A Local Authority v AX & Ors [2025] EWFC 137

Summary

HHJ MacDonald provided much needed guidance on how the courts are to exercise their case management powers under FPR 2010 r.25.9(2), which provides for directing joint experts to attend to give oral evidence at a final hearing on the grounds that to do so is necessary in the interests of justice.

Background facts

The case concerned L, aged 5 weeks, who was admitted to hospital following seizures. L was found to have suffered multiple bleeds on the brain, extensive bruising, and abdominal trauma. The injuries were suspected to be non-accidental, proceedings were issued, and the court gave permission for the instruction of several medical experts, namely a consultant haematologist, neuro-radiologist, paediatric neurosurgeon, paediatrician, geneticist, and an obstetrician. The court went on to direct an experts meeting, in which the experts maintained their opinion that the injuries were consistent with inflicted trauma. Directions were then given requiring any party seeking expert attendance to issue a C2 application, and the determination of any such applications was to dealt with at the IRH.

Relevant Law

Section 13 of the Children and Families Act 2014 Act controls the use of expert evidence in children proceedings (as defined in FPR r.25.2(1)). FPR r.25.9 sets out the general requirement that expert evidence is to be given in writing unless the court considers it necessary in the interests of justice to direct the attendance of the expert at the hearing. Following receipt of the written expert report, FPR Part r.25.10 provides for written questions to be put to expert witnesses, and FPR r.25.16 provides for the court to direct a discussion between the experts.

Discussion

Necessity, not exceptionality

The test to be applied when exercising Section 13 of the 2014 Act is that of necessity. Section 13(6) makes it clear that it is for the court to decide, and the purpose of FPR r. 25.9 is to limit the attendance of experts at hearings in children proceedings to that which is necessary in the interests of justice. The general rule is therefore that expert evidence is to be given in a written report unless the court decides otherwise. With this in mind, the court emphasised that, in line with Re M (Intermediaries), there is no test of exceptionality.

Does a C2 application need to be made

In the immediate case, the parents argued that there was no requirement for parties to make a C2 application for a direction under FPR r.25.9(2). The court disagreed, opining that there must be a means consistent with the sound administration of justice by which parties can indicate whether a direction is sought, and determining that a C2 application form will now be required where a direction for expert attendance is sought, setting out reasons why attendance is said to be necessary.

Seriousness as necessity?

While acknowledging that public law proceedings under Part IV of the Children Act 1989 concern the question of State intervention in family life, this fact in of itself is not likely to render the attendance of experts necessary in the interests of justice under FPR r.25.9(2). Further, the fact that a final order made will interfere with the Article 8 right of the parents and children will likewise not constitute a reason in itself for permitting the attendance of an expert.

Importance of challenging evidence

The court also explored, between paragraphs 35 and 55 of its judgment, the importance of a party putting their case to an expert, ultimately endorsing the principles articulated in the Supreme Court case of Tui UK Ltd v Griffiths at paragraphs [61] to [68]. While noting that this case could be distinguished on the basis that it relates to civil proceedings, rather than the non-adversarial and quasi-inquisitorial system of public law proceedings under the Children Act 1989, the court was satisfied that it must have regard to Tui UK Ltd v Griffiths.

Within this context, in determining necessity the court stressed the importance of considering the relationship between expert medical evidence and all other evidence. There is to be an intense focus on the content of the expert evidence, considered in the context of the Overriding Objective in FPR Part 1, the provisions of FPR Part 25 as a whole, and the importance in certain cases of the role of challenging evidence in ensuring the overall fairness of the hearing.

Guiding principles when deciding whether it is necessary in the interests of justice to direct the attendance of the expert:

i) The general rule is that evidence is to be given in writing pursuant to FPR 2010 r. 25.9(1), unless the test of necessity in the interests of justice is met.

ii) In the first instance the appropriate way of interrogating the written expert evidence is in writing pursuant to FPR 2010 r. 25.10. With the court's permission, and where appropriate and consistent with the Overriding Objective

iii) Where appropriate, the court may also direct discussion between the experts pursuant to FPR 2010 r.25.16 to identify areas of agreement and disagreement

iv) In a proportion of cases, the process for written questions and expert discussions will render it unnecessary to direct  oral evidence

v) Per FPR r.25.9(2), the attendance of the expert at the final hearing will only be directed where it is necessary to do so in the interests of justice.

vi) Where a party seeks the attendance of the expert at the hearing, following the above taking place, that party should make an application for a direction to that effect by way of Form C2, setting out the reasons why attendance is necessary

vii) In determining the above, there should be an intense focus on the content of the expert evidence by reference to the issues before the court, undertaken in the context of the Overriding Objective in FPR Part 1, the provisions of FPR Part 25, the importance in certain cases of the role of challenging evidence in ensuring the overall fairness of the hearing and the nature and extent of the task of the court in assessing the evidence before it, will determine necessity in the interests of justice, rather than general considerations of the nature of the proceedings, the seriousness and potential consequences of those proceedings or the rights engaged therein per se. The fact that all parties agree that the expert should attend the hearing will not be determinative.

viii) In applying the test of necessity the following are likely to be at the forefront of the court's mind are (a) the extent to which the expert evidence is relied on, (b) how much the expert evidence is disputed, (c) whether what is disputed is central to determination of the issues before the court, (d) the degree of expert consensus, (e) whether the points of dispute can be dealt with fairly in writing, (f) whether the evidence deals with a novel or controversial area, (g) whether expert evidence suggests that a dogmatic approach has been taken by an expert or that the reputation or amour propre of the expert is at stake, (h) what other available evidence is relevant to determining the issues before it, (i) the position of the party against whom allegations are made and (j) challenging  the expert evidence is necessary to ensure the overall fairness of the hearing.

ix) Where attendance and cross examination is permitted, the expert should be given advance notice of the topics (not the questions) to be covered and of any fresh evidence.

x) Where the court does permit the attendance for cross examination of an expert the court may impose a strict time limit for cross-examination and specify the topics to be dealt with.

Conclusion

In the current case, the expert evidence was found to be central to the case advanced by the LA, as the threshold pleaded relied heavily on the experts’ conclusions. While anticipating that a proportion of similar cases could have expert evidence dealt with by way of FPR 2010 r.25.10 questions and an FPR 2010 r.25.16 expert meeting, given the complexity of the disputed medical evidence, the court was satisfied that it would not be fair to limit the parents' challenge to written questions. As such, the Judge directed several of the expert witnesses to give evidence at the final hearing. In doing so, the court stressed that such case management decisions will turn on the facts of each case, and that the decision does not presage a change in the court’s approach to the application of FPR r.25.9(2).

A Local Authority v AX & Ors [2025] EWFC 137 judgment

11th Jun 2025

Lydia Slee

Call 2007

James Hoile

Call 2022