The Family Procedure Rules 2010 were amended to require as of 31 January 2013 that Judges first find that an expert is “necessary” prior to authorising instruction of such an expert.
The Court of Appeal has addressed the issue of the meaning of “necessary” and has concluded that the test makes it likely that the use of experts in family proceedings will be less common.
The change in the Family Procedure Rules was thought necessary because of the burgeoning increase in cost in family proceedings driven by the use of competing experts. Consequently the Judiciary have been elevated to the position where not only must they decide cases upon a factual basis but also decide which cases should benefit from the utilisation of expert opinions.
The utilisation of so called expert evidence which hitherto was common place will now appear to be severely restricted.
Evidence of dubious benefit in family cases, such as a drug and alcohol specialist regarding the risk of someone resuming a dependency, or psychological evidence based upon untested theory is likely to be severely restricted.
Of course one risk of the “necessity” test is that those representing the most needy in family proceedings do so with a mind-set that discounts the utilisation of expert evidence. Expert evidence properly utilised will always have a place in the most difficult cases and must continue to be utilised where appropriate. Expert opinion is that which assists a decision maker as it draws on experience and expertise not held by the Judiciary or any decision making tribunal.
The decision to restrict the instruction of experts to cases where it is “necessary” rather than helpful is driven by the need to cut costs and the rationing of scarce resources. A well trained judiciary must be in a position to identify those cases where expert evidence will bring something to the case that is needed.
No doubt solicitors and advocates representing clients in family proceedings will need to become well attuned to making representations for expert assistance only in those cases where the Judge will authorise the same. Inevitably clients’ expectations will need to be managed and the solicitor’s reputation before his or her local Court will become more important than ever.
Head of Family Department
3 September 2013