H-L (A Child), Re

Factual and Procedural Background

This appeal concerns the interpretation and application of rule 25.1 of the Family Procedure Rules 2010, specifically the meaning of the word "necessary" in relation to the instruction of expert evidence in family care proceedings. The case arises from care proceedings involving a young child diagnosed with a rare genetic disorder, spondylocostal dysostosis, who was placed in foster care after bruising was observed and a child protection investigation initiated.

The mother applied for permission to instruct three expert medical witnesses: a geneticist, a haematologist, and a paediatrician, to assist in the proceedings. The application was refused by the trial judge, who concluded that the evidence did not meet the stringent test of necessity under the amended rule 25.1. Permission to appeal was granted, and the appeal was heard shortly before the fact-finding hearing.

During the appeal, further medical records were disclosed confirming the genetic diagnosis, which rendered part of the application moot. The appeal court allowed the instruction of the geneticist on a limited, targeted basis but dismissed the appeal concerning the haematologist and paediatrician.

Legal Issues Presented

1. What is the proper interpretation of the term "necessary" in rule 25.1 of the Family Procedure Rules 2010 concerning expert evidence?
2. Whether the instruction of expert witnesses (a geneticist, a haematologist, and a paediatrician) was "necessary to assist the court to resolve the proceedings" under the amended rule 25.1.

Arguments of the Parties

Appellant's Arguments

• The diagnosis of spondylocostal dysostosis had not been molecularly confirmed in the disclosed medical notes, raising doubt about the child's exact condition.
• The local authority's medical evidence on the susceptibility to bruising related to the genetic condition was superficial and unsatisfactory.
• The geneticist relied upon by the local authority had limited relevant experience and could not be effectively cross-examined on the key issue of bruising susceptibility.
• The mother sought to formally instruct Dr Turnpenny, an expert geneticist, to provide a full report and evidence.
• An independent haematologist was needed to assess whether additional blood testing was required, considering the child's genetic condition might affect blood test interpretations.
• An independent paediatrician was required to provide an overview, particularly regarding the mechanics and aging of bruises in a child with physical deformities affecting movement and injury risk.

Respondent's Arguments

• The local authority and the children's guardian resisted the instruction of any experts, arguing that the existing medical evidence was sufficient.
• They contended that the judge's refusal to permit expert evidence was justified under the stricter "necessary" test of rule 25.1.

Neutral Party

• The father supported the application but played a largely neutral role as he was not a suspected perpetrator.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5	Interpretation of rule 25.1 test for expert evidence ("necessary to assist the court").	Provided the framework for understanding the heightened threshold for expert evidence; court reaffirmed its guidance.
Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535	Meaning of "necessary" as lying between "indispensable" and "useful" or "desirable".	Used to define the connotation of "necessary" in rule 25.1 as "imperative" rather than optional or reasonable.
Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam)	Distinction between treating clinicians and expert witnesses.	Reminded practitioners of the importance of not conflating treating clinicians with expert witnesses.
Oldham Metropolitan Borough Council v GW and PW [2007] EWHC 136 (Fam)	Distinction between treating clinicians and expert witnesses.	Reinforced the need for clear differentiation in expert evidence.
Re B (A Child) [2012] EWCA Civ 1742	Limited grounds for appellate interference in case management decisions.	Supported the principle of robust case management and limited appellate intervention.
Re G-C (A Child) [2013] EWCA Civ 301	Application of established principles to case management decisions.	Example of appellate restraint and application of existing principles.
Re F (A Child) [2013] EWCA Civ 656	Refusal to direct appointment of expert despite agreement among parties.	Illustrated application of rule 25.1 principles and appellate deference to first-instance judges.
Re C (A Child) [2013] EWCA Civ 431	Requirement for prompt handling of appeals from interlocutory case management decisions.	Emphasized the importance of expeditious appeal processes in family proceedings.

Court's Reasoning and Analysis

The court began by clarifying the meaning of "necessary" in rule 25.1, confirming it as an ordinary English word with a meaning between "indispensable" and "useful or desirable," connoting something imperative rather than optional. This interpretation aligns with previous case law and the language used in family law contexts, including Article 8 of the European Convention on Human Rights.

The court acknowledged the importance of robust case management and the limited circumstances under which appellate courts should interfere with first-instance decisions on expert evidence.

Applying these principles to the facts, the court noted that the trial judge had carefully considered the application in light of the new rule and relevant guidance. The judge refused permission to instruct the experts on the basis that the evidence did not meet the necessity threshold, relying on the absence of prior unusual bruising, the lack of medical evidence linking the genetic condition to bruising, and the sufficiency of existing clinical evidence.

However, during the appeal, new medical records confirming the diagnosis were disclosed, removing the need for a geneticist to confirm diagnosis. The court permitted the limited instruction of the geneticist to answer targeted questions on whether the condition increased susceptibility to bruising, as the existing evidence was insufficient for cross-examination and might fall short of Article 6 ECHR requirements.

The court dismissed the appeal concerning the haematologist and paediatrician, finding no basis to interfere with the trial judge's assessment that their involvement was not necessary.

Overall, the court emphasized the trial judge's discretion in assessing necessity, the high threshold imposed by the amended rule, and the importance of timely case management consistent with the Family Justice system's objectives.

Holding and Implications

The court's final decision was to ALLOW THE APPEAL IN PART and DISMISS IT IN PART. Specifically, the court allowed the limited instruction of the geneticist to provide focused answers on the key medical issue but dismissed the appeal to instruct a haematologist and a paediatrician.

The direct effect is that expert evidence will be restricted to that which is strictly necessary to assist the court, reinforcing the higher threshold under rule 25.1. The judgment underscores the limited scope for appellate interference in case management decisions and the importance of expeditious handling of family proceedings. No new legal precedent was established beyond clarification of the application of existing principles.