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Rule 25.1 and the President's Guidance in H-L - A 'necessary' evil?

Christopher Rank, barrister, of Cornwall Street Chambers considers expert evidence, rule 25.1 of the FPR and The President’s recent guidance in Re H-L (A Child)

Christopher Rank, barrister, Cornwall Street Chambers

Christopher Rank
, barrister, Cornwall Street Chambers

Family lawyers everywhere are bracing themselves against the tsunami of changes to law and practice which cover virtually the whole spectrum of family work, starting with the availability of funding, and ending with a litigation timetable under which in both private and public law work, the outcome is expected to be determined within 26 weeks from the issue of proceedings.

This changing landscape has been evident for years, witnessed by the increasingly clinical approach to case management and the unstoppable momentum generated by a specialised and well-trained judiciary, pro-actively driving cases forwards in the interests of a timeous outcome for all children.

A main objective of these reforms is to cut out delay wherever possible, and at the same time to reduce significantly legal costs. Those twin objectives are underpinned by the overriding objective, provided for at Family Proceedings Rules Part 12, and P.D. 12A. This is not an optional consideration:

'…the Court must seek to give effect to the overriding objective when it...exercises the case management powers…'

referred to in the P.D. Amongst the precepts appearing there are the requirements of proportionality, the expeditious dealing with cases, and the saving of expense.

Rule 25.1 Family Procedure Rules 2010
Of more recent interest is the change in rule 25.1 of the FPR 2010 requiring permission to rely upon expert evidence, pointedly described as a 'Duty to restrict expert evidence', and which will further assist in reducing cost and delay.

The new rule came into force on 31st January 2013 and reads as follows:

'Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.' [emphasis added]

The latest edition of The Family Court Practice (2013, at p.2015) contains an editiorial note which suggests that the new provision is no more than a cosmetic change, and makes reference to the old test of what is 'reasonably required'.  But if that is the case, what is the point of the new wording? 

Fortunately, practitioners now have the benefit of a recent decision in the Court of Appeal (Re H-L (A Child) [2013] EWCA Civ 655 – see below) which in language and tone, indicates a much more restrictive approach to applications for permission, and which can be seen as building on the guidance given by the President In the Matter of TG (A Child) [2013] EWCA Civ 5 (January 2013).

The President's guidance in TG (A Child)
The latter case involved a child who at 12 days of age was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages.    The appeal arose out of the refusal by Judge Bellamy (sitting as a High Court Judge) to give the father permission to adduce expert evidence from a bio-mechanical engineer.  Although the old r 25.1 was still in force, the President heralded the imminent arrival of the new rule in uncompromising terms.   His Lordship 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. The test of what is 'necessary' sets a hurdle which is on any view significantly higher than the old test of what is 'reasonably required.'

It will be recalled that in this case the appeal was dismissed on a number of grounds, the court endorsing the reasons given by Judge Bellamy for refusal to give permission to instruct the expert.  A key point was that the court did not need expert engineering evidence to demonstrate that a baby strapped into a bouncy chair was incapable of generating the forces required to tip it over.  Furthermore there was no witness account of what had happened, rendering it unlikely that this type of expertise could significantly assist the court. 

Looking to the new rule in the context of biomechanical engineering, Sir James Munby posed the question of whether such evidence might, in the future, satisfy the 'necessary test'.  His answer was: 

'I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts.  As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance...'

The facts and decision in H-L (A Child)
In Re H-L (A Child) [2013] EWCA Civ 655 (13th June) the Court heard an appeal from Newcastle-upon-Tyne County Court, involving an application for permission to instruct three expert medical witnesses, namely, a geneticist, a haematologist, and a paediatrician to provide a general overview.

Existing medical evidence which had been filed came from a number of treating clinicians, but no external medical expert had been formally appointed.  The child subject to the proceedings was 2 years of age and had been born with a rare genetic bone disorder affecting the development of her back and rib bones.   In November 2012 she was noted to have a number of significant bruises to her face and body.  There followed a working diagnosis of non-accidental injury, with care proceedings commencing shortly afterwards.  A key issue was whether a child suffering with such a bone disorder might be more susceptible to bruising than might otherwise be the case.  The local consulting geneticist had stated that there was no possibility of a causal link.

The application for the instruction of three medical experts was opposed by both the local authority and the Guardian.  His Honour Judge Wood concluded that the factual parameters of the case did not satisfy the test of necessity embodied in rule 25.1, and therefore refused permission.  Before the appeal hearing further disclosure occurred which confirmed the diagnosis of spondylocostal dysostosis, thus partly negating the need for a report from a geneticist.  The diagnostic expert also confirmed that he might be able to answer a few targeted questions based on matters of principle, without the need to consider the papers in detail, and on a tight deadline so that the answers might be available before the start of the fact finding hearing which was due to be heard in Newcastle County Court in six days time.   

Of particular interest to practitioners is that their Lordships regarded the case as a useful vehicle to examine the wider implications of rule 25.1 within the overall context of the wider reforms to the Family Justice System, including the target of achieving final resolution within 26 weeks.

