Evidence in children proceedings — overviewExpert evidence

The ordinary rules of evidence apply in children cases except those under the court's inherent jurisdiction and subject to the rules allowing hearsay evidence in children cases.

Evidence must be relevant and admissible, and only an expert witness may give opinion evidence. The expert should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise.

A new Part XI inserted into the Family Proceedings Rules 1991 (FPR 1991) specifically relates to the communication of information in relation to children. The new rule, which applies to the exercise of the High Court's inherent jurisdiction in relation to minors; proceedings under the Children Act 1989 or proceedings that otherwise relate wholly or mainly to the maintenance or upbringing of a minor, provides that no party may instruct an expert for any purpose relating to proceedings without leave of the court. Where leave has not been obtained no evidence arising out of an unauthorised instruction may be introduced without leave.

Documents produced for court proceedings may only be disclosed to those persons specified in the FPR 1991, or otherwise with leave of the court, such persons to include:

• a party or their legal representative, if any

• a professional legal adviser

• a CAFCASS officer

• an authorised expert

• the Legal Services Commission where the party is publicly funded

• an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which the rule applies

• a professional in furtherance of the protection of children

• anyone else at the direction of the court

There are tables within the FPR 1991 that set out what information may be communicated and to whom. Communication of information otherwise than in accordance with the FPR 1991 is a contempt of court.

Single joint expert

The parties should be encouraged to use a single expert jointly instructed if this is appropriate in the circumstances and to agree a joint letter of instruction. Although they not apply to children proceedings, the Law Society Family Law Protocol recommends that an expert is requested to comply with the Civil Procedure Rules 1998, Pt 35 and the annexed practice direction as if they were applicable. Where one party is instructing an expert, they should try to agree the terms of the letter of instruction and the letter should be in the court bundle.

The Practice Direction: Guide to Case Management in Public Law Proceedings applies to all public law applications made after 1 April 2008. This replaces the Protocol for Judicial Case Management in Public Law Children Act Cases.

Case preparation

No statement may be filed until the court directs. No party may file or serve any document other than as required or authorised by FPR 1991.

The parties must file and serve on the parties and any children and family reporter written statements of the substance of the oral evidence that the party intends to adduce at the hearing and copies of any documents, including experts' reports, upon which they intend to rely, at or by such time as the court directs.

The statement must be dated and signed by the person making it and must contain a declaration that they believe the statement to be true and understand that it may be placed before the court. The statement must also comply with the requirements of FPR 1991 on the information to be shown in the top right-hand corner of the first page.

Where the hearing is of more than one hour the court bundles must comply with the requirements of the Practice Direction (Family Proceedings: court bundles). Failure to comply expressly carries the possibility of a wasted costs order being made. The bundle must contain preliminary documents including:

• a summary of the background to the hearing

• a statement of the issues to be determined

• a position statement

• a chronology

• skeleton arguments

• a list of essential reading for that hearing

There is also a Practice Direction providing guidance on case management.