A Local Authority v X (Attendance of Experts) [2025] EWFC 137

[2025] EWFC 137Case No ZE24C50081IN FAMILY COURTVenue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/06/2025
Before
MR JUSTICE MACDONALD
Between
A Local AuthorityApplicantAXFirst RespondentDASecond RespondentLXThird Respondent
Ms Joanne Brown KC and Ms Fay Baker (instructed by the Local Authority) for ApplicantMr Sam Momtaz KC and Mr Harry Simons (instructed by Ewings Solicitors) for First RespondentMr Paul Storey KC and Ms Lydia Slee (instructed by GT Stewart Solicitors and Advocates) for Second RespondentMs Taryn Lee KC and Mr Tim Hussein (instructed by Slater Bradley Solicitors) for Third RespondentHearing Hearing dates: 7 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 3 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE MACDONALDThis judgment was delivered in private and a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]In this matter I am concerned with a case management application by AX (hereafter “the mother”) and DA (hereafter “the father”) pursuant to FPR 2010 r.25.9(2) for a direction that the single joint experts, Dr Hogarth (Neuroradiologist), Mr. Jayamohan (Paediatric Neurosurgeon), Dr. Olsen (Paediatric Radiologist) Dr Brockelsby (Obstetrician), Dr Saggar (Geneticist) and Dr. Ward (Consultant Paediatrician) shall attend to give oral evidence on the grounds that it is necessary for them to do so in the interests of justice.[2]The case management decision with which the court is concerned falls to be taken in proceedings under Part IV of the Children Act 1989 concerning L, born in early 2024 and represented at this hearing by Ms Taryn Lee of King’s Counsel and Mr Tim Hussein of counsel, through her Children’s Guardian. The mother is represented by Mr Sam Momtaz of King’s Counsel and Mr Previn Jagutpal of counsel. The father is represented by Mr Paul Storey of King’s Counsel and Ms Lydia Slee of counsel. The substantive application for a care order in respect of L is brought by the local authority, represented by Ms Joanne Brown of King’s Counsel and Ms Fay Baker of counsel.[3]In determining this preliminary case management application, I have had the benefit of comprehensive submissions from leading and junior counsel, together with an extensive bundle of authorities and materials. At the conclusion of oral submissions on behalf of each party, I reserved judgment and now set out my decision and the reasons for it.[4]It is important to note at the outset that the court is concerned with a case management decision. Case management decisions, including decisions under FPR r.25.9(2), ordinarily fall to be made swiftly and, where there is a disagreement, with only brief reasons. In circumstances where it would appear that there is a dearth of authority dealing with the operation of FPR 2010 r.25.9 in the context of public law children proceedings, and where the parties have accordingly placed before the court extensive written and oral submissions on the operation of s.13 of the Children and Families Act 2014 (hereafter “the 2014 Act), Part 25 of the FPR 2010 and the authorities concerning the role of challenging evidence in ensuring a fair hearing, I have considered it appropriate to deal with those submissions. However, the process of determining whether it is necessary in the interests of justice for the experts to attend the hearing to give oral evidence will ordinarily comprise a far more circumscribed process, both in terms of argument and reasons, than I have adopted here.

BACKGROUND

[5]L was admitted to hospital at the age of 5 weeks following seizures. L underwent a CT scan. That scan showed multiple bleeds on the brain. On examination, bruising was found on L’s buttocks and abdomen. L was transferred to another hospital and admitted to the paediatric intensive care unit. The treating clinicians also considered that L had suffered abdominal trauma, on the basis of fluid in the abdomen. In circumstances where the authorities suspected that L’s injuries were caused non-accidentally, she was placed under police protection.[6]Care proceedings were issued by the local authority. The mother has alleged that, prior to the discovery of L’s injuries, the father had looked up “shaken baby” online in circumstances where he was concerned he had been winding L too forcefully. The mother also reports that a witness heard the father winding L so forcefully during the night that she came downstairs and took L away from him. In circumstances where the paternal grandparents were identified by the parents as potentially having caused the injuries sustained by L, they were joined as parties to the proceedings. Their engagement in the proceedings to date has been limited. There is evidence in the papers of a strained relationship between the father and the paternal grandfather, including allegations of a physical altercation between them and the making of death threats by the paternal grandfather towards the father.[7]The parents have also described difficulties in their own relationship, which has now come to an end. The father has alleged that the mother was coercively controlling. The mother has alleged that the father has harmed himself when angry or upset, thrown items when overwhelmed or angry and that his behaviour frightened her. It is alleged that the father behaved in this manner whilst caring for L. Within this context, in addition to the injuries sustained by L, the local authority’s focus has also fallen on the parents’ mental health, allegations of domestic abuse and coercive and controlling behaviour, parenting ability and neglect. With respect to issues of mental health, the court bundle contains an expert report from Dr Ratnam, Consultant Psychiatrist. She considers that the mother fulfils the criteria for a diagnosis of recurrent depression and that the father likewise met the criteria for recurrent depression, with some maladaptive personality traits.[8]In the context of the injuries sustained by L, the judge to whom the case was allocated gave permission for the instruction of a number of medical experts as being necessary to assist the court to resolve the proceedings justly for the purposes of s.13 of the 2014 Act. In summary, their conclusions are as follows: i) In his initial report dated 14 May 2024, Dr Keenan (Consultant Haematologist) concluded that the bruising and bleeding observed in L occurred in a child with normal blood clotting. In his addendum report dated 29 November 2024, Dr Keenan further opined that testing for deficiencies in blood clotting factor V, Von Willebrand disease type 2M, and platelet storage pool disorders confirmed that there is no evidence of a clotting disorder in L and reiterated his opinion that the bruising and bleeding observed in L occurred in a child with normal blood clotting. ii) In his report dated 12 June 2024, Dr Hogarth (Consultant Neuro-Radiologist) opined that the CT and MRI findings are highly concerning for an inflicted shaking injury, likely occurring at some point in the 10 days leading up to the CT scan. Dr Hogarth considered that the inferior frontal cortical contusions and the multiple thrombosed bridging veins, in particular, are suggestive of a more recent shaking type incident. Dr Hogarth considered that the possibility that there was more than one injurious episode separated in time could not be excluded on the available neuroimaging evidence. Dr Hogarth was not able to identify any other cause for the findings, although Dr Hogarth considered that the cavity in the left inferior frontal lobe could be the legacy of an earlier injury but a birth-related cause cannot be entirely excluded. iii) In his report dated 5 July 2024, Dr. Jayamohan (Consultant Paediatric Neurosurgeon) identified evidence of encephalopathy in L on admission, with ongoing worsening from that point on. He concluded that the cause of L’s