Who are ‘Experts’ in Family Law proceedings: your questions answered

Family law proceedings involve complex and often emotive disputes over all aspects of an individuals’ life – from property and pensions, to custody of children – and sometimes even family pets. While Judges are experts in the law, they sometimes need the assistance of other professionals to help make decisions in family law cases. These professionals are usually referred to as Experts.

The involvement of a third party in proceedings, and the potential cost implications, can understandably be a concern for our clients. This article answers the most common questions put to Furley Page’s Family Law specialists about the role of Experts.

What is an Expert?

An Expert is someone who provides specialist evidence to the Court to assist with settling a Family Law dispute. They ought to have relevant experience or qualifications, and they will usually work in the field they are giving evidence about.  Some are professional Expert Witnesses and only do work connected with court cases.

While Expert evidence is usually in the form of a report, an Expert might also attend a court hearing to answer questions about their report.  The Expert is bound by rules of confidentiality which mean they won’t share the information they are given outside the proceedings except in very limited and exceptionally serious circumstances, like if a child is at immediate risk of significant harm.

What are the most common types of Expert in Family Court cases?

In cases related to finances, the main types of Expert are:

1. Chartered Surveyor
   As well as being in dispute over how to share a property on divorce, spouses often disagree about how much the property is actually worth.  A surveyor can be asked to give their professional opinion on the value of a property, taking into account its condition and comparable properties that have sold recently in the local area.
2. Pensions On Divorce Expert (“PODE”)
   A PODE specialises in forecasting what the financial effect of a pension will be in future, specifically in the context of a divorce (as you may have guessed from the name!). In many cases they are required to work out the fairest way to share the pensions the spouses have – each with its own distinct value and differing benefits – so as to achieve a fair outcome and to comment on the potential tax implications.
3. Accountant
   Valuing a business can be complex so an accountant will often be asked to give their professional opinion. They might also be asked to assist in understanding and reducing tax implications.

In cases involving children, the two main types of Expert are:

1. Social Worker
   Social workers play at least some part in all cases concerning child arrangements. Cafcass is a body that reports on potential welfare concerns and gives recommendations to Judges about the options available to them in a case.
   At the start of each case, a Cafcass social worker will send a Safeguarding Letter to the Court summing up the main welfare issues in the case. To do this they speak to both parents and carry out high level checks with the police and the local authority.  A more detailed welfare assessment might then follow. This role can also be carried out by a local council social worker if they are already involved with the family, or in some cases, families privately fund an Independent Social Worker if a detailed welfare report is needed quicker than Cafcass or the local authority can provide.
2. Health Professional
   The Court can request evidence from a broad range of health professionals, including GPs, hospital specialists, psychiatrists and educational psychologists to comment on children’s health and wellbeing.

Why doesn’t the judge do it?

As knowledgeable as judges are about a huge range of topics, they don’t have the level of very detailed specialist knowledge that could substitute for, say, an experienced doctor or an accountant.  Even if they had the requisite specialist knowledge, their Court workload would prevent them from undertaking the kind of detailed enquiry that Expert witness evidence requires.

How do I know the Expert is not biased?

Most Expert evidence used in the Family Court is obtained on a ‘Single Joint Expert’ basis (known as an SJE).  SJE evidence avoids each party having their ‘own’ expert whose evidence would inevitably be viewed with suspicion by the other party.  The Expert is the court’s expert, not the parties’. SJE evidence also avoids a property being visited multiple times to be valued, or a child undergoing multiple medical examinations.

SJE evidence is obtained after a Joint Letter of Instruction is sent by both parties’ solicitors working together, or upon receipt of a court order.  A Joint Letter of Instruction will contain a set of neutrally worded questions for the Expert and a reminder of the strict rules a Single Joint Expert must follow.

There are usually arrangements in place for the parties to be able to seek clarification from the Expert if there are any questions over their evidence. In some cases, the Expert will attend a court hearing to be asked questions by both parties’ barristers to test and challenge their evidence.

How do I get an Expert?

If a party to proceedings feels that an Expert is needed, they can make an application to the Court.  The application should be made as early as possible in the process, and the parties should try to agree if an expert is needed or not.  Even if both parties agree, it is still up to the Court whether an expert will be appointed or not, since the Expert works for the Court, but having agreement makes it a lot easier.

Even if there is no application, the Court can decide itself that it needs to instruct an Expert.

Are Experts expensive?

Yes, they can be expensive.  The costs are usually shared between the parties but even so, half the fees can be a significant out of pocket expense on top of court fees and legal fees already being paid.

However, appointment of a totally independent Single Joint Expert might be the only way to resolve a hotly contested issue.  One report might save thousands in legal fees, prevent ensuing delays, or avoid the need for an extra hearing in the matter.

Even if a report is expensive, it might be proportionate to the asset in question, either in terms of its value, or its complexity.  A surveyor’s report to value a large and expensive property would generally be considered a proportionate expense. For example, if a property is worth £1 million, a 5% margin for error in the valuation could affect the value by £50,000.  Spending, say, £2,000 on an Expert report may be sensible.

Pensions (especially final salary ones) can be so complex that calculating a pension share is beyond the expertise of even the most experienced Family Finance practitioner (including Judges) so an Expert PODE report is very often considered proportionate, even essential, in many cases.

An expert report on tax matters can potentially save both parties money in the long run.

If you are involved in a Family Law disagreement and think Expert evidence might be necessary, please make an enquiry and we will be happy to provide specialist advice.