Why are experts needed in children proceedings?

If you find yourself in children proceedings in the Family Court, you may hear talk of “experts” being involved. But who are they, and why are they needed?

Children proceedings often arise from disputes about how much time a child should spend with each parent. Sometimes, more serious concerns are raised - such as allegations of domestic abuse, substance misuse, or other behaviours that might cause harm. In these cases, the court may need help from experts to decide what’s best for your child.

Experts might include:

• Digital forensic specialists - to review mobile phone data
• Testing laboratories - to report on alcohol or drug use
• Doctors or medical professionals - to assess injuries or physical health
• Psychologists - to explore mental health, emotions and relationships
• Psychiatrists - to diagnose and advise on treatment for mental illness
• Social workers - to understand the family background and assess the children’s needs and how they are being met
• Other specialists for specific needs - for example, speech and language therapists

Experts generally fall into two categories:

• Factual experts - who provide evidence based on data or testing
• Welfare or opinion-based experts - who offer views on what might be best for the child

Getting permission to instruct an expert

You can’t just bring in an expert because it might be helpful. The court must give permission. To do this, an application is made which sets out:

• What kind of evidence is needed
• The questions the expert will be asked
• Why the evidence is necessary
• How much it will cost and how long it will take

What Does “Necessary” Mean?

Expert evidence is often expensive and time consuming to obtain. Whilst it may be convenient or helpful for there to be expert evidence it must be more than just useful - it must be necessary. The court will ask:

• Is the evidence needed to resolve the case?
• Is it outside the court’s own knowledge or experience?
• Can it be found elsewhere (e.g. medical records, police or social services)?

If the answer to all three is “yes”, the judge will allow the expert to be instructed. It is often helpful to think about it from the “other end of the telescope” and clarify what gap there will be in the evidence if the expert report is not obtained: what would be missing if we didn’t have this expert’s input?

Challenges When Using Experts

Aside from convincing a court that an expert is necessary, there are a variety of challenges when considering the instruction of an expert.

Timing

Should the expert be instructed now, or later? Are there primary facts which need to be decided first? For example, drug testing might need to happen straight away to determine if an allegation of substance abuse is proven. But instructing an expert to report on recovery from addiction could not be done until evidence of excessive drug use was obtained.   

Limitations

Experts can’t answer everything and it is important to carefully consider what the science is able to tell us and what it is not. Expert reports must be clear and candid as to their explanations, conclusions and recommendations. 

Choosing the right expert

Is someone already involved in the case suitable, or do you need someone independent? A careful review of their qualifications and whether they belong to any relevant regulatory bodies will be necessary.  The court will scrutinise their credentials and experience. 

Delay

Many experts are in demand and are often busy. Waiting for their report - and for them to attend court - can slow things down.

Cost

Expert reports aren’t cheap. The cost includes the report itself, any follow-up questions, and their time in court. This will all need to be covered by the paying party or parties.  

Impartiality

Experts are usually instructed jointly by both parties  (known as a “single joint expert”) to avoid a “battle of the experts”. The role of the expert is unusual.  They are impartial and their duty is to the court - not to the person paying them.

Experts advise, but they don’t decide. That’s the judge’s job.

If you find yourself in court proceedings, it’s important to remember that experts can only advise and it is the judge who will make the final decisions about the arrangements for your children. Expert evidence can be incredibly helpful and make a big difference in some cases, but it’s not always needed. You should not underestimate the value of your own voice - and your child’s voice - in court proceedings.

If you're facing children proceedings and wondering whether expert evidence might be needed in your case, our family law team is here to help. We can guide you through the process and make sure your concerns are heard.

Get in touch today to speak with one of our experienced family lawyers.