collapse is likely to have involved the shaking mechanism. Further with respect to causation, Dr Jayamohan considered that the proposition that a baby with a non-instrumented caesarean section at term, as L had been, developed both subdural collections that remained and became chronic, and bilateral frontal brain injury, is so unlikely as to be hypothetical. iv) In his report dated 6 October 2024, Dr Olsen (Paediatric Radiologist) identified a fracture of L’s left acromion. He opined that shaking while holding a child around the chest, causing the arm to flail, could be a causative mechanism for this injury, as could a left arm pulled sharply, the left arm twisted around the back or an impact against the tip of the left shoulder. Dr Olsen did note a paper that states seizures may cause sufficient muscle contraction to break off the tip of the acromion. He considered that the fracture had, most likely, occurred on or after 24 January 2024, although this was an estimate rather than a determination. Dr Olsen disagreed with a view expressed by the treating clinicians regarding the presence of abdominal trauma, attributing the fluid in L’s abdomen to fluid overload in an intensive care setting rather than trauma (Dr Olsen noting that the image showed fluid in numerous potential spaces that are not anatomically connected typical in a child who is overloaded with fluid in an intensive care setting, with no indication that any of the fluid in the abdomen was secondary to abdominal trauma). v) In her report dated 20 January 2025, Dr Ward (Consultant Paediatrician) concluded that the constellation of symptoms, including seizures, encephalopathy, bruising to L, her complex head trauma and the fracture to the left acromion was consistent with inflicted trauma. Dr Ward did not identify any underlying medical condition that would cause, contribute to, or exacerbate L’s injuries. Dr Ward opines that, based on the clinical history of a brief resolved unexplained incident involving projectile vomiting and apnoea/altered breathing on the day of admission and development of focal, and later generalised seizures, and neuroradiology, it is likely that the acute incident causing injury occurred within 24 hours of admission with seizures and was an episode of rotational acceleration-deceleration or shaking-type injury. Dr Ward is not able to rule out the possibility of more than one incident of rotational acceleration-deceleration within that twenty four hour period, or possibly earlier, on the basis of clinical history. With respect to the bruising, Dr Ward noted that bruising is extremely uncommon in a pre-mobile child, that L would not be capable of causing such injury to herself and there is no underlying medical condition which would cause, or predispose to bruises. Dr Ward opined that injury to the trunk may have been caused by forceful gripping, grasping or blunt force injury and that bruising to buttocks was more likely than not the result of blunt force injury, such as smacking. With respect to the fracture to the left acromion, Dr Ward considered this to be a rare fracture in a pre-mobile child and that a number of mechanisms of injury are possible, including direct impact to the shoulder, a sharp jerk, or pulling, or twisting of the left arm. vi) Dr Saggar (Consultant Geneticist) provided a report dated 12 October 2024 concluding there is insufficient evidence to suggest the mother has HSD or any other significant connective tissue disorder. In those circumstances, Dr Saggar opines that there is no significant risk therefore that L would inherit such a susceptibility and the lack of any joint laxity in L would suggest that she is not at risk of cerebral bleeding from lesser force. In any event, Dr Saggar concludes that HSD would not explain the cerebral contusion. Dr Saggar considered that clinical and genetic testing did not identify any syndrome or gene mutation that would predispose L to cerebral bleeding or brain contusion. He considered that there had been a force or repeated forces that caused the brain subdural bleeds, subarachnoid bleed, and other cerebral changes. He mentioned that six variants of unknown clinical significance were identified in the genetic testing and that these variants are not currently associated with any known disorders, but their significance could change with future research. vii) Dr Brockelsby (Consultant Obstetrician), concluded that the acromial fracture did not occur at birth. He noted that there are no reports of acromial fractures being caused during birth, either vaginally or via Caesarean section. Although he acknowledged a theoretical chance that subdural haemorrhage could occur during delivery, and therefore that it would not be possible to suggest that some of the injuries did not occur with the birth process in circumstances where it is known that such injuries are relatively common, Dr Brockelsby considered subdural birth injury highly unlikely based on the fact that L's Caesarean was straightforward and without complications. Dr Brockelsby further emphasised that subdural haematomas associated with delivery are typically located in the posterior aspect of the cranium, whereas L’s bleeds were anterior. Dr. Brockelsby expressed agreement with the other experts directed by the court and considered that the likelihood of the injuries occurring during the birth process is more theoretical than realistic. Dr Brockelsby found it implausible that the injuries observed could be attributed to the birth process.[9]Following receipt of the expert reports, on 20 November 2024 the judge directed an experts meeting, with questions for the experts to be sent by the parties to the solicitor for the child. The experts meeting took place on 27 January 2025. At that meeting, the instructed experts maintained their respective positions, with each expert opining that L’s injuries were consistent with inflicted trauma, rather than with medical conditions or a birth-related cause.[10]As to the procedural history with respect to the question of a direction for the attendance of the experts at the hearing, pursuant to FPR r.25.9(2), on 14 March 2025 the judge directed that any party seeking the attendance of one or more experts issue a C2 application. The question of the attendance of the experts in the event of such an application was adjourned to the IRH, listed on 15 April 2025. Beyond their argument that this is a case in which it is necessary in the interests of justice for the experts to attend the hearing, in their joint Skeleton Argument supporting the C2 application the parents made a number of wider submissions regarding the proper approach to directions under FPR r.25.9(2). These submissions included the contention that the courts’ recent insistence on compliance with the terms of FPR 25.9(2) amounts to “a cost saving measure” and that the Practice Note for London issued by me in my capacity as Family Presiding Judge for London does not accurately reflect the test set out in FPR r.25.9(2), a submission they contend is strengthened by the recent decision of the Court of Appeal in Re M (Intermediaries) [2025] EWCA Civ 440. In the circumstances, this matter was reallocated to me to hear the application for a direction that the experts attend the hearing.[11]The primary issue as between the parties concerns which experts should be directed to attend the hearing. The parents and the Children’s Guardian submit that it is necessary in the interests of justice for Drs Hogarth, Jayamohan, Olsen, Ward, Saggar and Brockelsby to be directed to attend. The local authority submits that it is necessary in the interests of justice only for Drs Hogarth, Jayamohan, Olsen, Ward to attend. The local authority submits that it is not necessary for the court to direct the attendance of Drs Saggar and Brockelsby. No party seeks for Dr Keenan or Dr Ratnam to attend.

