Written Expert evidence and its evidential weight

EWCA Civ 1363 [2007] TEDR

he Facts

This was a sorry case concerning the residence of three children.

Originally, they had resided with their mother until the mother’s alcohol dependence resulted in the children’s’ father removing them from their Midlands home to London.

He cared for them there for some two and a half years. The Court remained involved in a supervisory capacity.

A social worker prepared a report. Later, that report was accepted and adopted by a CAFCASS officer who reported further. One of the concerns expressed was that not only was the mother dependent upon alcohol, she also had a fundamental tendency to put her own emotional needs before those of the children. The CAFCASS officer gave evidence before the Judge at first instance.

There was also expert evidence before the Court from a Dr. Laki (presumably a psychologist). His reports concluded that the mother was suffering from alcohol dependence syndrome (currently abstinent) and an adjustment disorder related to particular stressful life events. Shortly before the trial he had been asked to comment further. He confirmed that the mother had been abstinent from alcohol for a prolonged period and that her mental state had been quite normal for over two years. He commented that she was taking no medication; had rehabilitated herself; was happy at work; and had a good network of supportive friends. His reports were before the Court at first instance but he was not called to give evidence or be cross-examined.

The Decision

The Judge concluded that the children ought to be moved back to their mother and a residence order ought to be made in her favour.

The father appealed.

Whilst there were other criticisms of the Judgment made in the Court of Appeal, the father criticised the written reports of the Dr. Laki as being “gravely flawed, in that they expressed opinions which are clearly contradicted by other documentary evidence within the case”.

Their Lordships concluded that, despite the father blaming his legal team for their failure to require the Doctor’s attendance at trial for cross-examination, the principles by which the Court of Appeal reviewed cases had to be upheld and there could be no further consideration of this. The father’s legal team had clearly not thought the report contentious as they did not require the author’s attendance for cross-examination.

Further, whilst the Judge at first instance was criticised by the father for being optimistic as to the mother’s future and suggested that he had treated the alcohol dependency and the inability to put the needs of the children first (as noted by the CAFCASS officer) as one issue, Lord Justice Thorpe made it plain that the assessment of the mother’s future capacity was a matter for the expert evidence in the case and that the person with the greatest expertise in that field was the Consultant, Dr. Laki. Given that the Doctor had not been required to attend Court, the father was to be treated as effectively bound by Dr. Laki’s statements of fact and opinion.

Comment

This case demonstrates the power and therefore responsibility borne by an Expert. It also demonstrates that, as to the medical position, the Court was guided by the Doctor in the case as the person with the appropriate expertise.