Tag Archives: Attendance of experts at final hearing

This is another one where the High Court is at pains to establish that this is a fact specific decision rather than an intended precedent to follow – though there is one element that probably establishes something practitioners are expected to follow.

I wish to emphasise that this case management decision turns on the facts of this case. It does not presage a change of approach to the application of FPR 25.9(2) from that taken by the courts since the relaunch of the Public Law Outline in Part 12 of the FPR. Nor does it set any precedent with respect to the attendance of experts in cases of alleged serious or fatal non-accidental head injury. It is simply a product of applying the test articulated in FPR r.25.9(2) to the facts of this case.

A Local Authority v X (Attendance of Experts) (Rev1) [2025] EWFC 137 (03 June 2025)
URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2025/137.html

1. 
   Section 13 of the 2014 Act and FPR 2010 Part 25 govern the use of expert evidence in children proceedings. Section 13 of the 2014 Act embodies the intention of Parliament that the courts exert control on the use of expert evidence in proceedings relating to children, by reference to the test of necessity (see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] 1 FLR 1250 at [30]).
2. Section 13(6) of the 2014 Act makes clear that is for the court to decide whether, and if so what, expert evidence is necessary to assist the court to resolve the children proceedings justly. The role of the court in policing the use of expert evidence in proceedings relating to children is further reinforced by the provisions of FPR Part 25. The expert with respect to whom permission is given owes their duty to the court pursuant to FPR r.25.3(1) and, pursuant to FPR r.25.3(2), that duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. In children proceedings, pursuant to FPR r.25.8(2)(a) the court is required to approve the questions which the expert is asked to answer.
3. In the foregoing context, the purpose of FPR r. 25.9 is to limit the attendance of experts at hearings in children proceedings to that which is necessary in the interests of justice. Pursuant to FPR 2010 r.25.9(1), the general rule is that expert evidence is to be given in a written report unless the court decides otherwise. FPR 2010 r.25.9(2) stipulates that the court will not direct the attendance of the expert at a hearing unless it is necessary to do so in the interests of justice. Read as a whole, it is clear that the rule goes beyond merely a requirement for the expert to provide their report in writing and stipulates how evidence will be given by an expert at the hearing itself. Namely, in writing rather than orally unless the test of necessity in the interests of justice is met.

There was a request in these proceedings for the medical experts to attend to be cross-examined – the Court note that there is NO article 6 right for a parent in care proceedings to be able to cross-examine an expert and distinguishing care proceedings from the civil proceedings rule in CHEN and TUI v GRIFFITHS on the basis that care proceedings are not adversarial but quasi-inquisitorial.

Hmmm. I’ve been hearing that for years, and it still feels pretty adversarial to me. (However, it is always novel to see an important principle in English law that really turns on someone having a gyppy tummy)

https://www.bailii.org/uk/cases/UKSC/2023/48.html

In circumstances where the test for the attendance of an expert at the hearing is whether it is necessary in the interests of justice, and where the role of challenging evidence is in some cases central to ensuring the fairness of the hearing, I am satisfied that a parent’s wish for the expert to be cross-examined in the face of their denial of culpability may be a factor supporting the necessity of the expert’s attendance in the interests of justice, depending on the facts of the case. The Overriding Objective in FPR Part 1, by reference to which FPR r.25.9(2) falls to be applied, implicitly recognises the tension between expedition and fairness and requires the court to adhere to both those principles in reaching its case management decisions. Accordingly, the parent’s wish for the expert to be cross-examined in the face of their denial of culpability may, depending on the facts of the case, be relevant when evaluating the interests of justice for the purposes of FPR r.25.9(2). I venture to suggest, however, that such a wish is unlikely to be capable of determining the question of necessity on its own. As such, I am not able to accept the submission of Mr Momtaz and Mr Jagutpal on behalf of the mother and Mr Storey and Ms Slee on behalf of the father that:

“…in reality a fair trial means that a parent should have to say little more than ‘I did not do what I am accused of doing’ and therefore ‘that expert is wrong’ [before] being entitled to have their view tested.”

The Court did allow the attendance of experts in this case, and the one element where they did step outside case-specific and into broader principle was the argument by counsel that a request for attendance of an expert need not be by way of C2. MacDonald J firmly disagreed with that proposition.

Balancing these matters, and in circumstances where it is clear from the terms of the general rule in FPR r.25.9(1) that it is only where the court has given a direction that the experts attend the hearing that this can occur, I am satisfied that it is proper to require a C2 application form where a direction for expert attendance is sought, setting out reasons why it is said that such attendance is necessary in the interests of justice. Such an application puts the court and parties on notice that a direction is sought and the reasons why it is sought. This approach is also consistent with the sound administration of justice in circumstances where a habit has developed of parties seeking case management directions by way of email to the court, often only days or even hours before a hearing. In their Position Statement of 13 March 2025, Mr Momtaz and Mr Jagutpal also complain about the requirement to apply by way of a C2 application where remote attendance by parties and/or legal representatives is sought. That submission does not sufficiently recognise the caustic effect on the sound administration of justice of large numbers of last minute emails arriving in the Inbox of the already overburdened judge’s clerk or judge. Finally, and an often overlooked point in the foregoing context, whilst Mr Momtaz and Mr Jagutpal further baulk at the cost of such C2 applications to the Legal Aid Agency or local authority of £184, that fee covers the administrative costs of processing the application the parties seek to advance.