RELEVANT LAW

[12]Section 13 of the 2014 Act controls the use of expert evidence in children proceedings (as defined in FPR r.25.2(1)). Section 13 of the 2014 Act provides as follows in so far as is relevant for present purposes:
“13 Control of expert evidence, and of assessments, in children proceedings (1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings. (2) Where in contravention of subsection (1) a person is instructed to provide expert evidence, evidence resulting from the instructions is inadmissible in children proceedings unless the court rules that it is admissible. (3) A person may not without the permission of the court cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings. (4) Where in contravention of subsection (3) a child is medically or psychiatrically examined or otherwise assessed, evidence resulting from the examination or other assessment is inadmissible in children proceedings unless the court rules that it is admissible. (5) In children proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court. (6) The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. (7) When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to— (a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed, (b) the issues to which the expert evidence would relate, (c) the questions which the court would require the expert to answer, (d) what other expert evidence is available (whether obtained before or after the start of proceedings), (e) whether evidence could be given by another person on the matters on which the expert would give evidence, (f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings, (g) the cost of the expert evidence, and (h) any matters prescribed by Family Procedure Rules. .../” (a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed, (b) the issues to which the expert evidence would relate, (c) the questions which the court would require the expert to answer, (d) what other expert evidence is available (whether obtained before or after the start of proceedings), (e) whether evidence could be given by another person on the matters on which the expert would give evidence, (f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings, (g) the cost of the expert evidence, and (h) any matters prescribed by Family Procedure Rules. .../”
[13]As is clear from its terms (see for example FPR r.25.5(1)), Part 25 of the Family Procedure Rules 2010 provides the statutory rules of procedure governing the use of expert witnesses in children proceedings under s.13 of the 2014 Act.[14]Where the court grants an application made pursuant to FPR r.25(6) for permission to instruct a person to provide expert evidence for use in children proceedings under s.13(1) of the 2014 Act, the court will give directions specifying the date by which the expert will provide a written report and specifying the date by which the expert is to receive the letter of instruction pursuant to FPR r.25.8(b). Pursuant to FPR r.25.12(1) the parties to children proceedings must agree the letter of instruction to the expert and in default of agreement the terms of the letter of instruction will be settled by the court.[15]Pursuant to FPR r.25.9, the general requirement is for the experts’ evidence to be given in writing unless the court considers it necessary in the interests of

justice to direct the attendance of the expert at the hearing:

“25.9 General requirement for expert evidence to be given in a written report (1) Expert evidence is to be given in a written report unless the court directs otherwise. (2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.”
[16]Following receipt of the written expert report, questions to the expert may be put by each party in writing. FPR Part 25.10 provides a procedural framework for written questions to be put to expert witnesses as follows:
“25.10 Written questions to experts (1) A party may put written questions about an expert’s report to— (a) an expert instructed by another party; or (b) a single joint expert appointed under rule 25.11. (2) Unless the court directs otherwise or a practice direction provides otherwise, written questions under paragraph (1)— (a) must be proportionate; (b) may be put once only; (c) must be put within 10 days beginning with the date on which the expert’s report was served; (d) must be for the purpose only of clarification of the report; and (e) must be copied and sent to the other parties at the same time as they are sent to the expert. (3) An expert’s answers to questions put in accordance with paragraph (1)— (a) must be given within the timetable specified by the court; and (b) are treated as part of the expert’s report. (4) Where— (a) a party has put a written question to an expert instructed by another party; and (b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert— (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party.” (a) an expert instructed by another party; or (b) a single joint expert appointed under rule 25.11. (a) must be proportionate; (b) may be put once only; (c) must be put within 10 days beginning with the date on which the expert’s report was served; (d) must be for the purpose only of clarification of the report; and (e) must be copied and sent to the other parties at the same time as they are sent to the expert. (a) must be given within the timetable specified by the court; and (b) are treated as part of the expert’s report. (a) a party has put a written question to an expert instructed by another party; and (b) the expert does not answer that question, (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party.”
[17]In addition to the use of written questions by the parties to interrogate the written expert evidence, FPR 2010 r.25.16 permits the court, at any stage, to direct a discussion between the experts (usually referred to as an ‘experts meeting’):
“25.16 Discussions between experts (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to— (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. (2) The court may specify the issues which the experts must discuss. (3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which— (a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing.” (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. (a) they agree; and (b) they disagree, with a summary of their reasons for disagreeing.”

