Expert Witnesses

In some family cases it may be necessary to call expert evidence. As a general rule, however, the use of expert witnesses is discouraged unless it can be shown to be strictly necessary.

A Practice Direction issued by the President of the Family Division in January 1995 states that parties must use their best endeavours:

(a) to confine the issues and the evidence called to what is reasonably considered to be essential for the proper presentation of their case;

(b) to reduce or eliminate issues for expert evidence; and

(c) in advance of the hearing to agree which are the issues or the main issues.

Joint instructions to one expert are encouraged (especially in financial matters), but it should be remembered that an expert instructed jointly cannot be cross-examined. If an expert witness is instructed jointly then it is important that the parties agree the division of fees beforehand.

In child related cases expert evidence on medical, psychiatric or psychological matters may be required. An expert instructed in such cases must adhere to specific guidelines and his/her sole concern must be the welfare of the child (rather than the interests of the either party). In Children Act 1989 proceedings the report of the expert witness will not generally be protected by professional privilege and will be made available to both parties.

Leave of the court will be required before a child can be examined by an expert witness or before any papers are disclosed. Where a Guardian ad Litem has been appointed it is usual for the GAL to commission any report, though the parents may obtain further written reports based on the paperwork (rather than any further examination of the child).

When applying for leave to instruct or disclose papers to an expert witness it is necessary to identify the area of expertise required, and it may be advisable to identify a particular expert - informal approaches in advance of the application can help in this respect. Expert witnesses are invariably busy people so you should make sure that the proposed expert will be able to produce a report in time and be available for the court hearing. You should also get an idea of the likely fee. If leave is granted then the court will give directions on timescale and disclosure of the report.

Guidelines covering the appointment of expert witnesses and their involvement in cases concerning children are found in the following cases:

Re M (Minors)(Care Proceedings: Child's Wishes)[1994] 1 FLR 749
Re G (Minors)(Medical Experts)[1994] 2 FLR 291
Re R (a Minor)(Legal Professional Privilege)(Disclosure of Material)[1994] FCR 225
Re AB (Child Abuse: Expert Witnesses)[1995] 1 FLR 181
Re C (Expert Evidence: Disclosure: Practice)[1995] 1 FLR 204

Other areas of family law in which expert witnesses may be necessary include valuation of property, pensions, insurance or matters involving foreign law.

Updated 29-02-2000