What this post is about

When medical expert witnesses are instructed in family cases, usually to help work out how an injury to a child was caused, their evidence can sometimes be accepted by all the parties, in which case the expert doesn’t need to attend court to answer questions. But sometimes not everyone agrees with their conclusions, and there are questions one or more party will wish to ask the witness at trial, through a process called cross examination. In these cases the expert witness will either need to attend court in person, or more often to attend by video link. Lawyers are expected to only ask for the attendance of a witness if they have a proper challenge to make to their evidence on behalf of their client, and judges can refuse to allow it if they don’t think it is necessary. This post is written by Lucy Reed, a barrister working in this field, who observed this hearing. It concerns one case where there was an issue about whether or not cross examination of the medical experts should be permitted.

Legal blogging

At a recent hearing in the Royal Courts of Justice, advocates for all parties in a care case joined together to address Mr JustIce MacDonald on the correct test for permitting the cross examination of expert witnesses, and in doing so were compelled to address the awkward fact that local guidance recently issued by that same Judge, seemed to get that test wrong. The judge’s guidance says that ‘a direction for the attendance of the expert at the final hearing will be an exceptional course’. The  parties  argued that the test for permitting an expert to give evidence is a simple necessity test (as set out in the court rules). Further, they argued that the local guidance should be amended to more clearly show this test, in light of a recent decision of the Court of Appeal on a similar point, in Re M, which we wrote on here.

The case in question involved unexplained injuries to a baby, and the Local Authority had come to court because of a concern that a family member had caused them. This was denied by the family, so on the main issues there were starkly different positions. But on the question of whether the parents’ lawyers should be permitted to cross examine the medical experts whose opinions would be so important in guiding the court’s conclusions about the injuries, everybody agreed – they should be allowed to do so. Everybody, that is, apart from the court – which had yet to be persuaded.

There were a number of unusual features of the child’s medical background and genetics which meant that there was potentially more scientific uncertainty about the causation and timing of the injuries than would often be the case (and timing matters because when injuries are inflicted it can often help pinpoint who has hurt a child and who is innocent). Of the eight experts appointed in the case, the parents sought to cross examine six of them (everyone agreeing that the attendance of the other two was not necessary). The child’s Cafcass guardian supported that request and the Local Authority didn’t oppose it (though they raised a query as to whether attendance by two of the six witnesses were really necessary).

Unusually, not only did the parties all adopt almost identical positions on the question of calling the experts and the appropriate test for allowing it, but various of the advocates had got together to prepare joint documents and a joint skeleton argument. I was able to obtain these documents as a result of the transparency order made at the start of the hearing, although there wasn’t time to read them all before the hearing began. What I observed in court was only the tip of the iceberg. There was a lot of prior work by the lawyers, and it was clear that the judge had read and considered the points that were being made and noted the unity of voice before the hearing got properly underway.

The hearing

Watching this unfold in court reminded me of the carefully executed ritual courting dance you see in a natural history programme. Four barristers in turn performed the same dance in a slightly different way, each delicately, politely and precisely showing the High Court Judge their best points and responding to his questions, each finding a slightly different way to acknowledge the pressures that courts were working under and the reasons why attempts to improve efficiency and robustly case manage were necessary. In response, Mr Justice MacDonald variously nodded, probed, acknowledged and almost imperceptibly changed tack as the hearing progressed, accepting that, in light of the binding authority in the recent Court of Appeal judgment tin the case of Re M, a test of necessity was the correct one. Not a cross word was spoken. No feathers were obviously ruffled. It was a mutually respectful exchange of views and points.

Mr Justice MacDonald has reserved judgment. It seems likely, on my reading, that he will permit most if not all of the six expert witnesses to give evidence and that his judgment will clarify that the correct test is one of necessity. When that judgment is received (I think it will most likely be published) I will update this post.

The local guidance

The case had come before Mr Justice MacDonald as the nominated High Court Judge for the London area (the liaison judge). In November 2024, in his capacity as liaison judge, Mr Justice MacDonald issued guidance entitled “Local Practice Note: Ensuring Adherence to the Public Law Outline in London”.