DISCUSSION

[18]Having considered the submissions advanced by the parties and on the particular facts of this case, I am satisfied that it is necessary in the interests of justice for Drs Hogarth, Jayamohan, Olsen, Ward, Saggar and Brockelsby. No party seeks for Dr Keenan or Dr Ratnam to attend and I am satisfied that it is not necessary in the interests of justice for them to do so. My reasons for so deciding are as follows.[19]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]).[20]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.[21]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.[22]Within their Skeleton Argument, the parents contend that there is no requirement under the FPR 2010 for parties to make a separate application for a direction under FPR r.25.9(2) that an expert attend a hearing where that is what the party seeks. Ms Brown argued that a direction for the attendance of experts at the hearing is one of the many directions that a court may be asked to make in preparation for the hearing, not all of which will be, or will need to be, the subject of a formal application, including settling the contents of the witness template for the hearing. Against this, whilst FPR r.25.9 does not expressly provide for a separate application to be made, 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. In the circumstances, the question of whether it is necessary for the experts to attend the hearing in the interests of justice will fall to be considered and determined in each case where the court has given permission for expert evidence and a party seeks for the expert to attend. Accordingly, there must be a means consistent with the sound administration of justice by which the parties can indicate to the court whether a direction for the attendance of the experts is sought, in order that the court is in a position to determine whether or not to direct their attendance.[23]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.[24]The test to be applied by the court when considering whether to direct the attendance of the expert or experts is that set out in FPR r.25.9(2). Namely, whether it is necessary in the interests of justice to do so. As was made clear by the Court of Appeal in Re M (Intermediaries), where a test of necessity is set out in the rules, there is “no warrant for overlaying the test of necessity with concepts of rarity or exceptionality”. I accept the submission of the parents that the decision of the Court of Appeal in Re M (Intermediaries) articulates a principle applicable to the interpretation of FPR r.25.9(2). It would not be appropriate to add a gloss of rarity or exceptionality to the test of necessity set out in FPR r.25.9(2). In the circumstances, whilst by definition a direction for the attendance of an expert pursuant to FPR r.25.9(2) will be an exception to the general rule set out in r.25.9(1), there is no test of exceptionality. Accordingly, I further accept the submission that in so far as paragraph 28 of the London Practice Note dated 28 November 2024 (and, by implication, paragraph 12(m) the Case Management Guidance in Public Law Children Cases of 9 March 2022 from which paragraph 28 of the Practice Note is drawn) might been taken to suggest otherwise, that would not be the correct reading of those documents in light of the decision of the Court of Appeal in Re M (Intermediaries). The test is that as set out in FPR r.25.9(2), namely whether the attendance of the expert is necessary in the interests of justice. That is the test I have applied in this case.[25]In an effort to illustrate necessity in this case of the attendance of the experts, the parents placed before the court a list of some sixty-eight cases in which, they submit, the attendance and cross examination of the jointly instructed expert witnesses resulted in a different outcome to that sought by the applicant local authorities. Without wishing to denigrate the industry of leading and junior counsel, the fact that in a number of other cases the court has permitted the attendance of jointly instructed experts for cross examination, and their attendance is said to have had a material effect on the outcome in those cases, is not relevant to the determination of an individual application under FPR 25.9(2). That application will turn on the specific facts of the case in which it is made, having regard to the expert evidence in that case. Further, in so far as the parents submit that the fact there are “a mass of cases” in which the court has permitted the attendance of experts renders the non-attendance of experts for cross examination an exceptional course in family proceedings, as the parties themselves submit and for the reasons I have given, FPR r.25.9(2) contains no test of exceptionality. In the circumstances, the proposition that the court should approach applications under FPR 25.9(2) from the position that the non-attendance of experts at the hearing is exceptional must be as objectionable as the proposition that the court should approach applications under FPR 25.9(2) from the position that the attendance of experts at the hearing is exceptional. The test in each case is whether, on the facts of the case in question, the attendance of the experts at the hearing is necessary in the interests of justice.[26]I pause to note that, in their original Skeleton Argument, the parents contended that the courts’ recent insistence on compliance with the terms of FPR 25.9(2) is “a cost saving measure much in the same way as the recent attempt by two first instance judges to restrict the use of intermediaries” in circumstances where, until recently, the court has not applied the provisions of FPR r.25.9(2) strictly by insisting in each case on an application being made for the attendance of the experts. Whilst the question of costs is relevant to case management decisions having regard to the terms of the Overriding Objective, that submission is misconceived.[27]It has long been established that in care proceedings counsel and solicitors are under an ongoing duty to keep under review the need for expert evidence and that, if possible, questions should be submitted to the expert in writing to avoid the need for attendance (see Merton London Borough Council v K; Re K (Care: Representation: Public Funding) [2005] 2 FLR 422). As I will come to below, it has likewise long been recognised that there will be situations in which the attendance of experts for cross-examination is not necessary (see for example Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211). In any event, where a procedural rule promulgated by Parliament remains in force, the fact that it might in the past have been honoured more in the breach is no justification for continued non-compliance, especially where it is now recognised that historic non-compliance has contributed to delay for vulnerable children and their families. Self-evidently, this does not mean that there is an embargo on, or much less a policy preventing the attendance of expert witnesses to give oral evidence. Nor could there be having regard to the plain terms of FPR 2010 r.25.9(2). Where it can be demonstrated that the attendance of the expert is necessary in the interests of justice, then the court will direct that attendance.[28]The parents further pray in aid the gravity of the proceedings as indicating that it is necessary in the interests of justice for the experts to attend the hearing in these proceedings.[29]It is acknowledged that these are public law family proceedings under Part IV of the Children Act 1989 and are concerned with the question of State intervention in family life. It is beyond dispute that the proceedings are of the utmost importance to the subject child and to the parents. It is likewise beyond dispute that, where the proceedings concern the circumstances leading to the serious injury or death of a child and may lead to the permanent removal of a child from the family, they are proceedings of the utmost gravity. It likewise cannot be disputed that the proceedings have potentially lifelong consequences for the child and for the mother and the father. These matters are unlikely, however, of and in themselves to render the attendance of the experts necessary in the interests of justice.[30]Every case brought under Part IV of the Children Act 1989 will be concerned with State intervention in family life. For the individual family concerned, every set of care proceedings will be of the utmost importance to the child or children and to their family. In circumstances where the threshold under Part IV of the Act is that of significant harm, all such cases will involve issues of gravity. Given the powers available to the court where the satisfaction of the threshold opens the jurisdictional door to making orders under Part IV of the Act, which may presage orders under the Adoption and Children Act 2002, all such cases carry with them potentially lifelong consequences for the child and family. If these matters were capable in themselves of necessitating the attendance of experts in the interests of justice, then permission would require to be granted in every set of proceedings under Part IV of the Children Act 1989 in which expert evidence is adduced. Whilst relevant to evaluating the question of proportionality, the threshold of necessity in the interests of justice in FPR r.25.9(2) will not likely be achieved only by virtue of the fact that the court is dealing with public law proceedings under Part IV of the Children Act 1989 involving very serious or fatal injury to a child.