Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by The Consortium of Expert Witnesses to the Family Courts (LA 95)

Summary: Expert Medico-Legal reports are a central aspect of Family Court decision-making . However, our ability to continue to work in the Family Courts is increasingly undermined by a funding order which is hidden in the Legal Aid bill . Although the Government seeks to save £10 million by reforming our fees [1] , the means by which they are implementing these changes are not transparent and not available for public scrutiny in this bill. The impact on children and families of restricting this work will be significant.

The House of Commons Justice Committee investigated the working of Expert Witnesses in the Family Courts and made suggestions for improvement, but the Government has ignored these.

§ If the Government’s funding plans are implemented, there will be a significant drop in the availability of experienced clinicians to offer their expertise in the Family Courts.

§ Perversely, the Government’s plan is to reduce the fees for expert witnesses working in London , which is the very rev er s e of what it should be. This is for the obvious reason that the cost of running a practice in London is significantly higher than elsewhere.

§ Clinicians trying to get paid for their work is at present hazardous and chaotic . We need to deal directly with those who pay us – at present the LSC .

§ T he Public Bill Committee needs to stop the Lord Chancellor from implementing funding cuts, based on little or no data, before Parliament enacts this bill.

1. The Consortium of Expert Witnesses to the Family Courts is comprised of 500 experienced professionals who prepare Medico-Legal reports. We are clinicians from a range of disciplines, including paediatricians and other medical and surgical specialists, forensic physicians, adult psychiatrists, including forensic and perinatal psychiatrists, child and adolescent psychiatrists, psycho-analysts, clinical psychologists, forensic psychologists, clinical neuropsychologists, educational psychologists, child and adolescent psychotherapists, adult psychotherapists and social workers. We work throughout England and Wales. We provide expert input to Family Court proceedings, both public law child care and private law proceedings.

2. We provide evidence and opinions for the Courts on matters of child sexual and physical abuse, the level of neglect and/or emotional abuse to which children have been subjected, and the damage done to a child and the available treatment. We also assess parents’ capacity to care for and protect children and their potential for change. Our members have expertise in areas that include:

 

§ physical evidence of non-accidental injury

§ the effect of domestic strife and violence on children

§ the harm inflicted on children by physical and sexual abuse

§ investigation of emotional abuse and harm

§ the aftermath of incest within families

§ how substance abuse and criminality affect parenting

§ children with a parent in prison

§ homicide within the family

We are a group of clinical experts who provide evidence-based expertise for the Family Courts.

3. The children in the families we assess are invariably traumatised and at risk of suffering further harm. Our contributions to the Family Courts help children towards a path of recovery, either with their families or permanently separated. The Family Courts cost money, but they protect children’s lives. They also help set children towards completing education and, hence, posing less risk later for delinquency and early child birth, which cost the country more. These cases are often medically and emotionally complex; they need careful analysis and cannot be simplified.

4. The Courts also have to decide whether or not parents will retain the care of their children. To leave children with harmful parents or to remove children from adequate parents are appalling outcomes. For the Family Courts to reach as informed decisions as possible is vital. We cannot see how Judges, who are legally trained, can have the information they need to inform their decisions without the input of medical and mental health expertise. These matters are not decidable on the basis of common sense.

5. We have previously made recommendations to the Government about how to reduce costs [1] , without undermining the work of clinicians in the Family Courts, which would preserve the centrality of the child’s well being.

We cannot see how disadvantaging the ability of expert clinicians to work can be consistent with the first lines of the Children Act 1989 which stipulate:

"(1) When a court determines any question with respect to-

(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration." [2]

6. In the last two years, we have made representations to the Ministry of Justice in response to their consultations, and we have sat on their Central Working Group. The Ministry of Justice has entirely ignored our submissions, including the suggestions we made about more effective ways to limit costs. In The Government Response to their own consultation, they acknowledged that the data on which they based their decisions had "limitations" [3] , which is an under-statement. Despite the lack of data, the Government has held to their ‘benchmark rates’ and to their bizarre decision to institute lower rates for London-based cases, as well as overall to reduce rates by 10 percent.

7. In fact, the Lord Chancellor has already issued an order [4] , to take effect on 3 October 2001, which will institute rates for Expert Witnesses reporting to London Courts that are one third lower than rates elsewhere in the country. How he has reached this conclusion is unfathomable. More logically, all legal professionals will be paid either at the same rate across the country or at a higher rate for working in London. [5]

8. All this is now happening before Parliament has concluded its deliberations on the Legal Aid, Sentencing and Punishment of Offenders Bill.

9. The Government appears to believe that there is surplus of expert witnesses working in London. The reality is, as the Justice Committee of the House of Commons reported, that the exact opposite is the case. [6]

10. These changes follow on from the Community Legal Service Order 2011, which came into force on 9 May 2011. This reduced expert witness travel rates to £40 per hour. Whilst the Government argued that this rate is in keeping with the rates paid to legal professionals, they fail to see that expert clinicians, who are asked to travel to see families, not just to Courts, need to spend far more time travelling. The lowered rate, which means that many expert clinicians no longer find travel viable, impacts negatively on children and families who now must bear the brunt of travelling, even if it disrupts children’s lives. Many of the families who come before the Family Courts are incapable of travelling, and so they will be disadvantaged when their case comes before the Court. One of our members recently requested that a child be brought to his office because there was inadequate funding for him to travel to see the child. The three-year-old child arrived traumatised, after a long journey with a Social Worker, and promptly fell asleep in the interview room.

