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Family analysis: Suzanne Todd, a partner in the Family Law team at Withers LLP, examines what impact the changes relating to the use of expert evidence in family proceedings have had in practice.
What impact has the change regarding the 'necessity' of expert evidence had?
The President of the Family Division, Sir James Munby, has made it very clear that he views the changes to the rules relating to experts to be a vital part of the reforms to the family justice system. Expert evidence has been a recurring theme frequently addressed in his updates on family justice reform (now totalling 13) and I was particularly drawn to the comment in his third 'View from the President's Chambers' on the process of reform of expert evidence: 'what is required is a major change of culture'. Now in place for 18 months, the changes to the rules relating to the use of expert evidence in family proceedings--and not least the change to the test for permission to adduce (from an expert being 'reasonably required' to 'necessary')--have brought about a 'major change' in the way family law practitioners approach the use of expert evidence in their cases.
The introduction of 'necessity' was first highlighted by Munby P in Re TG (A Child)  EWCA Civ 5,  1 FCR 229, on 22 January 2013, some nine days before the changes became legally effective, and set the scene when the President said that the test of what is 'necessary' sets a significantly higher hurdle than the old test of expert evidence that was 'reasonably required'.
Soon after, in Re H-L (A Child)  EWCA Civ 655,  All ER (D) 112 (Jun), Munby P said:
'The short answer is that 'necessary' means necessary [...] This court said it "has a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional
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