[31]The parties to these proceedings also rely on Art 8 of the ECHR as supporting the necessity of the attendance of the experts in the interests of justice. The submission that the fact that the proceedings may result in an interference in the Art 8 rights of the child and/or parents makes it necessary in the interests of justice for the experts to attend is a different form of the argument that the nature of family proceedings drives the answer to the question asked by FPR 2010 r.25.9(2), and hence is addressed by the reasoning in the previous paragraph in circumstances where all care proceedings will engage rights under the ECHR. The fact that proceedings may result in a final order that interferes with the Art 8 right of the parents and the child will likewise not constitute a reason in itself for permitting the attendance of an expert. No party seeks to contend that FPR r.25.9(2) is incompatible with Art 8, or with Art 6, of the ECHR or seeks a declaration to that end.[32]When deciding whether it is necessary in the interests of justice for the expert to attend the hearing, the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein will not be without relevance. However, whilst these may be factors to be taken into account depending on the facts of an individual case, the question of whether it is necessary in the interests of justice for the experts to attend the hearing will turn, primarily, on the content of expert evidence in question, considered in the context of the Overriding Objective in FPR Part 1 and the provisions of FPR Part 25, the importance in certain cases of the role of challenging evidence to ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, rather than on general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se.[33]As submitted by the parents, the test of necessity in FPR r.25.9(2) will fall to be applied in the context of the requirements of the FPR 2010 as a whole, in so far as they apply to children proceedings. In R v A Local Authority and Others [2012] 1 FLR 1302, Sir Nicholas Wall confirmed that the judge’s control over expert evidence must be exercised by reference to the Overriding Objective in Part I of the FPR 2010. This observation applies with equal force to the application of r.25.9(2) when deciding whether to permit the attendance of an expert. FPR r.1.1 provides as follows:
“1.1 The overriding objective (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. (2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”
[34]The test of necessity in the interests of justice also falls to be considered in the context of the provisions of FPR Part 25 as a whole, and in particular the ability of the parties to put questions to the expert in writing (FPR 2010 r.25.10) and the ability of the court to direct a meeting of the experts (FPR r.25.16).[35]The parents submit that the terms of FPR 2010 r.25.10 reinforce the need for the expert to attend in circumstances where FPR 2010 r. 25.10(2)(d) limits questions to those of clarification, the FPR 2010 not providing for cross-examination in writing. However, the requirement in FPR 2010 r.25.10(2)(d) that questions must be for the purpose only of clarification of the report is subject to the power of the court in FPR 2010 r.25.10(2) to direct otherwise. Within the context of the similar provision in CPR r.35.6, in Mutch v Allen [2001] EWCA Civ 76 endorsed the asking of questions in civil proceedings going beyond clarification, and encompassing questions that would also be legitimately put in cross-examination, where to do so will assist in resolving issues in accordance with the Overriding Objective and will cut down the need for attendance of experts.[36]As set out above, in addition to the use of written questions by the parties to interrogate the expert evidence, FPR 2010 r.25.16 permits the court, at any stage, to direct a discussion between the experts. With respect to the ability of the court to direct a meeting of the experts, in Daniels v Walker [2000] 1 WLR 1382 at 1388, the Master of the Rolls stated, in the context of similar provisions in the CPR, that with respect to the timing of the decision to permit the attendance of the expert:
“That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions.”
[37]In circumstances where the test in FPR r.25.9 is whether it is necessary in the interests of justice for the expert to attend the hearing, in determining whether that test in FPR r.25.9(2) is met the importance, in certain cases, of the role of challenging evidence in ensuring a fair hearing must also be borne in mind.[38]As Lieven J observed in X v Y [2023] EWHC 3170 (Fam), there is no right under Art 6 in proceedings in the Family Court to cross examine a witness. Against this, and whilst it has been doubted that the Art 6 rights of the parties add anything to the analysis when considering directing the attendance of an expert witness in civil proceedings under the CPR absent any submission that the relevant provisions are incompatible with the ECHR (see Daniels v Walker at 1386 and 1387), the court’s case management powers must be exercised in a manner consistent with the parties’ rights under Art 6. In this context, the Court of Appeal has made clear that in children proceedings the court’s powers under FPR 2010 to control and exclude evidence must be exercised so as to ensure that the parties are not “denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome” (see Re S-W (Children) [2014] EWCA Civ 27 at [58]).[39]The opportunity “to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome” as a central element of a fair trial, as articulated by Sir James Munby in Re S-W (Children),can be traced through a long line of authority running through the decision of the House of Lords in Browne v Dunn (1894) 6 R 67 and concluding most recently with the decision of the Supreme Court in Tui UK Ltd v Griffiths [2023] UKSC 48. Those decisions bracket the judgments of the Judicial Committee of the Privy Council in Chen v Ng [2017] UKPC 27 and of the Court of Appeal in Re B (A Child) [2018] EWCA Civ 2127.[40]In Chen v Ng, relying on Browne v Dunn, In which Lord Herschell stated that “it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.” the Privy Council held that whether a trial judge was wrong to reject the evidence of a witness on grounds that were not put to that witness in cross-examination will turn on whether the trial, viewed overall, is fair. In evaluating in this context whether the trial, viewed overall, is fair, the Lord Neuberger and Lord Mance set out five factors that will assist:
“[55] At a relatively high level of generality, in such a case an appellate court should have in mind two conflicting principles: the need for finality and minimising costs in litigation, on the one hand, and the even more important requirement of a fair trial, on the other. Specific factors to be taken into account would include the importance of the relevant issue both absolutely and in the context of the case; the closeness of the grounds to the points which were put to the witness; the reasonableness of the grounds not having been put, including the amount of time available for cross-examination and the amount of material to be put to the witness; whether the ground had been raised or touched on in speeches to the court, witness statements or other relevant places; and, in some cases, the plausibility of the notion that the witness might have satisfactorily answered the grounds.”
[41]In Re B (A Child) Lord Justice Peter Jackson, citing the decision of the Privy Council in Chen v Ng, held as follows with respect to whether a case can be said to have been sufficiently put to a witness such that the hearing is, viewed overall, fair: “[18] In assessing fairness, what is important is substance not form. The question of whether an adverse case has been sufficiently put to a witness is likely to be informed by the five factors set out in Chen at [55]. It is case-specific and rooted in the real world of litigation in which overall fairness can be achieved in a range of ways. In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point; if a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting the evidence should be rejected: see Phipson on Evidence 19th ed. 12.12. However, the rule is not an absolute one, and there will be cases in which it will be pointless to put formal challenges to a witness who knows perfectly well that his or her evidence is disputed, and where the challenge could in reality go no further than "I put it to you that you are lying”.[42]In Tui UK Ltd v Griffiths a claimant holiday maker sued a travel company alleging that he had suffered a serious stomach upset that had left him with long term difficulties. The claimant relied on his own evidence and expert evidence that his stomach upset had, on the balance of probabilities, been the result of food and drink at the hotel. The expert in question was asked questions in writing but the Defendant did not require his attendance at the hearing. In the circumstances, the court had before it the report of the expert and his answers to the written questions. The court accepted the defendant’s submission that deficiencies in the expert’s report meant that the claimant had failed to prove his case on the balance of probabilities. In considering whether the trial judge was entitled to find that the claimant had not proved his case when the claimant’s expert had given uncontroverted evidence as to the cause of the illness, which was not illogical, incoherent or inconsistent, based on any misunderstanding of the facts, or based on unrealistic assumptions, but was criticised as being incomplete in its explanations and for its failure expressly to discount on the balance of probabilities other possible causes of the claimants’ illness, the Supreme Court articulated the questions that arose as follows:
“[34] The principal questions raised on this appeal are: (i) what is the scope of the rule, based on fairness, that a party should challenge by cross-examination evidence that it wishes to impugn in its submissions at the end of the trial? (ii) in particular, does the rule extend to attacks in submissions on the reliability of a witness’s recollection and on the reasoning of an expert witness? and (iii) if the rule does so extend, was there unfairness in the way in which the trial judge conducted the trial in this case?”
