Instructing an Expert in Family Court Proceedings
If you are a parent applying for a child arrangement order, a prohibited steps order, a specific issue order, or an order allowing you to take your child overseas to live, or opposing an application, the rules on instructing experts can be complicated and frustrating.
When it’s your child who is the subject of child law court proceedings, it’s natural to think that you can file any evidence you want to support your application, and that if you want your child to see an expert, it’s your right as a parent to choose the expert and make the appointment. If your expert writes a letter or reports, it is equally natural to assume the family law judge will allow you to rely on the expert’s evidence. However, family court rules don’t work that way.
The law and rules on instructing an expert in family law proceedings are set out in:
- The Children and Families Act 2014.
- Part 25 of the Family Procedure Rules.
- The accompanying Practice Directions.
- The President’s Memorandum on Experts in the Family Court dated 11 October 2021.
The court’s role in instructing experts in child law cases
Section 13(6) of the Children and Families Act 2014 says that expert evidence is only permitted in children proceedings if the court thinks that expert evidence is necessary to assist the court to resolve the proceedings justly.
Section 13(7) of the Act outlines the factors a judge must consider when deciding whether to give permission to instruct an expert:
- Any impact which giving permission would be likely to have on the welfare of the child, including the impact of any examination or other assessment on the welfare of the child.
- The issues the expert would report on.
- The questions which the court would require the expert to answer.
- Whether other expert evidence is available.
- Whether evidence could be given by another person on the matters on which the expert would give evidence.
- The impact on the court timetable and final hearing date of instructing an expert.
- The cost of the expert evidence.
- The matters prescribed by the Family Procedure Rules.
If a parent ignores the rules and an expert prepares a report without prior court permission, the court may refuse to accept the report as evidence.
Experts in children’s law proceedings
What counts as expert evidence in children’s law proceedings? Typically, expert evidence can be ordered from:
- A child psychologist or psychiatrist.
- A medical doctor.
- An expert in comparative law.
- A DNA analyst.
- An adult psychologist, psychiatrist or medical doctor.
- An expert in parental drug or alcohol usage or in providing evidence of the absence of usage.
- An independent social worker.
As a parent, you may think that expert evidence is required to prove your case. For example, you may believe that:
- If a child psychologist sees your child, the expert will diagnose parental alienation, and that will help your application for a child arrangement order.
- Getting evidence from your child’s consultant on your child’s medical history, diagnosis, and the extent of your child’s special needs will help your case in proving that your ex can’t meet your child’s physical or emotional needs and therefore should not be allowed to co-parent.
- A hair test report will prove that you are not addicted to drugs or alcohol, as alleged by the other parent, and will help your case for contact to be reinstated.
You may be in contempt of court if you give an expert information about a child without the court’s permission to do so. That’s because there are strict rules on the confidential nature of children’s law proceedings.
Procedure to instruct an expert in children’s law applications
The rules require parents to apply to the court for permission to instruct an expert. Early identification of the need for expert evidence is required, as the rules say the requirement for expert evidence must be raised as soon as it becomes apparent that you want to instruct an expert, and by no later than the date of the first hearing dispute resolution appointment. This is to avoid a delay in the final hearing of the application.
The court rules require an organised approach to making an application to instruct an expert. Under the Practice Direction, before you make a court application to instruct an expert, you need to have given the expert specified information. The expert then needs to give you preliminary information, so the judge can properly assess your application.
The information required from the expert includes confirmation of the expert’s expertise, confirmation that the work falls within the expert’s area of expertise, the expert’s timeframe to complete their report, and the expert’s costs.
An application to instruct the expert is then made using application Form C2. Tostand the best chance of a successful application, you need to include all the prescribed information in the application and prepare a draft order setting out the proposed remit of the expert’s instruction.
The application must be served on the other parent and any other parties to the court application. They may oppose the instruction of any expert or agree that an expert report is necessary, but suggest the instruction of an alternative expert based on the other expert’s area of expertise, ability to deliver a report quickly or their costs.
The court hearing on whether to permit the instruction of an expert
The court hearing on whether to allow the instruction of an expert can be pivotal to whether you will be able to secure the child arrangement order or other children law order you seek at the final hearing of the child law proceedings. That’s why it’s crucial to follow all the Practice Direction guidance on the Part 25 application and to present your case to allow the instruction of your proposed expert based on:
- Why the instruction of an expert is necessary and in the best interests of your child, as the expert evidence is needed to assist the judge in resolving a key issue that is critical to enabling the judge to come to a fair and informed decision on what child arrangement order or other children law order is in your child’s best interests.
- Information on why the time taken to obtain the report and the costs involved is necessary because of the importance of the expert opinion to a crucial aspect of the court decision-making process.
- Why the proposed expert is the best person to prepare the report due to their qualifications and relevant experience.
Family law legal advice on a Part 25 application
A family law judge will want to rigorously assess whether expert instruction is necessary and whether it is both cost- and time-proportionate. The judge will need to be persuaded that the additional costs and the delay in waiting for an expert’s report are justified and that permitting the instruction of the expert is in the best interests of your child.
Taking specialist family law legal advice on the merits of making a Part 25 application is an important first step. A family lawyer may advise you that an issue that you see as central to the judge’s decision is not going to be a critical factor in the outcome of your application. For example, if you allege your ex-partner is an occasional drug user and you want to commission expert drug testing evidence to prove it to justify the court’s refusal of your ex-partner’s request for contact with his teenage child. The outcome of the application may be different if you are alleging that your ex-partner has a chronic alcohol or drug addiction and is therefore unsafe to co-parent your baby.
If expert evidence will go to the heart of the children law issues, your family law solicitor can advise on how to navigate all the complexities of a Part 25 application, prepare a detailed and Practice Direction compliant C2 application and represent you at the hearing of the Part 25 application to instruct an expert using their advocacy expertise to persuade the judge that the instruction of an expert is critical to their decision-making process.
Call Angelique Holm on 0203 488 8620, email info@hopeholm.co.uk or visit Hopeholm Family Law.