House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

8 Expert Witnesses

Background

245. In most contested cases about children the court will have reports from Cafcass, and in public law cases from local authority social workers. However, in most public law cases, and some private ones, the court requests extra information from one or more experts. Often these are medical or psychological reports, but reports from independent social workers and residential assessments are also used.

246. We heard evidence about the extent to which expert witnesses contributed to delays. A 2008 study found a strong correlation between the number of experts and the length of cases, but it was not possible to tell to what extent this was simply because these cases were more complex.[299] The evidence we received was unclear as to whether the main cause of delays was a shortage of experts, or unnecessary reports, or lack of case management by the judiciary.

A shortage of experts?

247. We heard strong anecdotal evidence of a shortage of expert witnesses. Barbara Esam from the NSPCC told us that: "there aren't enough experts around of sufficient quality. That means that the ones that are there are overworked and not available, which also causes delay."[300] Just following instructions? The representation of parents in care proceedings,[301] by Professor Judith Masson and Julia Pearce, quoted a judge as saying "you've got the problems of shortage of experts in some areas and long waiting times before they start work and produce a report in some specialties". Mr Justice Ryder told us in oral evidence that "the delay [is] caused by sometimes too many experts, but certainly lack of expert availability, and also the lack of appropriate assessments at the time when we need them."[302] The Magistrates' Association agreed saying that "experts in particular are in short supply and their reports take time."[303] Dr Freedman from the Consortium of Expert Witnesses told us that: "there are not many professionals able and willing to undertake Court work. This is because work for the Family Courts is difficult, time consuming, intellectually gruelling and emotionally demanding."[304] She told us that "this situation is particularly critical in London-based cases."[305] The Interim Report, which also identified a problem with a shortage of expert witnesses, said that there was a particular problem in some areas of the country, but did not identify which areas.[306]

248. In contrast, a 2006 report for the Chief Medical Officer, Bearing Good Witness, suggested that most medical professionals who had not acted as experts had not been asked to do so. The Minister, Jonathan Djanogly MP, also disputed what we had been told. He told us that:

I have also been told that there are no significant problems with access to appropriately publicly-funded expert witnesses in London. Different types of witnesses have different rates and the rates vary across the country, so maybe that is what people are looking at. But we do not see there being a problem in terms of people accessing experts in London.[307]

UNNECESSARY REPORTS?

249. Harry Fletcher from NAPO told us in oral evidence that:

I was an independent social worker a long time ago in care proceedings and often I was the only person who appeared apart from the local authority and people acting for the parents in court. Now I am sure that if I went into one of those proceedings there would be four or five people.[308]

250. However, he also noticed that the nature of cases had changed in recent years.[309] This point was made to our predecessor Committee in 2009, which heard that there had been a change in the nature of cases, with more cases involving clients with English as a second language and parents with learning difficulties.[310] If there has been a change in the nature of cases in recent years that could explain why there is a greater need for expert witnesses. However we also heard other possible explanations. Jonathan Ewen from Barnardo's suggested that:

We believe that magistrates and judges are unnecessarily acceding to requests for further expert witnesses where, if they had greater trust in the social workers and the work that they prepared, that would not be necessary.[311]

251. The Interim Report found the same thing, concluding that there was a: "lack of trust in the judgement of local authority social workers, driven by concerns over the poor presentation of some assessments coming from often under-pressure staff. This increases the tendency to commission more reports and delay decisions."[312]

252. Jonathan Ewen went on to suggest that relations between the courts and social workers could be improved "by liaison committees, liaison forums, between the legal side and the local authority side."[313] Judith Timms from Nagalro told us that social workers could help tackle the lack of trust:

Sometimes as a guardian, in my practice, I've said in the past, "We don't need an expert in this case, because actually I can see what is needed, I feel I have the experience and I can put that across to the court." It is something to do with confidence in the role. I do think that social workers are sometimes sold short on how well equipped they are to go into court and stand up under cross-examination.[314]

253. Jonathan Ewen told us that the use of experts was due to a focus on the rights of the parents. He said that there was a culture which characterised the decision to remove a child or to grant a care order as a balancing act between the welfare of the child and the rights of the parent. This was wrong in law but had led to:

a reluctance to go to the step of looking for adoption. As a consequence, adoption is being less used and judges and magistrates are much more likely to accept the idea of having expert witnesses to explore that particular issue, whereas we believe that the balance should be shifted back much more to seeing the paramountcy of the child exactly as that.[315]

254. We also heard that there was potential for more use to be made of people who were not "experts", but knew the child well, such as foster carers or teachers. The Minister, Tim Loughton MP, said that:

There are people, I think, who should be available to give evidence in court who are rarely called on, such as foster carers. I go and speak to foster carers and rarely do they get asked into court to give their view on the future of a child they may have been looking after for months or even years, and yet they probably have a better-formed view than a Cafcass guardian, who has spent half-an-hour on the child in the last three months, but they are not asked.[316]

255. It should be noted, however, that there are different rules about the admissibility of testimony between expert and other witnesses. A foster carer could come to court and tell the court what a child had said to them, or how that child behaved. However, if the foster carer sought to draw conclusions as to why the child was behaving in that way, or what would be best for the child in future, questions would be raised by one of the parties about their qualifications to do so.