[43]In addressing these questions, the Supreme Court cited what it described as the long established rule in Phipson at paragraph 12.12 that had been referred to by Peter Jackson LJ in Re B (A Child) and which reflects the decision of the House of Lords in Browne v Dunn:
“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position.”
[44]Within the context of the rule set out in Phipson at paragraph 12.12, the Supreme Court concluded as follows on the questions it had articulated in Tui UK Ltd v Griffiths at [34]:
“70. In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions: (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”
[45]The circumstances in which the rule that, in general, a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point may not apply were articulated by the Supreme Court at [61] to [68] as follows: i) The matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain. A challenge to a collateral issue will not result in unfairness to a party or interfere with the judge’s role in the just resolution of a case; and a witness in such a circumstance needs no opportunity to respond if the challenge is not an attack on the witness’s character or competence. ii) The evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference. iii) There may be a bold assertion of opinion in an expert’s report without any reasoning to support it, as distinct from reasoning which appears inadequate and is open to criticism for that reason. iv) There may be an obvious mistake on the face of an expert report where the report is ex facie illogical or inherently inconsistent. v) Where the witnesses’ evidence of the facts is contrary to the basis on which the expert expressed his or her view in the expert report. vi) Where expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify his or her report. For example, if an expert faces focused questions in the written CPR Pt 35.6 questions of the opposing party and fails to answer them satisfactorily, a court may conclude that the expert has been given a sufficient opportunity to explain the report which negates the need for further challenge on cross-examination. vii) Where there has been a failure to comply with the requirements of CPR PD 35 may be a further exception, although this will depend upon the seriousness of the failure.[46]The decision in Tui UK Ltd v Griffiths can, self-evidently, be distinguished from the present case on a number of bases. It concerns civil proceedings under the CPR, not family proceedings under the FPR. The Supreme Court reached its conclusion in the context of it being “trite law that English law operates an adversarial system”. That is not a strictly accurate description of public law proceedings under the Children Act 1989, which have long been described as quasi-inquisitorial. Against this, the relevant parts of CPR Part 35 and FPR Part 25 are similarly worded provisions. Further, the Supreme Court cited with approval at [42] the approach of the Court of Appeal in Re B (A Child),in which the Court of Appeal was dealing with proceedings under Part IV of the Children Act 1989 in a case of alleged non-accidental injury. Within this context, I am satisfied that the court must have regard to the foregoing principles articulated by the Supreme Court in the current context.[47]Importantly, Tui UK Ltd v Griffiths and each of the decisions referred to above emphasise that the general rule that a party is required to challenge by cross-examination the evidence of any witness on a material point which that party wishes to submit should not be accepted by the court is not a rigid one. The overarching question remains whether, viewed overall, the hearing is fair. FPR r.25.9(2) reflects this position in providing that the question of whether an expert attends the hearing falls to be decided by reference to the test of whether such attendance is necessary in the interests of justice. As Peter Jackson LJ stated in Re B (A Child), what is important is substance not form.[48]Finally, and as submitted by the parents, in deciding whether it is necessary in the interests of justice for the experts to attend the hearing, the court will also need to bear carefully in mind the directions it must give itself with respect to the approach the court is required to take when evaluating the evidence it has heard in proceedings under Part IV of the Children Act 1989. The correct approach was summarised by Dame Elizabeth Butler-Sloss P in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at [33]:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
[49]Within this context, in determining whether it is necessary for the expert to attend the hearing, the relationship between expert medical evidence and the other evidence before the court must also be held in mind, as described by Peter Jackson LJ in Re R (Children: Findings of Fact) [2024] EWCA Civ 153 at [34]:
“...It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other.”
[50]In the foregoing circumstances, in determining an application under FPR r.25.9(2) I am satisfied that the court should maintain an intense focus on the content of the expert evidence, considered in the context of the Overriding Objective in FPR Part 1, the provisions of FPR Part 25 as a whole, the importance in certain cases of the role of challenging evidence to ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, rather than on general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se. In some cases the court will conclude that it is not necessary in the interests of justice for the expert to attend. In some cases it will be necessary. Each case will turn on its own facts having regard to the test set out in FPR 25.9(2).[51]I have not omitted to consider the submission made by the parents that one of the matters that will render it necessary in the interests of justice for the experts to attend the hearing in this case is a parent’s wish for the attendance of the expert witness for cross-examination, absent which that parent would feel a sense of injustice and consider that they had not a fair hearing. This is a difficult issue. Given the need to apply the terms of FPR r.25.9 in the context of the Overriding Objective in FPR r.1 and the need for the court to avoid delay pursuant to s.1(2) of the Children Act 1989, it might be said that, applied in that context, the test in FPR 2010 r.29.2 cannot be satisfied simply by the desire of a parent to have an expert cross-examined, particularly where there is no proper forensic basis for doing so. Against this, in In Re CB and JB (Care Proceedings: Guidelines) Wall J (as he then was) recognised that there must be a fair hearing, and parents who stand at risk of losing their children should not feel that they are being wrongly limited in the way they put their case, even where the experts are in agreement.[52]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.”