This guidance comes against a backdrop of particularly high caseloads and particularly poor timeliness in London Courts, and a particular drive to tighten up procedure and efficiency in such courts, supported by the President of the Family Division.

The guidance begins by emphasising this backdrop:

“4. London remains an outlier in terms of the time it takes to determine care proceedings and the number of hearings it takes to do so. There is a concerning culture of non-compliance with the PLO [public law outline]. This must change. Practitioners can expect the PLO to be applied rigorously in London. This Practice Note, issued with the concurrence of the President of the Family Division, sets out the consequences of this.”

In a section devoted to adherence to court rules, the guidance emphasises the expectation that lawyers will scrupulously follow the rules and avoid informality:

“5. The FPR 2010 provide the definitive procedural code for the Family Court and must be adhered to by all parties.

6. …any application within public law proceedings must be made using the correct court form and the correct fee paid before the court will deal with the application. Where the parties seek for the matter to be dealt with on paper, the application form must be accompanied by a draft consent order.

7. … It will no longer be acceptable for applications for case management directions, or their variation, to be made by way of email to the court or judge. Emails requesting case management directions or variations thereto, including emails purporting to “update” the court and seeking “guidance” and emails duplicating applications submitted to FPL, will not be dealt with.”

Under a heading ‘Limiting Expert Evidence’ the guidance says that

“28. FPR 2010 r.25.10 provides a comprehensive framework for written questions to be put to expert witnesses. FPR 2010 r.25.9(2) stipulates that the court will not direct the attendance of the expert at a final hearing unless it is necessary to do so in the interests of justice. It is incumbent on any party seeking to cross-examine an expert to make an application for the court to direct the attendance of the expert. By reference to the terms of FPR 2010 r.25.9, a direction for the attendance of the expert at the final hearing will be an exceptional course.”

This was the part of the guidance that the lawyers took issue with, and which appeared to have driven earlier decisions by the original judge in this case to refuse to allow the experts to be called without a formal application, before subsequently passing the case to MacDonald J himself.

Since covid video links have become much easier to set up and more commonplace, so expert witnesses normally now attend court remotely even though everyone else is most likely to be attending in person. This makes it easier for an expert to accept instruction, because the impact on their clinics is likely to be much less than if they had to travel across the country to give evidence.

Legal research required in this case

MacDonald J had then made a raft of directions, for skeleton arguments and a hearing. In their original arguments, the lawyers for the parents and child had alluded to 68 cases in which permitting the parents to cross examine medical experts had directly affected the outcome (in essence meaning children were able to return to their famlies). When the case was transferred to him, MacDonald J had directed that the lawyers should list all these cases; he listed several  cases and materials that he thought were relevant and which the lawyers should consider and make available in advance of this hearing.

It was apparent that by the time I attended court that this exacting approach from the two judges had combined to cause a delay of about two months, and a substantial amount of additional work for the lawyers, who had produced detailed skeleton arguments and then supplemental skeleton arguments when the Judge sent out an order listing a large number of additional potentially relevant authorities, some of which came from civil cases. In the meantime. the fact- finding hearing hadn’t even been listed and the family were in limbo.

The requirement to lodge a formal application was the subject of some representations and dialogue with the judge. The thrust of the submissions made was that this was an unusual requirement, as witness requirements would usually be discussed at advocates’ meetings and set out in a draft witness template, ready for the judge to consider at the appropriate hearing – and that was all that was usually needed. The advocates accepted the point made by the judge that the rules require the court to give permission, but argued that a formal application was unnecessary, and that this was one of many commonly occurring issues that were routinely resolved at case management hearings or pre-trial review hearings without a formal application. For what it’s worth, that matches my own experience. I would not normally expect to have to make a formal application to cross examine an expert medical witness, though I would expect to have to justify my request to the judge in some cases.

