Criticism of Professional and Expert Witnesses in the Family Court

General principles

Re W (A Child) [2016] EWCA Civ 1140 provides clear guidance as to the approach to be adopted when the court is considering making adverse findings or criticisms of witnesses. The overarching principle is that any party or witness who is to be the subject of a level of criticism has a right to procedural fairness, which involves them having proper notice of the case against them: 

 “it is unnecessary to go beyond what must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or witness who is to be the subject of a level of criticism that is sufficient trigger protection under article 8 (or article 6) rights to procedural fairness proper notice of the case against them.”

Article 8 private life rights can extend to the professional lives of witnesses. At para 95 Macfarlane P set out helpful guidance: “Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

1. Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;
   1. Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
   2. Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.

Applicability of Re W in recent cases

In Re N (Children: Findings against a Professional Witness: Joinder or Intervention) [2024] EWFC 17 B, the court had to determine whether a treating Consultant Paediatrician ‘Dr K’, against whom the local authority was seeking findings due to their conduct in an alleged FII investigation, should be joined to the proceedings as a party or intervenor. On this issue HHJ Moradifar (sitting as a Judge of the High Court) set out two further additional principles; (1) the issue of joinder as a party or intervention in proceedings is a case management decision to be taken by the court with consideration of the overriding objective, and (2) there is no automatic right to joinder by a person against whom allegations are made [Cumbria CC v T (Discharge of Interveners) [2021] 1 FLR 1338] and different considerations apply to a professional witness where each case must be decided on its own merits [Re H (Care proceedings: Intervener) [2000] 1 FLR 775].

In Re N, once it became apparent that Dr K was likely to face allegations that she would need to respond to in a fair and proportionate matter, HHJ Moradifar gave directions for Dr K to have access to relevant statements, transcripts of evidence, clinical records and the pleaded findings that were sought against her. Dr K had had the benefit of legal advice and will benefit from continuing legal advice. In opposing her joinder to the proceedings the parties argued that the allegations against Dr K fell squarely within the remit of the case and were not therefore outside “the known parameters of the case” (see para 95 above), and that the court had already adopted a fair process to determine the allegations, thereby satisfying the paragraph 95 requirements above. If Dr K were to be made an intervenor, it was argued that this would cause delay which would be both disproportionate and unnecessary. The court determined that Dr K did not need to be made a party or intervenor, noting in particular the significant delay which would occur. The steps taken already by the court satisfied the fundamental principles of fairness and Dr K had the support of her legal team for when she gave her evidence and when she received a copy of the draft judgment. Ultimately findings were made against Dr K. 

More recently in Re E (A child) [2025] EWCA Civ 1563 the Court of Appeal restated the guidance in Re W but reiterated that Re W was an exceptional case on its facts and reminded practitioners at  paragraph 24 “…the President was at pains to emphasise  that the occasions on which such circumstances might occur would be rare, and that “This judgment should be seen by the profession and the family judiciary to be a particular bespoke response to a highly unusual combination of factors. One of those factors was that the findings made have played no part in the case presented by any party during the proceedings” 

The relevant factor is therefore whether the proposed adverse findings of significance against a witness are “outside the known parameters of the case.”

Re E concerned a treating child psychotherapist, Ms Dover, who had earlier worked with D, a sibling to the child E, until D killed herself. The judgment of the court had set out a detailed account of Ms Dover’s involvement with the family and had made certain criticism of her. Ms Dover sought permission to appeal against a decision that she should be named in a judgment which would then be published. The Court of Appeal distinguished Re W on the basis that the findings made against the witness in Re W “did not feature at all in the presentation of the case of any of the parties” and the circumstances in Re E, came nowhere near that standard. There were a number of other observations made by the Court of  Appeal in dismissing the case which were particular to the case before it which are worthy of consideration but which are unfortunately beyond the scope of this Article. Unusually, given that the judgment of the Court of Appeal was only at a permission to appeal hearing, it directed that its judgment may be cited, and concludes again with a clear summary of the general principles:

“We consider it important to emphasise the exceptional nature of Re W and to underline the following. A witness of fact will generally have no legitimate ground of appeal in respect of adverse findings contained in a judgment, provided the criticisms have been fairly put to the witness in cross-examination for comment or response before the findings are made. A witness who is at risk of adverse findings does not, for that reason, have any right to intervene or to have legal representation.”

Expert witnesses

Macfarlane P in Re W provided a “strong caveat” insofar as expert witnesses, as opposed to professional witnesses, are concerned: 

“101.It is, unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case. Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness' fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing. That this is so is, I suspect, obvious. The expert witness should normally have had full disclosure of all relevant documents. Their evidence will only have been commissioned, in a family case, if it is 'necessary' for the court to 'resolve the proceedings justly' [Children and Families Act 2014, s 13(6)], as a result their evidence and their involvement in the case are likely to be entirely within the four corners of the case. If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.

102. I should stress that in the previous paragraph I was expressly addressing the approach to be taken to an expert who attends court and gives evidence. I would not wish to be taken as saying anything to add to or alter the approach that is required before criticising a witness who has not been called to give evidence, for which see Munby J's judgment in Re M (Adoption: International Adoption Trade) [2003] EHC 219 (Fam) paras 111-120.”

There are of course cases where expert witnesses have been the subject of judicial criticism. For example in London Borough of Hammersmith and Fulham v G & Ors [2024] EWHC 2200, Keehan J was critical of Professor Mangham, a “highly respected and hugely experienced histopathologist”, based on the evidence he had provided to the court in that case. Keehan J was left with a sense that he was an expert “overburdened with work”, who had made errors and who had “closed his mind to possible or probable accidental causes for the injuries identified.” The court considered that he had “fallen below his own high standards as a forensic expert witness.” A draft of the judgment was sent to the experts in that case for their comment, and their comments invited. The court accepted some of Professor Mangham’s annotations to the judgment, but most of them were not accepted by the court. 

What next?

5 members of the DCC family team have recently been involved in a rehearing of a finding of fact hearing before Macdonald J sitting at the Royal Courts of Justice. Unusually, but of necessity given the complexity of the medical evidence, the court directed that all bar one of the experts should give their evidence in person. At the time of writing this Article judgment is awaited, but our avid readers can be reassured that the DCC family newsletter will, as ever, keep them up to date with important developments. So watch this space for the next newsletter...