‘No Questions, Your Honour’: challenging the unchallenged expert in closing – a permissible tactic in children cases?

David Gareth Evans Family law barrister 9 Park Place Chambers

In this article the authors consider whether it is acceptable in children cases to invite a court in closing to depart from unchallenged expert evidence. The authors start by outlining the majority decision of the Civil Division of the Court of Appeal in Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 which determined that such tactics were permissible in civil cases. The authors explore whether a similar approach should apply in children law proceedings. They discuss the weight to attach to expert evidence in family cases and then explore the knottier issue of departing from unchallenged expert evidence. The authors’ central submission is that reasoning analogous to Griffiths has no place in children cases: parties should not be permitted to save criticism of unchallenged experts until closing. The authors’ argument relies upon inter alia distinguishing the underlying aims of the respective justice systems and upon discussion of both the case management provisions and procedural fairness in children cases....