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The President of the Family Division, Sir James Munby, recently handed down his third View from the President’s Chambers, focusing on the reform of expert evidence. As he says:
‘My call to everyone in the family justice system is simple and clear. We can and must reduce the excessive length of far too many care cases. In order to achieve this we must get a grip on our excessive and in many instances unnecessary use of experts.’
He adds: ‘The problem does not lie with the experts themselves. It lies in the use we make of them.’
This is not of course the first time this year that the issue of experts has been the subject of change and scrutiny, the President touched on this area in his previous View from the President’s Chambers in April 2013 and amendments were made to the Family Procedure Rules 2010, Parts 1 and 25 and the associated Practice Directions in January 2013.
It is easy to feel swamped under the increasing mountain of guidance, changes to legislation, and case law, so what purpose does the President’s View have? Well, it’s a heads up, and indication from the top that unlike, for example, MIAMs, a hard line is going to be taken on other reforms to the family justice system.
The President provides a checklist of what is going to happen:
The necessity of expert evidence has recently been under the scrutiny of the Court of Appeal in Re H-L (a child) (care proceedings: 'necessary' expert evidence)  EWCA Civ 655,  All ER (D) 112 (Jun). In a recent LexisPSL Family News Analysis Barbara Mills of 4 Paper Buildings suggested the following key points for family lawyers to take account of following Re H-L:
The President concludes his third View by saying:
‘Case management judges must take appropriate steps to encourage compliance by experts with these requirements. Judges cannot of course tell experts what they are to say; but they can require compliance with PD25B. And there is no reason why case management judges should not, if appropriate, specify the maximum length of an expert’s report. The courts have for some time been doing say in relation to witness statements and skeleton arguments. So, why not for expert’s reports? Many expert’s reports, I suspect, require no more than (say) 25 or perhaps 50 pages, if that. Here, as elsewhere, the case management judge must have regard to the overriding objective and must confine the expert to what is necessary.’
The message on expert evidence is loud and clear. But there will always be exceptional cases, and judicial discretion...
Geraldine Morris is a solicitor and head of the LexisPSL Family team
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Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.
Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.
When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).
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