Comment

The judgment in Re M ostensibly relates to the appointment of intermediaries and the correct test for doing so. But intermediaries are not the only area where the drive for greater efficiency against a backdrop of delay and backlog has led to increasing formality and guidance which has questionable legal status but which alters the behaviour of frontline judges and distracts them from the rules. It was interesting to hear MacDonald J’s comments about why it was important to insist on a formal application as a precursor to being able to call an expert:

“we all have to work according to the rules. It’s not a question of finding easy ways to accommodate each other. it’s that the rules – from experience – are the methodology that makes people’s lives easiest. I accept there is a cost with that but the extensive number of emails and the informality of process – and if is done by email there is no monitoring process or proper record keeping and no one to remind a judge that there is an outstanding task etc, those are the difficulties that drive that approach”.*

It is easy to understand the difficulties associated with the proliferation of emails, but in issuing guidance that functionally throttles a party’s ability to challenge the evidence against them by effectively raising the bar, there does seem to be an inconsistency in how this strict adherence to the rules approach is applied.

In the hearing at least, it was the judge who finally bit the bullet to voice that

“It must follow from the decision of the Court of Appeal [in Re M] that insofar as the practice note might be taken – and the guidance from the President from which that was drawn – to introduce a test of exceptionality, it should not be read like that because that would be wrong?”*

This allowed the Sam Momtaz KC, the barrister representing the mother and leading the charge, to swiftly agree and to just as swiftly acknowledge the well intentioned aims and objectives of the guidance.

What I saw in Re M (which I also observed, having prepared written submissions on behalf of the FLBA, who intervened) and in this hearing was a united front from lawyers keen to defend the fairness of the trial process, which depends both upon ensuring everyone can participate fully (Re M) and that expert evidence can be properly tested before it is accepted. The 68 cases were a powerful illustration of why that tool is so important for lawyers, and their clients.

Paul Storey KC, acting for the father, and the most senior of all the lawyers in court followed on from Momtaz. His demeanour was the relaxed style of someone who knows that what he says will carry weight. He said that

“[there are] many, many things here that make this such an obvious case for oral evidence from all the experts that it is regrettable there has to be so much detailed debate about it. I say that with warmth towards what the President is trying to achieve in terms of keeping cases smaller, avoiding unnecessary hearings. But if we are going to have, in every single case of this type, a massive debate about expert on expert – across the bar there is agreement between parents and the Guardian’s representatives about all six, just a bit of skepticism from the local authority about two of them. The resources that have gone into this one issue are frankly overwhelming and not justifiable.”*

The judge appeared to appreciate this point, as his response was “You are just diverting and moving resources from one place to another and reducing the resources available [my note says required but I think it must mean available]”.

The exchange continued like a relaxed dialogue, Mr Storey saying,

“Also, it will bung up the courts. There are many, many NAI [non accidental injury] cases up and down the country. Hundreds. If in every single one we are going to go into this sort of detail to try and justify even in a case like this where it is not just necessary but blindingly obvious….”*

Storey went on to remind MacDonald J of a case they had both been on together as barristers in 2013, before MacDonald had become a judge. He didn’t name the case: ‘you will remember the case’ he said. He didn’t need to name it because he wasn’t really citing it an authority, he was evoking a memory. And what he reminded MacDonald of was the impact of cross examination of the experts in that case, which had led the judge (Mostyn J) to conclude that the evidence did not support a finding of inflicted injury against either parent, and which led to the exoneration of both parents. They had been represented by MacDonald and Storey. Storey used his shared experience with the judge to force him to remember what it was like to represent a parent, to remember the power of cross examination and to remember what the stakes are. He paraphrased a striking passage in Mostyn J’s judgment, which together with the names and date has enabled me to identify the case as Lancashire County Council v R [2013] EWHC 3064 (Fam) and to quote the passage in full:

“In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false […] We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy […] As Mr Richards [one of the experts, in oral evidence] said to me […] “the more you know the more you know you don’t know”.*

This was a really powerful illustration of the power and importance of the judge hearing from the experts, of the impact it can have on a judge’s thinking, and of the revelations that can emerge through that process. By triggering the judge’s personal recollection of the case, Storey also drove home the point that rather than being a ‘numbers game’, the list of 68 cases involved 68 real families, one of whom Storey and MacDonald’s cross examination of the experts had helped to reunite.

