Court Refuses Expert Appointment in Child's Death Case: Balancing Necessity and Proportionality

Citation: [2023] EWFC 220
Judgment on


In the matter of “A Local Authority v The Mother & Ors: 2023 EWFC 220,” the court considered an application by the children’s guardian, supported by the local authority, for the appointment of an expert to assess the causation of death of a child. This review analyses the legal principles invoked and how they shaped the judicial reasoning. It specifically outlines the approaches taken from the cited case laws and their relevance to the final decision.

Key Facts

The pivotal issue was whether to appoint an expert to provide insight into an unexplained death of a two-month-old child while co-sleeping, which was considered as a risk factor by the independent social worker but not directly examined. Previous expert assessments did not fully engage with this particular incident but included it to the extent of its emotional impact on the parents. The guardian’s position was that without a clear understanding of the event, it was difficult to assess the parents’ insight and the risk posed to other children under their care.

The key legal principles applied in this case relate to the necessity and proportionality of instructing further expert evidence. The court drew on several cases to guide their decision-making:

  1. Necessity for Expert Evidence: Citing Section 13(6) & (7) of the Children and Families Act 2014, the judge considered whether additional expert evidence was necessary, examining various factors such as its potential impact on children’s welfare, the availability of other evidence, and the likely impact on the case timetable.

  2. Proportionality Analysis: The principles from the cases Oxfordshire CC v DP [2005] EWHC 1593 (Fam), Re H (Children) (Fact Finding) [2021] EWCA Civ 1192, and H-W (Care Proceedings: Further Fact-Finding Hearing) [2023] EWCA Civ 149 underpinned the proportionality analysis. These cases illuminate the factors a judge should consider when deciding on a fact-finding hearing, which in this context translated to whether further expert evidence should be sought.

  3. Avoidance of ‘Fishing Expeditions’: The parents’ counsel argued against the appointment of an expert as a “fishing exercise,” which aligns with the caution expressed in cited case law against veering off track in complex cases, potentially leading to unjustifiable use of limited resources.


The judge refused the application for an expert for several reasons:

  • The case did not exist in an “evidential vacuum,” with extensive and thorough examinations already conducted by competent professionals.
  • The physical evidence from the existing investigations was found to be thorough and conclusive enough for the case purposes.
  • The distinction between possible and probable causes of death was not deemed to significantly alter the assessment of risk or care provided by the parents.
  • Additional likely delay from further expert involvement could not be justified based on the limited potential benefit.
  • The high-quality evidence already presented outweighed the limited prospective utility of additional expert evidence.


The decision in “A Local Authority v The Mother & Ors” reinforces restrained use of expert evidence unless it is clearly necessary and proportionate, in alignment with both the letter and the spirit of existing case law. The court deemed the existing evidence satisfactory and concluded that further expert advice would not offer a sufficient information gain to justify its involvement. The judgment highlights the court’s obligation to carefully balance the pursuit of factual clarity against the risk of undue delay, cost, and diversion from the primary focus of ensuring children’s welfare and a timely resolution to their case.

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