The appeal was allowed but only to the extent that the expert geneticist should be permitted to file a short report responding to the 'targeted paper exercise' outlined by the mother's solicitors.  It seems clear that their Lordships gave this limited permission on the basis that the chosen expert could respond very quickly, without a detailed report, and within a timescale which would not jeopardise the overall 26 weeks target.  To have refused that limited permission may have infringed Article 6 ECHR, and also the overriding objective in rule1.1 of FPR 2010.

In summary, Lord Justice McFarlane said:

' is plain to me that that instruction, on those terms, is proportionate to the need to provide some authoritative clarity from a witness who is in a position to give such answers and is therefore ''necessary'' in the manner that is described more fully in the President's judgment...'

Permission to instruct a haematologist and a paediatrician was refused.  The Court took the view that the appeal in respect of those experts did not ' begin to get off the ground'.   The judge was entitled to 'conclude that the need for the instruction of an expert from either of those disciplines was not established on the facts of this case...'.   The reasons given at first instance, that there was no positive evidence to suggest that issues relating to blood clotting disorder could not be given by the local paediatric haematologist, and  that submissions about bruising, could be dealt with by other evidence, were endorsed by the Court of Appeal.

What does 'necessary' mean?
The President gave helpful guidance as to the meaning of the word 'necessary'.  He endorsed the definition given by the Court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2FLR 625:

'[It] has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand'', having ''the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable''.   In my judgment, that is the meaning, the connotation, the word 'necessary' has in rule 25.1.' 

Sir James Munby also made it abundantly clear that the new test is intended to be significantly more stringent than the old (referring to his comments in Re TG (above)).

In the light of these two weighty Court of Appeal decisions, the learned editors of The Family Court Practice will surely re-write the note to r25.1 at the earliest opportunity.

Some conclusions
There will doubtless be other appeals involving the new rule, one or more of which may well fall for consideration in the Supreme Court.  Nevertheless the more recent appeal cases offer useful guidance to practitioners as to the way ahead, and the writer tentatively offers the following thoughts in respect of the approach likely to be taken by the family courts.

(1)  The new rule will be seen as imposing a much more stringent test to be satisfied before permission is likely to be given.   This new approach can be seen as an important part of the drive to ensure that decisions in care cases are made expeditiously in accordance with the 26 weeks timetable.

(2)   In considering whether expert evidence is necessary, the court will review what other evidence is available, and whether that evidence will enable the court to make findings of fact without reference to a particular expert or experts.   In assessing alternative evidence, regard will be had to the available lay-evidence , the scope and quality of evidence given by social workers and Cafcass officers,  and the evidence of other professionals, including Guardians.  

Although not conventional 'experts', professional witnesses do carry a level of expertise which is likely to be more highly valued in the future.    In their own fields such witnesses will properly be regarded as having extensive and valuable knowledge within the field of child care, including the educational and emotional development of children.  This has always been the case, with the difference in the new era that the courts will need to have greater reliance upon them, in the absence of traditional experts. 

(3)  Unproven and untested scientific evidence, for example bio-mechanical engineering evidence(TG), is less likely to be permitted, although expert evidence  of a kind which has been tried and tested by the courts, for example expert medical evidence in cases of alleged non-accidental injury, should continue to find favour where it is found to be necessary.   On this point, the comments of the President in TG should be noted:

'.....The Judge will need to be alert to the risks posed by what may turn out to be 'bad science'.  On the other hand the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case.'

(4)  The court may be more amenable to granting permission if it can be shown that the nominated expert can report within the timetable ordered within the proceedings.  Lord Justice McFarlane noted in H-L that the chosen expert agreed to answer 'two or three targeted questions' within a tight deadline, such that the finding of fact hearing in six days time could be accommodated.
Another important consideration, as always, will be the cost of instructing an expert.  A combination of high cost and delay in producing a report did not help when considering the application for bio-mechanical engineering evidence in TG.  In that case Sir James Munby referred to the estimated cost of between $18,500-$22,000, with a time-scale which would have produced a final report on the last working day before the start of the finding of fact hearing. 

(5)   It is perhaps an obvious point, but if there are cogent arguments which raise realistic issues under Articles 6 and 8 of the ECHR, the court is more likely to grant permission for expert evidence.  Even in this case, time, cost, and questions of proportionality will have to be weighed in the balance.  Presumably, if the court concludes that refusal of permission would breach an applicant's human rights, it follows that expert evidence will be regarded as necessary.     

On the question of whether the child in H-L was more prone to manifest bruising than a child without his genetic disorder, it was said to be unsatisfactory for the local consultant clinical geneticist (who admitted that the question was outside his knowledge) to answer the question.

Lord Justice McFarlane said:

'If the mother and those acting for her wish to challenge or seek elaboration upon that opinion during the course of the trial Dr Wright is in no position to take the matter any further.  That is, in my view, a situation which potentially falls short of the requirements of ECHR, Art 6 and the overriding objective in rule 1.1 of FPR 2010.'