I have reproduced the list of 68 cases below. Credit for compiling them goes to the lawyers in the case: Sam Momtaz KC, Previn Jagutpal (Leading and Junior Counsel for the mother), Paul Storey KC, Lydia Slee (Leading and Junior Counsel for the father), Taryn Lee KC, Tim Hussein (Leading and Junior Counsel for the Children’s Guardian). Lawyers working in this area will be familiar with many of them, but it is really impactful to see them gathered together in one place. Each one is a child gone home, and who might not have done without that important cross examination.

The 68 cases

No	Case name & Citation	Year	Judge
1.	Oldham MBC v GW, PW, KPW & Ors [2007] EWHC 136 (Fam)	2007	Ryder J
2.	Lancs CC v D & E [2008] EWHC 832 (Fam)	2008	Charles J
3.	A Local Authority v A [2009] EWHC 1982 (Fam)	2009	McFarlane J
4.	A Local Authority v S [2009] EWHC 2115	2009	King J
5.	Re C & D (Children) [2010] EWHC 3714 (Fam)	2010	HHJ Bellamy
6.	A County Council v M & F [2011] EWHC 1804 (Fam)	2011	Mostyn J
7.	Re R (A Child) [2011] EWHC 1715	2011	Hedley J
8.	LB Islington v Al-Alas, Wray [2012] EWHC 865 (Fam)	2012	Theis J
9.	A Local Authority v A Mother, GM, DA & AA [2012] EWHC 2647 (Fam)	2012	Baker J
10.	Devon v EB, WD, ED, JD & TD [2013] EWHC 968 (Fam)	2013	Baker J
11.	Lancs CC v R [2013] EWHC 3064	2013	Mostyn J
12.	RE E (Withdrawal of Care Proceedings) [2013] EWHC 2400	2013	Theis J
13.	Re B (A Child) [2014] EWHC B1 (Fam)	2014	HHJ Lea
14.	Lancs CC V C, M & F [2014] EWFC 3	2014	Jackson J
15.	C (A Child) (Fact Finding: Delay) [2014] EWFC B72	2014	HHJ Anthony Hughes
16.	Lincolnshire CC v TM, TC, MM, Ti, Te & T [2014] EWFC B115	2014	HHJ Swindells QC

17.	Lincolnshire CC v KP & Ors [2014] EWFC B129	2014	HHJ Swindells QC
18.	Bucks CC v D, T & B [2014] EWCC B55 (Fam)	2014	HHJ Anthony Hughes
19.	LB Lambeth v Z & Ors [2015] EWFC B9	2015	HHJ Sally Williams
20.	Re F and J (Children) [2015] EWFC B231	2015	HHJ Rundell
21.	Re L (Application to Withdraw: Head Injuries – Unknown Cause) (Rev 1) [2015] EWFC 67	2015	HHJ Jakens
22.	Re HB (A Child) (Care Proceedings) [2015] EWFC 74	2015	Baker J
23.	Re S (A Child) (Care Proceedings: Surrogacy) [2015] EWFC 99	2015	Baker J
24.	Lancs v H, C & B (Finding of Fact: Rehearing) [2016] EWFC 48	2016	Jackson J
25.	A Local Authority v K & Anor [2016] EWFC 35	2016	Keehan J
26.	Medway Council v R & Ors [2016] EWFC B104	2016	HHJ Lazarus
27.	Re N (A Child Low Level Falls) [2016] EWFC B29	2016	Recorder Howe QC
28.	LB Newham v AB, CD, EF [2016] EWFC B107	2016	Recorder Vanessa Meachin
29.	Bucks CC v Andrews, Stillwell & Ors [2017] EWFC B19	2017	HHJ Venables
30.	ES (A Child) [2017] EWFC B96	2017	HHJ Anthony Hughes
31.	Re Y [2018] EWFC B20	2018	HHJ Booth
32.	LB Hillingdon v M & Ors [2019] EWFC B15	2019	HHJ Willans
33.	Re J (A Child) (Fact Finding Hearing in Care Proceedings) [2019] EWFC 73	2019	Newton J

