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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
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.
The provisions relating to the communication of information to third parties in relation to children is contained in Part 12, Chapter 7 of the Family Proceedings Rules 2010 (FPR 2010) and are supplemented by Practice Direction 12G. The provisions, which apply 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 2010, 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 PD12G that set out what information may be communicated and to whom. Communication of information otherwise than in accordance with the FPR 2010 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. The FPR 2010 contain provisions regarding the appointment of a single joint expert. The instructions should be contained in a jointly agreed letter unless the court directs otherwise. PD25A contains further provisions regarding the instruction of experts and the provisions that relate specifically to proceedings concerning children. The Annex to PD25A provides suggested letters of instruction.
No statement may be filed until the court directs. In relation to applications for an order under ChA 1989, s 8 and special guardianship orders no party may file or serve any document other than as required or authorised by FPR 2010.
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. Under the FPR 2010 a party may not file or serve any witness statement or document on which they intend to rely at a hearing, as opposed to in advance of it.
Where a party fails to comply with the requirements of the FPR 2010 in relation to any witness statement or other document, the party cannot seek to rely on that statement or other document unless the court directs otherwise
The statement must be dated and signed by the person making it and must be verified by a statement of truth.
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) which has now been incorporated into the FPR 2010 as PD 27A. . 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 list of essential reading for that hearing
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