Our evidence reflected the of balancing the role of 'common sense' with the need for expert testimony. However, we also received case studies which showed the limits of common sense and the need for professional input in some cases:

Not lying, but learning disabled[317]

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. The Police and Local Authority were confident that she was lying. However, the cognitive assessment revealed that she had significant learning disabilities, probably acquired when she had meningitis as a child. Her disabilities were masked by well-established social skills, but her account of her own history and of the child's injury were vague. She appeared to be deliberately misleading professionals, but she was in fact a vulnerable and damaged woman, struggling to cope with pervasive cognitive difficulties.

Secret alcohol dependence[318]

A man claimed to have stopped drinking, despite a history of alcohol dependence. 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.

256. The Interim Report recommends less scrutiny by the court of the detail of the care plan. This could potentially reduce the number of expert witnesses needed. For example, if the court decides that a child should be taken in to care, and there is no family member available, the court will not have to consider whether the child should be placed in a specialist residential facility or in foster care, or to examine the services that the local authority should provide as part of the care package. However, this work will still have to be carried out by the local authority, at its expense.

257. We are convinced that there are unnecessary expert reports in some family cases. We note the Minister's comments that greater use could be made of non-expert witnesses, including foster carers. However, foster carers have a distinct role from that of experts, and while they can be a valuable source of information they cannot replace experts in those cases where there is a genuine need for expertise.

258. We heard evidence that the relationship between the judiciary and social workers can be problematic, and that this can lead to an increased demand for expert testimony. The judiciary needs to work with local authorities, Cafcass and social workers' representatives to address these issues, and to ensure social workers have the right training to enable them to present evidence authoritatively in court. We note that the Government has set up 42 local performance improvement groups bringing together local authority representatives, local judges, HMCTS, Cafcass and the LSC, and this is potentially a valuable forum to improve communications between the different elements of the family justice system. However, we think that, in addition, members of the judiciary in specific areas should meet local authority social workers and Cafcass staff to address the particular needs and concerns of all parties in those areas.

CASE MANAGEMENT AND EXPERT WITNESSES

259. As previously discussed in Chapter 7, we heard criticism about the lack of effective case management by judges. Expert witnesses told us about the impact of this lacuna in regard to their evidence:

We are increasingly finding that our instructions from solicitors are influenced by the adversarial positions of the parties. We question whether this facilitates the expert witness helping the Court understand what may be best for the child. For example, increasingly, we find that because of their adversarial positions, solicitors ask us many, repetitive questions—50 is not uncommon—because each solicitor adds their own questions, and no one is in a position to synthesise the overall instructions.[319]

260. Longer reports increase the costs to legal aid, as experts are paid by the hour. They also contribute to delays as longer reports inevitably take more time to prepare. More worryingly, we also heard that the instructions were sometimes not in the best interests of the child:

We also are finding that solicitors are increasingly attempting to 'protect' their clients by restricting our investigations. For example, it is not uncommon that we are asked to assess parents who are recently separated, and when we say that we need to interview the parents together, a solicitor may refuse. We believe that it is in the best interests of the child for the positions of both parents to be considered, in terms of what they can contribute to the child's care, as well as what risks they pose.[320]

261. Cafcass workers should, in theory, be appointed before experts are instructed, and can help ensure that any instructions are in the best interest of the child. However, delays within Cafcass mean that this does not always happen.

262. The judges we heard from were also in favour of more robust case management. Mrs Justice Pauffley told us that:

The wait for reports [...] sometimes causes more delay than any of us would want, but then it is for the judge, I would say, to reject an expert's time frame that is outside the child's time frame. The case has to be brought within something that is acceptable from the perspective of everyone.[321]

263. The lack of case management has been indentified in other research. Just following instructions? The representation of parents in care proceedings quoted the concerns that two family judges had when case-managing expert witnesses:

If from the judicial perspective, you are really robust and say, no, we're not going to have this, this and the other expert in this case, I think some of us feel that we are not at all confident that we would be supported by the Court of Appeal if those kind of decisions were taken upstairs. So the move to cut down on experts, I think, has to come from the top down. I think until the Court of Appeal start giving the message loud and clear that judges are going to be supported if they take robust decisions about experts, the likelihood is that judges are going to allow too many experts in.

