Family Procedure Rules
DIRECTION 25B– THE DUTIES OF AN EXPERT, THE EXPERT’S REPORT AND ARRANGEMENTS FOR AN EXPERT TO ATTEND COURT
This Practice Direction supplements FPR Part 25
|Scope of this Practice Direction||Para. 1.1|
|The meaning of ‘expert’||Para. 2.1|
|The expert’s overriding duty||Para. 3.1|
|Particular duties of the expert||Para. 4.1|
|The requirement for the court’s permission||Para. 5.1|
|Preliminary enquiries which the expert should expect to receive||Para. 6.1|
|Balancing the needs of the court and those of the expert||Para. 7.1|
|The expert’s response to preliminary enquiries||Para. 8.1|
|Content of the expert’s report||Para. 9.1|
|Arrangements for experts to give evidence||Para. 10.1|
Scope of this Practice Direction
This Practice Direction focuses on the duties of an expert including the contents of the expert’s report and, where an expert is to attend court, the arrangements for such attendance. Other Practice Directions supporting FPR Part 25 deal with different aspects of experts in family proceedings. The relevant Practice Directions are –
(c) Practice Direction 25D (Financial Remedy Proceedings and Other Family Proceedings (except Children Proceedings) – The Use of Single Joint Experts and the Process Leading to Expert Evidence Being Put Before The Court);and
Practice Direction 15B (Adults Who May Be Protected Parties and Children Who May Become Protected Parties In Family Proceedings) gives guidance relating to proceedings where an adult party may not have capacity to conduct the litigation or to instruct an expert.
In accordance with FPR 25.2(1), “children proceedings” means-
(a) proceedings referred to in FPR 12.1 and 14.1 and any other proceedings which relate wholly or mainly to the maintenance or upbringing of a minor;
(b) applications for permission to start proceedings mentioned in paragraph (a);
(c ) applications made in the course of proceedings mentioned in paragraph (a).
The meaning of ‘expert’
In accordance with FPR 25.2(1), ‘expert’ means a person who provides expert evidence for use in family proceedings. expressly refers to evidence that is not expert evidence. For example, evidence given by a children’s guardian is not expert evidence.
An expert includes a reference to an expert team which can include ancillary workers in addition to experts. In an expert team, an ‘ancillary’ worker may be, for example, a play therapist or similar who undertakes work with the child or family for the purpose of the expert assessment. It is perfectly possible that such workers will be experts in their own right and in their own field, but it would be cumbersome to name everyone in that position in an order giving permission for an expert to be instructed, a child to be medically or psychiatrically examined or otherwise assessed or expert evidence to be put before the court or in a letter of instruction to an expert. The purpose of the term ‘expert team’ is to enable a multi-disciplinary team to undertake the assessment without the order having to name everyone who may be involved. The final expert’s report must, however, give information about those persons who have taken part in the assessment and their respective roles and who is responsible for the report.
The expert’s overriding duty
An expert in family proceedings has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
Particular duties of the expert
(a) to assist the court in accordance with the overriding duty;
(c) to answer the questions about which the expert is required to give an opinion (in children proceedings, those questions will be set out in the order of the court giving permission for an expert to be instructed, a child to be examined or otherwise assessed or expert evidence to be put before the court);
(f) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;
(g) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;
(h) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.
The requirement for the court’s permission
The general rule in family proceedings is that the court’s permission is required to put expert evidence (in any form) before the court . The court is under a duty to restrict expert evidence to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. The overriding objective in FPR1.1 applies when the court is exercising this duty. In children proceedings, the court’s permission is required to instruct an expert and for a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in the proceedings .Back to top
Preliminary enquiries which the expert should expect to receive
(a) the court hearing when the court will decide whether to give permission for the expert evidence to be put before the court (or also in children proceedings, for the expert to be instructed or the child to be examined or otherwise assessed); or
(b) the advocates’ meeting or discussion where one takes place before such a hearing,
The details of the information to be given to the expert are set out in Practice Direction 25C, paragraph 3.2 and Practice Direction 25D paragraph 3.3 and include the nature of the proceedings, the questions for the expert, the time when the expert’s report is likely to be required, the timing of any hearing at which the expert may have to give evidence and how the expert’s fees will be funded.
Children proceedings are confidential which means in thos eproceedings parties raising preliminary enquiries of an expert who has not ye tbeen instructed can only tell the expert information which he or she will need about the case to be able to answer the preliminary questions raised.Back to top
Balancing the needs of the court and those of the expert
It is essential that there should be proper co-ordination between the court and the expert when drawing up the case management timetable: the needs of the court should be balanced with the needs of the expert whose forensic work is undertaken as an adjunct to his or her main professional duties.
The expert’s response to preliminary enquiries
In good time for the court hearing when the court will decide whether or not to give permission for the expert evidence to be put before the court (or also in children proceedings, for the expert to be instructed or the child to be examined or otherwise assessed) or for the advocates’ meeting or discussion where one takes place before that hearing, the party or parties intending to instruct the expert will need confirmation from the expert –
(d) when the expert is available to give evidence, of the dates and times to avoid and, where a hearing date has not been fixed, of the amount of notice the expert will require to make arrangements to come to court (or to give evidence by telephone conference or video link) without undue disruption to his or her normal professional routines;
(e) of the cost, including hourly or other charging rates, and likely hours to be spent attending experts’ meetings, attending court and writing the report (to include any examinations and interviews);
(f) of any representations which the expert wishes to make to the court about being named or otherwise identified in any public judgment given by the court.Back to top
Content of the expert’s report
(b) include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;
(c) state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;
(i) take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
(ii) describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;
(iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
(iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;
(ii) identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
(iii) will advise the instructing party if, between the date of the expert’s report and the final hearing, there is any change in circumstances which affects the expert’s answers to (i) or (ii) above;
(v) is aware of the requirements of FPR Part 25 and this practice direction;
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
Where the report relates to children proceedings the form of statement of truth must include –
“I also confirm that I have complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to Practice Direction 25B- The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court”
(FPR Part 17deals with statements of truth. Rule 17.6 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)Back to top
Arrangements for experts to give evidence
Where the court has directed the attendance of an expert witness, the party who instructed the expert or party responsible for the instruction of the expert shall, by a date specified by the court prior to the hearing at which the expert is to give oral evidence (‘the specified date’) or, where in care or supervision proceedings an Issues Resolution Hearing (‘the IRH’) is to be held, by the IRH, ensure that –
(a) a date and time (if possible, convenient to the expert) are fixed for the court to hear the expert’s evidence, substantially in advance of the hearing at which the expert is to give oral evidence and no later than a specified date prior to that hearing or, where an IRH is to be held, than the IRH;
(d) consideration is given in each case to whether some or all of the experts participate by telephone conference or video link, or submit their evidence in writing, to ensure that minimum disruption is caused to professional schedules and that costs are minimised.
Experts attending court
(c) the court is informed of any circumstance where all experts agree but a party nevertheless does not accept the agreed opinion, so that directions can be given for the proper consideration of the experts’ evidence and opinion;
(d) in the exceptional case the court is informed of the need for a witness summons.
U.K. Procedure Rules https://www.justice.gov.uk/courts/procedure-rules