England and Wales High Court (Family Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWHC/Fam/1990/1.html
Cite as: [1991] Fam Law 303, [1990] EWHC Fam 1, [1991] 1 FLR 291

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		BAILII Citation Number: [1990] EWHC Fam 1
		Case No:

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

27 July 1990

B e f o r e :

Cazalet J
____________________

Between:

RE R (A MINOR) (EXPERTS' EVIDENCE)

____________________

Jeremy Posnansky for the plaintiffs
Nicholas Wall QC and N Cullworth for the defendants
The names of instructing solicitors are omitted in the interest of preserving anonymity for the parties.
____________________

HTML VERSION OF JUDGMENT
____________________

CAZALET J: I have already made orders in chambers in regard to the issues arising in this case. In addition, I have thought it appropriate to adjourn into open court, in order to give a general indication of the criteria which are applicable to the preparation of the reports of expert witnesses to be called in child cases. In stating these criteria I am most grateful to counsel for their helpful submissions.

Expert witnesses are in a privileged position; indeed, only experts are permitted to give an opinion in evidence. Outside the legal field the court itself has no expertise and for that reason frequently has to rely on the evidence of experts. Such experts must express only opinions which they genuinely hold and which are not biased in favour of one particular party. Opinions can, of course, differ and indeed quite frequently experts who have expressed their objective and honest opinions will differ, but such differences are usually within a legitimate area of disagreement. On occasions, and because they are acting on opposing sides, each may give his opinion from different basic facts. This of itself is likely to produce a divergence.

The expert should not mislead by omissions. He should consider all the material facts in reaching his conclusions and must not omit to consider the material facts which could detract from his concluded opinion.

If experts look for and report on factors which tend to support a particular proposition or case, their reports should still:

(a) provide a straightforward, not a misleading opinion;

(b) be objective and not omit factors which do not support their opinion; and

(c) be properly researched.

If the expert's opinion is not properly researched because he considers that insufficient data is available, then he must say so and indicate that his opinion is no more than a provisional one.

In certain circumstances an expert may find that he has to give an opinion adverse to his client. Alternatively, if, contrary to the appropriate practice, an expert does provide a report which is other than wholly objective - that is one which seeks to 'promote' a particular case - the report must make this clear. However, such an approach should be avoided because, in my view, it would: (a) be an abuse of the position of the expert's proper function and privilege; and (b) render the report an argument, and not an opinion.

It should be borne in mind that a misleading opinion from an expert may well inhibit a proper assessment of a particular case by the nonmedical professional advisers and may also lead parties, and in particular parents, to false views and hopes.

Furthermore, such misleading expert opinion is likely to increase costs by requiring competing evidence to be called at the hearing on issues which should in fact be non-contentious.

In wardship cases the duty to be objective and not to mislead is as vital as in any case because the child's welfare, which is a matter of extreme importance, is at stake, and his/her interests are paramount. An absence of objectivity may result in a child being wrongly placed and thereby unnecessarily put at risk.

In almost all cases there is likely to be a reduction in the scale of scientific issues and a consequential saving in costs, if arrangements are made for the experts on each side to discuss together their reports in advance of the hearing. Parties in wardship proceedings have a responsibility to see that such arrangements are, if possible, made. RSC Ord. 38, r. 38 is available, if required, to assist in achieving this end.

ROBERT STEVENS

Barrister

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