Across all areas of law, experts are used to provide the court with specialist professional and technical knowledge that is not otherwise available to it. Typically, in family cases, this is medical such as a psychologist, or social work, but it can also mean accountants and other financial professionals. An expert must have appropriate professional qualifications, skill and experience to command the confidence of the court. This article looks at the different types of expert witness and how they can help support a case.
Across all areas of law, experts are used to provide the court with specialist professional and technical knowledge that is not otherwise available to it. Typically, in family cases, this is medical such as a psychologist, or social work, but it can also mean accountants and other financial professionals. An expert must have appropriate professional qualifications, skill and experience to command the confidence of the court. This article looks at the different types of expert witness and how they can help support a case.
If you have a family law issue and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
Who is an expert?
In family proceedings, including finances and children disputes, where applicable, the court will agree to appoint a single joint expert. This is an expert instructed by both parties to report upon a defined and agreed set of requirements, and puts the expert on an inquisitorial footing as opposed to a more adversarial approach, meaning they can maintain their independence as a tool of the court.
The court may allow a second expert, for example, if certain medical evidence is pivotal and difficult to challenge without a second opinion.
The following list provides examples of the type of experts the family proceedings court may use:
- Psychologists and other medical professionals – where there are accusations of parental alienation or child abuse, a psychologist can evaluate both adults and children to determine whether or not the allegations are true. A psychologist can also be asked to provide an assessment if one party is mentally incapacitated or is suffering from a psychiatric condition.
- Paediatricians – where it is suspected that a child has been abused, it is essential that a suitably qualified and experienced professional can perform assessments and give their evidence and opinion in order to protect the safety of a vulnerable child.
- Social workers – in cases where there has been a serious breakdown in parental relations to the point where the children of the relationship are adversely affected, an independent social worker may be needed. This is particularly helpful in situations where there are serious safeguarding concerns and child services is working with the family.
- Forensic accountants – in financial cases where one party has not made a full and frank disclosure and the other party suspects they are hiding assets, a forensic accountant may be asked to delve into offshore trusts, international banking transactions, and pierce corporate veils to find out whether certain assets exist and should form part of the financial settlement. Forensic accountants can also provide expert business valuations in high-net-worth divorce cases.
- Expert valuers – they can provide valuations of businesses or assets such as property or shareholdings
- Pensions expert – if you or your spouse have complex pension arrangements, such as defined benefit schemes or multiple pension accounts, it can be challenging to determine how these assets should be divided. A pension specialist can help assess the value of these pensions and propose suitable division methods.
- A domestic violence specialist may be appointed to provide an expert opinion on the nature and impact of abuse on the parties involved particularly on any children.
An expert may provide opinions on matters such as the best interests of the child, the suitability of a particular parent to care for a child, or the fair distribution of assets in a divorce. To qualify as a family law expert witness, an individual must have relevant qualifications and experience, and be able to demonstrate a high level of expertise and knowledge within their area of specialisation.
An expert is appointed by, and owes a duty to, the court and reports in accordance with instructions from both parties. However, the court can only appoint an expert if it is “necessary to assist the court to resolve the proceedings justly”.
It is the duty of the appointed expert to help the court on matters within their expertise. This overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
Can one party instruct their own expert witness in divorce proceedings?
The Family Procedure Rules 2010 (FPR 2010) govern the use of expert evidence in family courts. Part 25 of these rules stipulates that expert evidence should only be used when necessary to assist the court in resolving the issues in the case. It is also emphasised that the court must control the evidence presented to ensure that it is relevant and proportionate.
When one party decides to instruct their own expert witness, the expert’s primary duty is to the court, not the instructing party. This means that the expert must provide an independent and unbiased opinion. The other party has the right to challenge the evidence provided by the expert witness, and may also instruct their own expert if they wish to counter or complement the findings of the first expert.
In some cases, the court may direct the parties to jointly instruct a single expert to reduce costs and streamline the process. However, if parties instruct their own experts, they must provide full disclosure of the expert’s report to the other party and the court.
Are there any potential problems using expert witnesses?
Despite the existence of checks and balances in the system, there are still concerns centred around the quality of some expert witness reports. Poor quality evidence may mean that the court does not have the best information on which to make a decision. Deficiencies in witnesses can arise because of lack of appropriate skills and experience relevant to the case at hand, but could come from weaknesses in presentation of the evidence or a lack of understanding of the role of the expert in a court situation.
If the expert report is unsuitable and fails to adequately address the issues identified by the court, it may not have sufficient evidence to resolve the issues. In these circumstances, the court might even consider it necessary to commission another expert to repeat some of the work in order to provide sufficient assurance that decisions are being made on the basis of sound evidence. As well as representing poor value for money in respect of legally aided individuals, it could cause further delays.
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