Family Division define meaning of new test for permitting expert evidence
The President of the Family Division has allowed an appeal by a mother over the instruction of three expert medical witnesses in a care proceedings case and shed light on the meaning of “necessary”.
In Re H-L (a child) [2013] EWCA Civ 655, Sir James Munby gave guidance on the test for permitting expert evidence under r 25.1 of the Family Procedure Rules 2010.
On 31 January 2013, the r 25.1 test changed from “reasonably required” to “necessary”.
Sir James said: “The short answer is that ‘necessary’ means necessary. It is, after all, an ordinary English word.”
He referred to the case of Re TG [2013] EWCA Civ 5, in which he had left the meaning of “necessary” to be decided on another day. That day had now arrived.
He re-affirmed the meaning given to the word in the case, Re P (Placement Orders. Parental Consent) [2008] EWCA Civ 535, in which the court said it “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”.
Sir James said: “In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.”
Cara Nuttall, senior associate in family law at Slater & Gordon, said: “The decision offers useful guidance in confirming that the test for permission to appoint experts has become significantly more stringent than was previously the case.”