[53]To reiterate, each case will turn on its own facts. Within that context, a further issue was illuminated during the course of submissions. Namely, the degree of investigation required in order for the court to determine whether, pursuant to FPR r.25.9(2), a direction for the attendance of the expert is necessary in the interests of justice.[54]Mr Momtaz submits that it would defeat the efficient case management of proceedings if the court was required to examine the expert evidence in “granular detail” before deciding whether it is necessary in the interests of justice for the expert to attend the hearing. I agree. Plainly, the case management decision as to whether it is necessary in the interests of justice for the expert to attend cannot be allowed to become a dress rehearsal of the forensic examination of the expert evidence at the hearing. Evaluating whether it is necessary in the interests of justice for the expert to attend the hearing will not require, for example, a question by question analysis of a party’s intended cross-examination.[55]Provided care has been taken to identify the issues in the case the court truly needs to resolve, in most cases it should be readily apparent from a close reading of the expert evidence whether, having regard to the test of necessity as articulated above, the interests of justice require the attendance of the expert. As I have set out, what is required is an acute focus on the contents of the expert evidence by reference to the issues falling to be determined in the case and in the context of the Overriding Objective, the provisions of FPR Part 25 as a whole, the importance in some cases of the role of challenging evidence in ensuring the fairness of the hearing and the overall task of the court in assessing the evidence before it.[56]Questions likely to be at the forefront of the court’s mind when deciding whether it is necessary in the interests of justice to direct the attendance of the experts are(i) the extent to which the expert evidence is relied on,(ii) the extent to which the expert evidence is disputed,(iii) whether the parts of the expert evidence that are disputed are central to determination of the issues the court must decide,(iv) the degree of consensus or disagreement between the instructed experts,(v) whether it is possible fairly to deal with the points of dispute in writing without the attendance of the expert,(vi) whether the expert evidence deals with a particularly novel or controversial area or an area where there is a lack of scientific consensus or rapidly evolving research,(vii) whether expert evidence suggests that a dogmatic approach has been taken by an expert or that the reputation or amour propre of the expert is at stake,(viii) what other evidence is available to the court relevant to determining the issues before it,(ix) the position of the party against whom allegations are made and(x) whether the opportunity to challenge the expert evidence is necessary to ensure the overall fairness of the hearing. This is not an exhaustive list.[57]It is important to remember that the case management decision with respect to the attendance of the expert is not simply a binary one of attendance or no attendance. Where attendance is permitted as being necessary in the interests of justice, further matters of case management will fall to be dealt with by the court. The expert should be given advance notice of the topics to be covered in cross examination and any fresh evidence (Popek v National Westminster Bank plc [2002] EWCA Civ 42 applying dicta in Peet v Mid-Kent NHS Trust [2002] 1 WLR 210 and see R v R [2002] EWCA Civ 409 at [18]). Where the court does permit the attendance of an expert the court may impose a strict time limit for cross-examination (Re T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 52) or specify the topics to be dealt with. In R v R at [22] Chadwick LJ observed as follows in a case concerning the attendance at trial of an expert medical witness:
“There is no conflict between the need to cross-examine with restraint and the ability to cross-examine effectively. Effective cross examination can explore and expose those areas of written evidence which are based on assumption rather than fact, on speculation rather than conviction, without trespassing beyond the boundaries imposed by reasonable restraint.”
[58]Drawing these threads together, it is possible to divine some general principles that will be applicable in each case a court is required to decide under FPR r.25.9(2) whether it is necessary in the interests of justice to direct the attendance of the expert: i) The general rule is that expert evidence is to be given in writing pursuant to FPR 2010 r. 25.9(1). This is not simply a requirement for the expert to provide their report in writing, but the general rule as to how evidence will be given at the hearing by an expert in family proceedings, including proceedings under Part IV of the Children Act 1989. Namely, in writing rather than orally unless the test of necessity in the interests of justice is met. ii) In the first instance the appropriate way of interrogating the written expert evidence is in writing pursuant to FPR 2010 r. 25.10. With the court’s permission, and where appropriate and consistent with the Overriding Objective, questions in writing may extend beyond simply clarification of the expert report. iii) Where appropriate, the court may also direct discussion between the experts pursuant to FPR 2010 r.25.16 to define and refine areas of agreement and disagreement between the experts. iv) It is to be anticipated that, in a proportion of cases, the process for written questions under FPR 2010 r.25.10 and discussion between the experts under FPR 2010 r. 25.16 will render it unnecessary to direct the attendance of the expert at the final hearing. v) Pursuant to the terms of FPR r.25.9(2), the attendance of the expert at the final hearing will only be directed where it is necessary to do so in the interests of justice. vi) Where a party seeks the attendance of the expert at the hearing, following the putting of any written questions and any experts meeting that party should make an application for a direction to that effect by way of Form C2, setting out the reasons why it is said that such attendance is necessary in the interests of justice. vii) In determining whether it is necessary in the interests of justice to direct the attendance of the expert, an intense focus on the content of the expert evidence by reference to the issues before the court, undertaken in the context of the Overriding Objective in FPR Part 1, the provisions of FPR Part 25, the importance in certain cases of the role of challenging evidence in ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, will determine necessity in the interests of justice, rather than general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se. The fact that all parties agree that the expert should attend the hearing will not be determinative. viii) In applying the test of necessity in the interests of justice, questions likely to be at the forefront of the court’s mind are(a) the extent to which the expert evidence is relied on,(b) the extent to which the expert evidence is disputed,(c) whether the parts of the expert evidence that are disputed are central to determination of the issues the court must decide,(d) the degree of consensus or disagreement between the instructed experts,(e) whether it is possible fairly to deal with the points of dispute in writing without the attendance of the expert,(f) whether the expert evidence deals with a particularly novel or controversial area or an area where there is a lack of scientific consensus or rapidly evolving research,(g) whether expert evidence suggests that a dogmatic approach has been taken by an expert or that the reputation or amour propre of the expert is at stake,(h) what other evidence is available to the court relevant to determining the issues before it,(i) the position of the party against whom allegations are made and(j) whether the opportunity to challenge the expert evidence is necessary to ensure the overall fairness of the hearing. This is not an exhaustive list. ix) Where attendance and cross examination is permitted, the expert should be given advance notice of the topics (not the questions) to be covered and of any fresh evidence. x) Where the court does permit the attendance for cross examination of an expert the court may impose a strict time limit for cross-examination and specify the topics to be dealt with.[59]Applying these principles to the current case, I am satisfied that it is necessary in the interests of justice to direct the attendance at the hearing of Drs Hogarth, Jayamohan, Olsen, Ward, Saggar and Brockelsby. The parties do not seek the attendance of Drs Keenan and Ratnam, and I am satisfied that their attendance is not necessary in the interests of justice.