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

Introduction

Handed down 3rd June 2025

In this case, Mr Justice MacDonald delivered judgment addressing the procedure and circumstances in which expert witnesses may be required to attend court to give oral evidence in family law proceedings. 

This care proceedings matter involved allegations of non-accidental injury (NAI) including  abdominal trauma, bruising and traumatic brain injury. A number of expert witnesses were jointly instructed to provide opinions on the likely cause of the injuries. All concluded that the injuries sustained were consistent with inflicted injuries, rather than as a result of any medical condition or birth-related issue though their written reports do raise some areas of uncertainty.

The parents, supported by the children’s guardian, applied under Family Procedure Rule (FPR) r.25.9(2) for a direction requiring six of the jointly instructed experts to attend a hearing to give oral evidence, both parents (separately) denying that the injuries sustained were  inflicted and if found to be, both denying being the perpetrator. It was submitted on their behalf that the asking of questions and the meeting of experts provided for clarity only and that the experts should attend to give evidence to allow the opportunity to properly challenge conclusions. In addition to Article 8 rights, it was stated that such a direction was in accordance with the overriding objective and indeed, necessary. The local authority, relying heavily on the conclusion of the experts in threshold,sought for four of the six experts to attend to give evidence considering that the evidence of those experts only, was necessary to resolve proceedings justly.

MacDonald J considered the application in accordance with Rule 25 Family Procedure Rules 2010 (FPR), the Children and Families Act 2014 and relevant case law, notably Re TG Care Proceedings: Case Management: Expert Evidence) [2013] 1 FLR 1250, Re M (Intermediaries) [2025] EWCA Civ 440, Merton London Borough Council v K; Re K (Care: Representation: Public Funding) [2005] 2 FLR 422 and Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211. 

With regards to procedure, MacDonald J opined that a C2 application was the proper format for parties to advance their argument for the attendance of experts, citing FPR  r25.9(1). 

He confirmed that the test under FPR r.25.9(2) is not whether attendance is exceptional, but whether it is ‘necessary in the interests of justice’ and made clear that the test is to be applied on the facts of the case in question.

Judgment

The judgment emphasises that the default mechanisms for resolving expert disagreement remain written questions (FPR r.25.10) and experts’ meetings (FPR r.25.16). In this instance, the court found that neither written questions nor joint meetings had been sufficient to address the material divergences in expert opinion. Oral examination was necessary to allow proper scrutiny of the evidence.

Ultimately, the court granted the application  and directed that six experts, as sought by the parents and on behalf of the child should attend the hearing to give oral evidence. In doing so, Macdonald J cited a non-exhaustive list of key questions that the court should ask itself when considering necessity – 

(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 decided

(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 judgment reinforces the importance of expert evidence in complex family law cases while emphasising that the test under FPR r.25.9(2) remains a straightforward one: whether oral attendance is necessary in the interests of justice. While there is no automatic right to call experts, equally, there is no need to show exceptional circumstances to justify doing so. Macdonald J in conclusion states ‘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’.

Written by Emily Henshaw, Consultant Barrister

Law is correct as of 29th July 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.