessary in the interests of justice in accordance with the rule.

Whilst acknowledging that there is no right under Article 6 ECHR in proceedings in the Family Court to cross-examine a witness, it was observed that the court’s case management powers must be exercised in a manner consistent with the parties’ right to a fair trial. MacDonald J cited the Court of Appeal case Re S-W (Children) [2014] EWCA Civ 27, affirming that:

‘the court’s powers under FPR 2010 to control and exclude evidence must be exercised so as to ensure that the parties are not “denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome”’ [38].

Against this, MacDonald J confirmed that whilst the general rule is that a party is required to challenge by cross-examination the evidence of any witness on a material point which that party wishes to submit should not be accepted by the court, this is not a rigid rule. Therefore, it will not always be necessary in the interests of justice to cross-examine an expert witness.

MacDonald J referred to Re B (A Child), where Lord Justice Peter Jackson, citing the decision of the Privy Council in Chen v Ng, held that in assessing fairness, it is substance, not form, which is important. Fairness can be achieved in a range of ways, and:

‘…there will be cases in which it will be pointless to put formal challenges to a witness who knows perfectly well that his or her evidence is disputed, and where the challenge could in reality go no further than “I put it to you that you are lying”’. [41]

Likewise, MacDonald J rejected the applicants’ argument that the mere fact a parent disagreed with an expert opinion entitled them to have their view tested in oral evidence. Although he accepted a parent’s wish for the expert to be cross-examined may be relevant when evaluating the interests of justice for the purposes of FPR r.25.9(2), he considered it unlikely to be capable of determining the question of necessity on its own. [52]

6. General Principles

MacDonald J provided a non-exhaustive list of questions the Court may consider when assessing an application under FPR 25.9(2) at [56]; these include the extent to which the expert evidence is relied upon, the extent to which the evidence is disputed, and whether the parts of the expert evidence that are disputed are central to determination of the issues the court must decide.

MacDonald J further set out general principles that will apply in each case court is required to make decision under FPR 25.9(2) at [58], emphasising again the central question of necessity in each case. MacDonald J agreed with applicant counsel that, ‘…the case management decision as to whether it is necessary in the interests of justice for the expert to attend cannot be allowed to become a dress rehearsal of the forensic examination of the expert evidence at the hearing’ [54] and emphasised again that each application falls to be determined on its own unique set of facts. [55]

Conclusion

This judgment serves as a reminder of the simplicity of the test contained in FPR 25.9(2); although there is no automatic right to call an expert to give oral evidence at trial, likewise there is no need to demonstrate an exceptional reason as to why their evidence should be tested in person.

Rosie Muncer is a pupil barrister at Park Square Chambers.