34.	Herts CC v M, F, TP & TS [2019] EWHC B51	2019	HHJ Middleton-Roy
35.	A Local Authority, M & Ors [2019] EWFC 33	2019	Newton J
36.	East Riding v C, P, S & Ors [2020] EWFC 71	2020	HHJ Jack
37.	LB Southwark v A Family [2020] EWHC 3117 (Fam)	2020	Hedley J
38.	Warwickshire CC v K, L and M (Children) [2020] EWFC 56	2020	Her Honour Judge Walker
39.	Kent CC v C & Ors [2021] EWFC 122	2021	HHJ Sarah Davies
40.	Re H & Others (Children) (Fact Finding: Rib Fractures) [2021] EWHC 2041 (Fam)	2021	Poole J
41.	Re G (Finding of Fact: Resuscitative Shake) [2022] EWFC B6	2022	HHJ Philip Harris-Jenkins
42.	Central Bedfordshire Council v F & Ors [2022] EWFC 130	2022	Newton J
43.	A Local Authority v The Mother & Ors [2022] EWFC 172 B	2022	Recorder Bickler KC
44.	Essex CC v C & Ors [2022] EWFC 187	2022	Newton J
45.	LB Waltham Forest v GA & Ors [2022] EWFC 208	2022	HHJ Carol Atkinson
46.	A Local Authority v M, F & Others [2022] EWHC 2793	2022	Williams J
47.	Hertfordshire CC v Mother & Ors [2022] EWFC 106	2022	HHJ Richard Clarke
48. 49.	BR & Others (Three Families FII Finding of Fact) [2023] EWFC 326	2023	Poole J – two out of three mothers exonerated, therefore counts as two cases.
50.	LB Havering v A Mother & Ors [2023] EWFC 65 (B)	2023	HHJ Madeleine Reardon

51.	Re AA [2023] EWFC 278 (B)	2023	HHJ Carter
52.	Surrey CC v LV, FM & A,B, C [2023] EWFC 186	2023	HHJ Lindsey George
53.	Re AB (A Child: Diabetic Care [2023] EWFC 149	2023	HHJ Wildblood QC
54.	Bracknell Forest Council v A Mother & Ors [2024] EWFC 68 (B)	2024	HHJ Richard Case
55.	Re G (Non-Accidental Head Injuries) [2024] EWFC 172	2024	Recorder Leslie Samuels KC
56.	RE M [2024] EWFC 189 B	2024	HHJ Sullivan
57.	A Local Authority v M & Ors [2024] EWFC 238 B	2024	HHJ Jonathan Holmes
58.	Middlesbrough v M, F, MGA & N [2024] EWFC 378	2024	HHJ Murray
59.	Kent CC v A & Ors [2024] EWFC 412B	2024	HHJ Clive Thomas
60.	LB Croydon v D (Critical Scrutiny of the Paediatric Overview) [2024] EWFC 438	2024	HHJ Kathryn Major
61.	A Local Authority v SH & Ors [2024] EWFC 189(B)	2024	HHJ Sullivan
62.	LB Hammersmith & Fulham v H, A, B, C [2024] EWHC 2200 (Fam)	2024	Keehan J
63.	Kent County Council v Mother, Father & Ors [2024] EWFC 209 (B)	2024	HHJ Coffey
64.	Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498	2024	COA: Jackson, Newey LJ’s, Cobb J
65.	Re: X and Y (Children) [2024] EWFC 443 (B)	2024	HHJ Dancey
66.	D and A (fact Finding: Research Literature) [2024] EWCA Civ 663	2024	Baker, Phillips, Laing LJ’s

67.	LB Lambeth v M, EF, RG & Ors [2025] EWFC 55	2025	HHJ Marin
68.	Re: A, B, & C [2025] EWGC 105 (B)	2025	HHJ Hesford

This reporting was made possible by Practice Direction 12R, through which I was able to obtain a transparency order and access to skeleton arguments. Any qualified lawyer interested in legal blogging can contact The Transparency Project for support to get started.

*the reported speech in this post are based on my tidied contemporaneous note. The ‘quotes’ may not be exactly verbatim but should be broadly accurate.

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