In the context of a family case in which a mother was accused of inflicting non-accidental injuries on her disabled daughter, the Court of Appeal has stressed that, under a recent change to family procedure rules, expert evidence may only be adduced in such cases where it is ‘necessary’ to assist the court in the resolution of the proceedings.
Before the more stringent test of necessity was introduced, rule 25.1 of the Family Procedure Rules 2010 had permitted expert evidence to be adduced in family cases where it was ‘reasonably required’ to achieve justice.
Giving guidance to practitioners on the correct application of the re-drafted rule, the court observed that ‘necessary’ should be interpreted as an ordinary English word carrying ‘the connotation of the imperative’. In the context of rule 25.1, it should be given a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other.
Emphasising the need to re-assure family judges in the ‘robust but fair’ exercise of their case management powers, the President of the Family Division, Sir James Munby, noted that the Court of Appeal will only very rarely intervene in such matters.
In the instant case, the mother had applied to adduce evidence from three expert witnesses in support of her case that her child’s injuries were attributable to her rare genetic disorder and had wrongly been diagnosed as non-accidental. That application was dismissed by a family judge conducting a fact-finding hearing.
In allowing the mother’s appeal in part, the court noted that the evidence of one of the mother’s proposed experts went to the central medical issue in the case and that other medical professionals due to testify had had previous involvement with the child’s care. The court granted leave for that single expert to provide short answers to key matters of principle within a very tight timetable.