Family law

by David Burrows, David Burrows, Bristol

Expert evidence: status of expert evidence and joint instructionsOn 5 June 2000 new rules apply to all ancillary relief proceedings (Family Proceedings (Amendment No 2) Rules 1999).

Amongst a variety of other changes, Civil Procedure Rules 1998 Part 35 (expert evidence) becomes part of ancillary relief rules (Family Proceedings Rules 1991 r 2.61C).

Two recent cases on expert evidence are worth noting:X Re B (Split hearing: Jurisdiction) 1 FLR 334, CA is a reminder of how essential it is that, if a judge is to disagree with any evidence - especially of an expert witness - that he gives clear reasons for the basis for his disagreement.

(In Re B the judge preferred the evidence of a child's grandmother to that of a consultant paediatric radiologist for the dating of injuries to an eleven-month old baby.)In Re B the importance of giving reasons was explained by Otton LJ (at 341D) by reference to the need for the court to find a professional opinion incapable of logical analysis before the judge can reject that opinion.

Indeed if a judge is to disagree with any evidence he should explain his/her reasons for so doing, especially in the case of evidence which 'involves something...

of an intellectual exchange' (Flannery and anor v Halifax [2000] 1 WLR 377 at 382, CA quoted by Otton LJ).X Daniels v Walker (2000) The Times 17 May, CA helpfully holds that where a party - for reasons which are not fanciful - disagrees with the report of a jointly instructed expert he/she may seek permission from the court to instruct alternative expert (expert evidence can only ever be called with the court's permission: CPR 1998 r 35.4).

CPR 1998 r 35.12 enables the court to direct that parties agree a valuer (the old civil proceedings rules did not make this possible).Brent v Brent (1979) 9 Fam Law 59, CA had always enabled a party to instruct their own valuer where they had jointly agreed another and then disagreed with his/her conclusions.

Daniels v Walker confirms that Brent survives the introduction of CPR 1998 - in appropriate circumstances.

Social work practice to avoid driftIn Re E and ors (Minors) (Care proceedings: social work practice) (2000) The Times, 10 May, Bracewell J made suggestions for social work practice where there was a history of failure of particular families to cooperate with social workers and evidence over a long period of abusive parenting to a succession of children within the family.These suggestions included: that every social work file should have a chronology relating to the family as its first document; lack of parental cooperation should never be a reason for closing a file; referrals from other professionals, such as health visitors and teachers, should always be investigated fully; and children should always be considered in the context of their family and what had happened to other children in the family.

Freeing orders and the inherent jurisdictionFor a judge to use the High Court's inherent jurisdiction in family proceedings is rare (see analysis in Wicks v Wicks [1998] 1 FLR 470, CA).In Re J (a Minor) (Adoption: Freeing order) (2000) The Times, 26 May, Black J held that she was able to order revocation of a freeing order under the High Court's inherent jurisdiction where nothing in Adoption Act 1976 prevented her from so doing (in this case where a child was to remain with foster parents on a long-term basis without being adopted by them).