I'm fed up with the parties huddling together outside court and coming into court with a raft of agreed directions for the court just to add its rubber stamp to, included in which are directions for experts' reports, and I've said to the Local Authorities "Why don't you just stand up to the other parties sometimes, say we don't need an expert, come into court, have the argument." It's very difficult to have an argument about whether there should be an expert in the case when you're faced with a piece of paper that everybody agrees to.[322]

264. Mr Justice McFarlane, Family Division Liaison Judge on the Midland Circuit, has now issued a practice direction stating that:

the Designated Family Judges of the Midlands Region have determined that leave will not be given by the family courts of this region for the instruction of psychologists and independent social workers if they are unable to report within 3 months of the grant of leave. Once this practice is widely followed it is anticipated that experts will routinely become available as their waiting lists fall below 3 months and are maintained at that level.[323]

265. The direction goes on to say that "instructing solicitors must agree and dispatch letters of instruction without delay as directed and requests for extensions of time will engage consideration of whether the report should be dispensed with in the light of additional delay." The direction was introduced on 1 May 2011 so it is not yet possible to tell how successful it has been, or how the Court of Appeal will respond to decisions made as a result of it.

266. The Interim Report found many of the same problems we identified with the case management of expert witnesses. It also noted judges' concerns about how the Court of Appeal would react if requests for experts were refused[324] and recommended revising legislation to give judges clearer power to refuse assessments.[325] It recommended that judges should not accede to requests to use expert Independent Social Workers to do work that should have been done by local authorities or guardians.[326]

267. Finally, the Interim Report recommended that: "the judge should be responsible for the instructing of experts as a fundamental part of their case management duties. This requires them to control the letter of instruction as well as the choice of expert [...] and the scope of their work and timescales."[327] The Interim Report recognised that this would represent an increase in work for judges but felt that it would be worth it to enable them to progress cases more quickly. Judges do not generally have the support of administrative staff who could draft a letter or contact experts to check availability. A consultation question asks whether judges should be responsible for drafting the letter of instruction (rather than just "controlling" it).[328]

268. It is clear to us that a lack of case management by judges is leading in some cases to too many expert reports. We are very interested in the practice direction that Mr Justice McFarlane, Family Division Liaison Judge on the Midland Circuit, has issued prohibiting the use of expert witnesses who cannot report within three months. We call on the Department to monitor the success of this practice direction.

269. We agree with the Interim Report that judges should take more responsibility for the instruction of experts. However, judges do not generally have support staff who are able to draft letters or to ring round checking experts' availability. They also do not currently have the knowledge of the market to instruct experts. A simpler solution is for the parties' solicitors to continue to do the initial work, but for judges to provide much more rigorous oversight; requiring clear explanations of why additional assessments are needed, ensuring the parties' solicitors find another expert if there is a waiting list, and asking the parties' solicitors to work together to reduce the number of questions for the expert. More generally, the Government needs to examine whether—as was put to us by some witnesses—there is a shortage of expert witnesses in some locations and in some specialisms, and work with other interested parties to tackle any such shortfalls.

LEGAL SERVICES COMMISSION

270. The Legal Services Commission (LSC) is responsible for contracting with legal aid providers, and for paying them. It is also responsible for approving and paying their disbursements, which include the costs of expert witnesses. Expert witnesses told us that this system, where expert witness must wait for the lawyers in a case to pass on the money from the LSC, increased their costs:

In any given case, our funding is usually divided between all the parties, which means that we have to submit invoices and collect payment from, on average, four parties (e.g. the Local Authority, the mother's solicitor, the father's solicitor, and the children's solicitor). [...] Some solicitors do not pay our bills within 30 days, or even within several years. We have to employ financial staff to issue invoices to all the parties, chase payment from recalcitrant firms, and, sometimes, issue County Court proceedings. By that time, some law firms have gone bankrupt, leaving us with bad debts.[329]

271. In most public law cases the mother's solicitor, the father's solicitor and the children's solicitor would all be paid by the LSC, but would come from three separate firms of solicitors (to prevent conflicts of interest). So instead of an expert having to chase just the local authority and the LSC, they would have to chase four parties.

272. The current system, where the Legal Services Commission pays lawyers who then pass the money on to expert witnesses, makes things very difficult for expert witnesses. It also creates extra costs for expert witnesses who have to chase multiple solicitors for payment. These extra costs are then inevitably passed on to the taxpayer. We recommend that the Legal Services Commission moves to paying expert witnesses directly. We understand that this would be an administrative burden for the LSC, but it needs to be balanced against the potential savings.

299 Masson et al Back

300 Q 78 Back

301 Masson and Pearce Back

302 Q 163 Back

303 Ev w53 Back

304 Ev 136 Back

305 Ev w126 Back

306 Interim Report, p 110 Back

307 Q 329 Back

308 Q 202 Back

309 Q202 Back

310 Justice Committee, Eighth Report of Session 2008-09, Family Legal Aid Reform, HC 714 Back