Tuesday, June 26th, 2018 posted in Inspire News

In a recent family case a judge rejected the evidence of an expert on the grounds that is was not expert evidence at all[1]. The case is a reminder of the basic principles governing the admission of expert evidence.

The case concerned a mother’s application to discharge a care order for her 8 year old son, L. The right to make that application is set out in section 39 of the Children Act 1989. The Local Authority contested the application arguing that the child had over a 2 ½ period formed an ‘attachment’ to his foster carers. It relied on evidence from a social worker as the child’s ‘attachment profile’.

The judge was concerned that if forming an ‘attachment’ with a foster carer was enough the frustrate an application, a parent’s right under section 39 would be largely meaningless. The application would only be made by someone who had not been caring for their child for an appreciable period and where the child will have formed an attachment to someone else.

The judge went back to first principles as to when expert evidence is admissible.

Expert evidence in civil proceedings is admissible if it is:

  1. contained within a recognised body of expertise governed by recognised standards and rules of conduct relevant to the question which the Court has to decide; and
  2. of such a nature that a person without instruction or experience in the area of knowledge or human experience would not be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area.

The court nevertheless controls whether parties can rely on it. In family proceedings it must be ‘necessary’ to assist the court to resolve proceedings.

The judge considered the social worker’s explanation of attachment theory. The theory describes ‘the dynamic relationship that develops between an infant and their primary carer’.

In his view it did not satisfy either criterion.

With regard to the first, there was no evidence it was the subject of any specific recognised body of expertise governed by recognised standards and rules of conduct.

With regard to the second it was only a theory and ‘might be regarded as a statement of the obvious, namely that primate infants develop attachments to familiar caregivers…’ The judge said, ‘For my part I would say with all due respect that I do not need a social worker to give me evidence based on this theory to help me form a judgment about L’s attachments’ and ‘ I cannot say that this so-called expert evidence has assisted me in reaching the decision I must make’.

He went on to say,’ In my judgment, in any future case where it is proposed that expert evidence of this nature is adduced I would expect the court to determine the application with the utmost rigour, and with the terms of this judgment at the forefront of its mind.’

The story shows the importance of going back to first principles and understanding the basis on which expert evidence is admissible. It must meet the 2-fold test of being (1) part of a recognised body of expertise with its own standards and rules and (2) being such that the court cannot form a sound judgment without the assistance of witnesses with that expertise.

Paul Sankey is a solicitor and partner at Enable Law, specializing in clinical negligence claims for patients. https://www.enablelaw.com/team/paul-sankey/

[1] GM v Carmathen County Council and LLM [2018] EWFC 36