11. What will be the impact of these changes? We surveyed our members to ask them about their working practice. A quarter of our membership responded. Over half said that they would not continue at the rates proposed. Additionally, over half of experts based in London said that they would not continue to engage in publicly funded expert witness work. The Family Courts will not have the needed expertise in London.

12. Experienced clinicians will be lost to the Courts, both as expert witnesses and as trainers for the next generation. The Court will lose the needed understanding of the complex psychological, social, educational and ethical problems with which it is confronted daily.

13. The likelihood of clinicians continuing to work for the Family Courts is lowered by the appalling system that the Legal Services Commission use s to pay us. We need direct contracts with the Legal Services Commission, who in fact pay us. Instead, we have solicitors instructing us and requesting estimates in advance of our starting work. Although they accept fee estimates and agree on the amount of work required, they lack the authority to ensure that our bills are paid. Rather, the Legal Services Commission decides if they will pay our bills, after the work is completed . At present, if they decide not to do so, they give no reason for their decisions, apart from sometimes using the single word, "excessive". The clinician has no idea of the criteria the Legal Services Commission uses.

14. Legal Services Commission staff have little or no knowledge of the clinician’s work, its purpose or its importance. All the same, they reduce expert fees without giving a reason. If this was cardiac surgery, it would be absurd for bureaucrats, rather than clinicians, to determine the amount of time required to perform a procedure.

15. As the LSC pays solicitors rather than paying experts directly for their work, we face hazards in getting paid for our work – some solicitors evade payment, some delay, and increasingly, solicitors go bankrupt. In addition, solicitors now tell us that the LSC is delaying payment to them, so they cannot pay our bills. Many solicitors do not pay our bills for a year or longer, so we run our practices with large debts owed and overdrafts. For some unpaid bills, we apply to the County Court or use debt collects. Some bills are never paid.

16. We are professionals, undertaking serious work , and a ll we ask is that we are paid in a timely fashion for work that is agreed. At present, neither of these reasonable conditions is met. Expert witnesses are being forced out of business by these Governmental practices, which do not exist in any other area of work.

17. The Government’s response has been to ignore our requests and instead to simply announce lowered fees.

18. Apart from some mention by the Justice Committee, t here is no-one who has any interest in how clinicians , who have to carry the costs of their practices, can continue without payment. The Justice Committee’s final report said, "We recommend that the Legal Services Commission moves to paying expert witnesses directly. We understanding that this would be an administrative burden for the LSC, but it needs to be balanced against the potential savings." [7]

19. The L egal S ervices C ommission are now iniquitously demanding return of money for cases completely years ago. T hey give no criteria for this, but simply deem it excessive . They call this "claw back" ; they are demanding this money from solicitors, who then demand it from expert witnesses.

20. Will children and families be disadvantaged if expert clinicians are no longer available ? The reader can decide this from the following case vignettes that we prepared from our p ractices.

September 2011

Case Vignettes of Expert Witness Work

Father-daughter incest

A psychologist a ssessed a father who had recently resumed contact with his 12-year-old daughter and was requesting overnight stays . The a ssessment revealed strong paedophilic urges, incest f antasies and grooming behaviour, none of which had been recognised before . The psychologist recommended no further unsupervised contact and counselling for the child. She requested that the Judge direct Social Services to see her report, so that they could warn the extended family of the man’s potential risk to other children. Sadly, a few sessions into the counselling, the daughter revealed that her father had already abused her. All contact stopped then.

Burnt child

A toddler had had unexplained burns to both feet. The paediatricians and plastic surgeons who first saw the child suspected non-accidental injury, but they were not sure . The parties instructed an independent plastic surgeon , who recognised that the burns had been caused by a hot object . He bought several cigarette lighters until he found the one that exactly fitted the shape and size of the burn. The child was removed from the parents.

Secret alcohol dependence

A man claimed to have stopped drinking , despite a history of alcohol dependen ce . Liver function tests were essentially normal. The independent adult psychiatrist pointed out that essentially normal liver function tests can be present despite active alcohol dependence . He ordered hair-strand tests , which revealed hitherto unsuspected heavy regular drinking in the previous three months.

A deceptive father

A Local Authority offered much assistance over several years to a single father who was looking after five children. The father appeared not to learn from the help he was offered, and his care deteriorated whenever the workers withdrew. The children remained in a household that was chaotic and neglectful; at the same time, the father had a cold attitude towards the children. The father always agreed with the suggestions that were offered, but then ignored them. The psychiatrist found that the father had a paranoid personality disorder and that whilst he appeared to accept advice, he did not agree with it and had submerged contempt for those who were trying to help him. The children were removed from his care and thrived.

