The importance of knowing, and complying with, the rules relating to the presentation of expert evidence

A family court case considering various applications relating to residence and travel of a teenage girl.  For one of the issues (the risk of the girl entering a forced marriage). an application for a “full psychological assessment” of the family was made.  An expert was instructed, Dr X (the names are anonymised). However, Dr X was an eminent academic psychologist and not a clinical psychologist. Further the report did not comply with the relevant rules or Practice Directions.

In relation to expert evidence the judge clearly acknowledged the expert’s expertise and also made clear that they acted in good faith in carrying out their assessment and in giving evidence. However:

“In oral evidence Dr X confirmed that they had only completed ‘four or five’ reports for the Family Court and they were not familiar with the provisions of the Practice Direction. This latter confirmation is unacceptable. It is a core duty of any expert instructed in proceedings of this sort to read instructions, to read all documents and to be familiar with the applicable rules and practice directions. I am satisfied from considering the letter of instruction that these were sent to Dr X and that Dr X was directed to them at the outset of their instruction (although it would have been better if the letter had been more specific rather than incorporating by reference to an annex). In my view, the absence of a correct declaration should have been a red flag to the lawyers in the case which should have prompted query or further scrutiny. The court is entitled to expect that experts will read their instructions properly and be familiar with the basic expectations that the family court has of experts working in this field.”

“Although in the end, I have been able to make use of Dr X’s expertise and to reach sound decisions in this case, in another case the collective failure to identify what the report did not provide could have led to poor decision making or further delay in reaching a decision – because Dr X’s expertise was not a good match for all of the wide-ranging questions posed.”

The full judgement is very clear and detailed in clarifying the uncomfortable situation the judge was put in. The following quotes are just a few highlights and make sober reading. We strongly recommend reading the parts on expert evidence of the judgement in full (link below).

“Pursuant to para 4.1 of PD25B it is the duty of an expert in children proceedings (amongst other things):

1. to comply with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to this Practice Direction
2. to answer the questions about which the expert is required to give an opinion
3. to confine the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert’s expertise (skill and experience);
4.  where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved.