"(This is a note of the guidance given by the judge on the preparation of reports and the giving of evidence by expert witnesses in cases concerning the welfare of children)

[1991] 1 FLR 291

RE R (A MINOR) (EXPERTS' EVIDENCE)

Family Division
Cazalet J
27 July 1990

Courts frequently have to rely on expert evidence because, apart from matters of law, the courts themselves do not have the expertise.

The opinions of experts are admissible in evidence, but experts must only express opinions which they genuinely hold and which are not biased in favour of one particular party. One expert may differ from another in his opinion, but such differences are usually within a legitimate area of disagreement.

Furthermore, experts called by different parties may base their opinions on different basic data and that factor would lead to a divergence in opinion.

Experts should not mislead by omissions. They should consider all the material facts before reaching conclusions and must not omit to consider material which could detract from their concluded opinion.

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

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

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

(c) be properly researched. If an opinion is based upon insufficient data because that data is unavailable, the expert should state this and indicate that his opinion is only a provisional one for this reason.

There will be circumstances where experts have to give opinions adverse to their clients.

The approach of tendering a report which promotes a particular case (and so is not objective) should be avoided because:

(a) it is an abuse of the expert's proper function and privilege; and

(b) it makes the report an argument as opposed to an opinion.

However, where such an approach is adopted, the report must clearly state that this approach has been taken. The practice of experts discussing their reports together is commended.

Parties in wardship proceedings are responsible for ensuring that such arrangements are made, if possible, and RSC Ord. 38, r. 38 can be utilised to this end.

Note

In the county courts, CCR Ord. 17, r. 4 can be used to make directions in appropriate terms to achieve the spirit of this case in all cases concerned with the welfare of a child, and such directions could be made at a pre-trial review. An application for directions need not be made: the court can act of its own motion. In the magistrates' courts, the clerk to the justices might be consulted about arranging a pre-hearing review at which, inter alia, the opinions of experts may be considered.

The editors are aware of a practice whereby multiple experts' opinions are avoided by `judicial approval' (judicial support) for experts to be instructed under a legal aid order being made conditional upon joint instruction of one expert by all of the parties concerned - the expert being asked to report for the assistance of the court rather than to prepare evidence for one party. The aim is to overcome the problem of partisan opinion and to provide the court with a complete overview of the case.

In similar vein, see Evans v Evans [1990] 1 FLR 319, 323E-H and the President's Direction [1967] 1 WLR 1240; [1967] 3 All ER 208.

COUNSEL

Jeremy Posnansky for the plaintiffs

Nicholas Wall QC and N Cullworth for the defendants

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 non medicalprofessional 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.

Solicitors: The names of instructing solicitors are omitted in the interest of preserving anonymity for the parties.

REPORTER: ROBERT STEVENS, Barrister"