Serious sexual abuse

During care proceedings, a clinician made a home visit to a large, chaotic household. He remained with the family for about two hours. He noticed not only that the children were physically abusive to each other, and that over the two hours of the visit, the father became increasingly sexual with his young daughters. The report to the Court highlighted concerns about this father, who had a history of impregnating teenagers. Subsequently, the police became involved. The father was tried and convicted of sexually abusing several of his daughters.

A mother who lied

A psychiatrist was asked to assess a young mother with a history of volatile relationships. When the psychiatrist studied the woman’s medical records, she found numerous instances of her fabricating illnesses and lying about her personal history. The psychiatrist diagnosed that the mother had a personality disorder and recommended further assessment. The further assessment showed serious parenting problems, and the child was not returned to her care.

Missed diagnosis

 

A teenager had been mute at times for some years and was removed from his mother’s care because she was thought to be mentally ill , and also he had turned against her . To the Court-appointed clinician, it was apparent that mother and son were autistic. Hence, it was possible to recommend more appropriate treatment, which enabled mother and son to resume meaningful contact.

A false allegation of child sexual abuse

Two children, a three and a four-year-old, were seriously neglected and exposed to violence . Their behaviour was disorganised and sexualised. After a long period in Foster Care , an expert assessment recommended the best p lacement was with Grandparents. At the point of placement , the Foster Carer alleged that one of t he children had talked about being abused when in care of the Grandpar ents. Extensive investigations  commenced. The child psychiatrist was able to state clearly that the child would have no memory of the time when the abu se was alleged to have occurred and could de monstrate that  the child had been influenced by the Foster Carer .

Disguised drug use

A f ather was convicted of assaulting his two- month - old child in 2005 . At the time, he was abusing drugs and suffered from paranoia and psychosis. Previous psychiatric opinion said that if he returned to substance abuse , he would again be unstable. The f ather had a new baby recently and claimed that he had been drug- free for five years. He had not offended and was employed. Common sense would conclude that the f ather had resolved his difficulties. The psychologist demonstrated marked inconsistencies in the father’s psychological tests. He challenge d the father, who then admitted to using drugs recently. This was important information that showed that the father was still unstable and posed a risk to the child.

Not lying, but learning disabled

A psychologist assessed a mother to determine if she had sufficient mental capacity to participate in proceedings about her child having suffered a non accidental injury . T he Police and L ocal A uthority were confident that she was lying.  However, the c ognitive assessment revealed that she had significant learning disabilit ies, probably acquired when she ha d meningitis as a child. Her disabilities were masked by well-established social skills , but h er account of her own history and of the child’s injury w ere vague . She appeared to be deliberately misleading professional s, but she was in fact a vulnerable and damaged woman , struggling to cope with pervasive cognitive difficulties.

Unexplained change in behaviour

A woman ’s parenting and relationships deteriorated dramatically over two years. Her children were removed into care , and h er husband left her. A psychologist assessed the risk of the children having direct contact with their mother. Based on her clinical presentation and GP records , the psychologist suspected an organic disorder. He referred her to a specialist, who confirmed that she had chronic hyperthyroidism , which was the cause of the change in her behaviour . She received the appropriate treatment, and her behaviour improved.

Fabricated autism

A very bright 10-year- old girl presents with behaviour that the mother insists is due to autism. The girl hates change , is oppositional , and does not make friends easily. Local clinicians accepted the mother’s insistence that her daughter had autism. The Local Authority instructed an independent child psychiatrist. He made a careful investigation and demonstrated that the child interac ted normally with him and others. He showed that her symptoms were due to emotional pressure from the mother , along with lies about her father. She was not autistic , but due to her mother’s inappropriate parenting, she had serious attachment difficulties which were causing her difficult behaviour with her mother .


[1] Legal Aid, Sentencing and Punishment of Offers Bill, Research Paper 11/53, 27 June 2011, page 9

[1] Our submission to the Consultation from the Ministry of Justice made these recommendations:

[1] Appointing only one expert witness per case in most matters.

[1] Selecting the number of papers experts are asked to read, which would cut a significant amount of our cost for reading time.

[1] Refining the number of questions we are asked, rather than giving us multiple, repetitive questions.

[1] Direct contracts between experts and the LSC, with granting of prior authority and prompt payment of bills when reports are submitted. Experts could then lower their fees, since we would no longer have to maintain costly accountancy staff to chase bad debts.

[1] Better Court time-tabling, so that expert witnesses do not spend hours waiting to give evidence.

[1]

[2] Part I, Children Act 1989

[3] Reform of Legal Aid in England and Wales , the Government Response, June 2011, page 240, paragraph 10.

[4] The Community Legal Service (Funding) (Amendment No. 2) Order 2011

[5] For example, Schedule 7 of the Community Legal Service (Funding) (Amendment No. 2) Order 2011 offers remunerations to Junior counsel in the County Court at £112.50 (Non-London Rate) and £135 (London rate).

[6] House of Commons Justice Committee, Operation of the Family Courts, Sixth Report of Sessions 2010-2012, Volume I, page 76.

[7] Ibid, page 83.

Prepared 16th September 2011