H-L (A Child), Re

Under rule 25.1 of the Family Procedure Rules 2010, expert evidence is admissible only where it is necessary to assist the court to resolve the proceedings. Necessary denotes an imperative need. It is a substantially higher threshold than evidence which is merely useful, reasonable or desirable.

A tightly limited expert instruction may be necessary where a central issue cannot be authoritatively addressed by the available treating clinician. The Court of Appeal will, however, be slow to interfere with a trial judge’s assessment of whether further expert evidence is necessary.

In care proceedings concerning H-L, a young child with a rare genetic disorder, the mother sought permission to instruct a geneticist, a haematologist and a paediatrician. The proposed evidence concerned whether the child’s condition could make her more susceptible to bruising and related issues arising from unexplained bruising.

His Honour Judge Simon Wood refused all three applications on 27 February 2013. The mother appealed. During the appeal, medical records confirmed the child’s precise diagnosis and the proposed geneticist became available to answer a small number of targeted questions within the existing timetable.

The central issue was whether the proposed expert evidence was necessary under rule 25.1 of the Family Procedure Rules 2010.

1. Appeal allowed in part. The court permitted the instruction of the geneticist, Dr Turnpenny, but only for a targeted paper exercise addressing a small number of questions of principle. The appeal was dismissed as to a haematologist and a paediatrician.
2. Rule 25.1 of the Family Procedure Rules 2010 permits expert evidence only where it is necessary to assist the court to resolve the proceedings. Applying Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, the court held that necessity lies between indispensable and merely useful, reasonable or desirable. It denotes what is imperative rather than optional.
3. The new rule imposes a materially stricter threshold than the former test of evidence reasonably required to resolve proceedings. The court applied the case-management principles in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5.
4. The genetic issue was central. The available opinion had been conveyed through a clinician who candidly lacked relevant experience and could not take the point further if challenged. A limited, prompt instruction of the specialist able to give authoritative answers was proportionate and necessary. It also avoided a potential deficiency in procedural fairness under Article 6 of the European Convention on Human Rights and the overriding objective.
5. The judge was entitled to refuse the other two experts. There was no sufficient evidential basis for further haematological or paediatric evidence. The assessment of necessity is primarily for the trial judge, and an appellate court should interfere with such case-management decisions only rarely.
6. The court also reiterated the need to distinguish treating clinicians from instructed experts, to seek focused third-party disclosure promptly, and to determine interlocutory family appeals with the utmost despatch.

• Court of Appeal (Civil Division): Allowed the mother’s appeal in the limited respect of a targeted instruction of the geneticist; otherwise dismissed the appeal.
• Newcastle-upon-Tyne County Court: His Honour Judge Simon Wood refused permission to instruct a geneticist, haematologist and paediatrician in the care proceedings on 27 February 2013.