[60]The parents seek to challenge the expert evidence and to submit that the court should not give it weight when reaching its decision on the allegations levelled against the parents by the local authority, upon whom the burden of proof rests. What is described as the mother’s “primary case” is that none of the injuries seen in L are non-accidental in nature. If the court finds that the injuries are non-accidental in origin, then the mother denies causing those injuries. In that context she accepts that, as a matter of logic, the father may have done so. The father likewise denies that the injuries are non-accidental and that he caused them. In the circumstances, in addition to the parents challenging the conclusions of the experts as to causation per se, questions of timing and post-injury reaction are likely be relevant to the advancement of the parents’ respective cases on the allegations made against them in the event that the court finds the injuries to L were non-accidental in nature.[61]In this case, the expert evidence is central to the case advanced by the local authority. The threshold as pleaded by the local authority pursuant to s.31(2) of the Children Act 1989 relies heavily on the conclusions of the experts in the case. Moreover, the local authority relies on the expert evidence as a coherent whole when submitting the court can attach weight to it. Having regard to well established principles, the court will be required to examine the relevance of each piece of lay and medical evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case against the parents put forward by the local authority has been made out on the balance of probabilities. In the circumstances, and in the context of the centrality of the expert evidence to the local authority’s case regarding the injuries sustained by L, it is clearly the case that the disputed elements of the expert evidence are central to determination of the issues the court must decide. Within this context, whilst there is a significant degree of consensus between the experts instructed in this case, and whilst the expert evidence does not concern a particularly novel or controversial area or one in which there is a lack of scientific consensus, the expert evidence is not without relevant caveats.[62]For example, Dr Hogarth notes that the scans cannot distinguish whether the signal observed was caused by a cortical contusion or an area of overactive cortex firing off and causing seizures. He further notes that it is quite unusual, clinically, to see cortical restricted effusion in seizures. As recorded above, he also considers the cavity in the left inferior frontal lobe cannot be excluded as the legacy of an earlier injury or a birth-related lesion. Dr Jayamohan notes that the exact start of the brain dysfunction progression in L was not clear, indicating some uncertainty about the precise timing of the injuries. With respect to Dr Olsen there is a difference of opinion between him and the treating clinicians regarding the provenance of the fluid in the abdomen and Dr Olsen accepts that his conclusion in this regard is based on the typical presentation in an intensive care setting. Dr Olsen also acknowledges that while shaking could be a relevant mechanism for the acromial fracture, it was also possible that seizures could cause sufficient muscle contraction to break off the tip of the acromion.[63]By way of further example, Dr Ward emphasises that head injury may present with a wide range of symptoms, introducing variability in how L’s injury might manifest. Dr Ward’s suggestion that it is possible that there was more than one incident of injury within the twenty-four-hour period, or possibly earlier, introduces some uncertainty regarding the exact timing and number of injurious events as against other experts who posit a single incident. Whilst he contends that, taken alone, it does not indicate a significant connective tissue disorder, Dr Saggar acknowledges that the mother scored 5/9 on the Beighton scale (a measure of joint hypermobility). Dr Saggar highlights the existence of six genetic variants of unknown clinical significance were identified in the genetic testing of L. These variants are not currently associated with any known disorders, but their significance could change with future research. Whilst the submissions of Ms Brown on behalf the local authority gave me greater pause with respect to Dr Brocklesby, during his oral submissions Mr Storey pointed to Dr Brocklesby’s description of birth injuries as “theoretical”, which he contends is not consistent with the latest research and that, likewise, Dr Brocklesby’s view that subdural haematomas associated with delivery are normally found within the posterior aspect of the cranium does not reflect current scientific understanding. Other matters that counsel submit form the basis of a legitimate challenge to the expert evidence, including the absence in this case of the so called ‘triad’ in the context of an allegation of non-accidental head injury, the presence of an arachnoid cyst, thrombosed veins and haemangiomas.[64]Having regard to centrality of the expert evidence to the case against the parents advanced by the local authority and in circumstances where parents who are said by the local authority to have caused the injuries are entitled to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome of the proceedings, I am satisfied that the foregoing matters form a proper basis for challenge, particularly in the context of determining the question of perpetrator should the court conclude that the injuries were non-accidental in nature.[65]For the reasons I have given, and in circumstances where experts are utilised in a wide range of family proceedings beyond cases of non-accidental head injury, it is to be anticipated that in a proportion of cases the process for written questions under FPR 2010 r.25.10 and discussion between the experts under FPR 2010 r. 25.16 will render it unnecessary to direct the attendance of the expert at the final hearing, or will at the very least significantly narrow the issues to be addressed orally. However, given the nature of the issues in this case and the complexity of the disputed medical evidence, I am further satisfied that it would not be possible or, more importantly, fair to encompass the totality of the parents’ challenge to the experts’ evidence by way of written questions.[66]In the foregoing circumstances, I am satisfied that in this case the opportunity for the parents to challenge the expert evidence of Drs Hogarth, Jayamohan, Olsen, Ward, Saggar and Brockelsby is necessary to ensure the overall fairness of the hearing. In those circumstances, I conclude that it is necessary in the interests of justice to direct the attendance of those experts at the hearing. It is further apparent from the joint Skeleton Argument of the parents that each of the issues which will fall for cross-examination are very well circumscribed. In these circumstances, it is likely that the cross-examination of the experts will be capable of being dealt with in short order.

CONCLUSION

[67]I direct the attendance, at the hearing which determines the facts pleaded by the local authority, of Drs Hogarth, Jayamohan, Olsen, Ward, Saggar and Brockelsby as being necessary in the interests of justice for the purposes of FPR r.25.9(2).[68]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.[69]Finally, the principle that the attendance of an expert in family proceedings is to be permitted only where it is necessary in the interests of justice is not a new development. It has been a key part of the Part 25 regime governing experts in family law for well over a decade and a recognised case management principle for much longer. Placed in its wider context, the principle is consistent both with the statutory requirement in the Children Act 1989 s.1(2) to avoid delay that is inimical to the child’s welfare and the statutory requirement in s.32 of the Children Act 1989 to complete proceedings under Part IV of the Children Act 1989 within 26 weeks. That position is grounded firmly in the principle on which the Family Court maintains an unerring focus. That of the best interests of the child. The unnecessary attendance of an expert uses up court time that could otherwise be utilised to reduce the delay experienced by another vulnerable child or young person who is becalmed in the family justice system, awaiting the outcome of their care proceedings and subject to the caustic effect of that delay.

Cited in 1 later judgment