About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 19 February 2008

Experts: New Practice Direction

Along with the Public Law Outline (see Family Law Week news item ) a new Practice Direction has been published on the use of experts in cases relating to children which supercedes the guidance contained in the Protocol at Appendix C. The new guidance is to take effect from 1st April 2008 but may be followed immediately if the court wishes to do so. Much of the guidance is similar to that in Appendix C but I will highlight what is new.

  • The guidance contains a welcome reference to following the same principles when instructing of experts before the issue of proceedings and broadly takes account of recent judicial views as to what experts should include in their reports (see the judgment of Ryder J in the Oldham case ): experts should be asked to describe any ethnic, cultural or linguistic factors they have taken into account, any research or literature considered, to describe any process of risk assessment or differential diagnosis noting any unusual, contradictory or inconsistent features of the case & highlighting any hypotheses relied on.
  • There is specific guidance on how the expert should deal with any question on which there is a range of scientific opinion with reference to factors which or support the opinion expressed within that range.
  • Parties who wish to instruct experts are to submit draft directions dealing with the instruction by 11am on the business day before the relevant hearing.
  • The guidance provides that it shall be standard for letters of instruction to be prepared, agreed, filed & served by the lead solicitor within 5 business days of the relevant hearing. If parties cannot agree the contents of the letter the guidance proposes a mechanism for the Judge to deal with the letter by email if at all possible, thus avoiding the need for a hearing.
  • If parties wish to ask further questions of the expert this is supposed to be done by not later than 10 business days after receipt of the report.
  • There is a detailed section on the arrangement of experts’ meetings (nominated professional to take the lead, agenda by way of a list of questions (which should not be a mere repetition of questions asked in the original letter of instruction) to be agreed in advance, nominated professional to chair, a minute to be taken of the answers to the questions, a statement of agreement / disagreement to be prepared).
  • At frequent points the guidance reminds practitioners of the need to be considerate of the experts other professional commitments & encourages greater use of video links & telephone conferences to minimise disruption to them.
  • A key change is that where a party refuses to be bound by an agreement that has been reached at an experts’ discussion or meeting, that party must inform the court and the other parties in writing within 10 business days after the discussion or meeting, or where an IRH is to be held, not less than 5 business days before the IRH and must specify the reasons for refusing to accept the agreement.
  • Finally, in an annex to the guidance are some suggested questions, drafted by the Family Justice Council for mental health professionals, paediatricians, adult psychiatrists & applied psychologists.

The draft letter of instruction on 4 Brick Court’s website has been amended to take account of the Practice Direction and includes possible questions to experts from other sources as well as the FJC questions.

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