Supplementary evidence from the Consortium
of Expert Witnesses following the evidence session on
1 March 2011 (FC 63)
INTRODUCTION
I, Judith Freedman, gave evidence to the Committee
on 1 March 2011 on behalf of the Consortium of Expert Witnesses
to the Family Court. Since our first submission in September 2010,
the size of our group has grown to almost 500 members.
On our behalf, I wish to submit the following additional
information:
The Crisis in Expert Witness Availability
I told the Committee on 1 March that there is a crisis
in expert witness availability. I am sorry to say that in the
last three weeks, this crisis has worsened. It has now become
apparent that the Legal Services Commission is already implementing
the reduced fees proposed in the Green Paper, before the Government
has announced their decisions about the Green Paper.
In response to the lowered rates being offered, expert
witnesses have begun turning down requests to undertake assessments.
This situation is particularly critical in London-based cases,
where the LSC has followed the proposals in the Green Paper for
even lower rates than for cases outside London. Since the cost
of maintaining practices (administrative staff and office space)
in London is significantly higher than outside London, many expert
witnesses say that their costs are not met at the rates now being
paid by the LSC.
The Government said in the Green Paper that they
proposed offering lower rates within London because they believe
that there is more competition. They provided no data to indicate
that this was correct. Indeed, even offering the same rates nationwide
would mean lower rates for London, since the costs of working
in London are higher than elsewhere. The Green Paper does not
seek to penalise any other professionals, such as barristers or
solicitors, for working in London rather than elsewhere. We have
evidence that experienced expert witnesses are already withdrawing
from Family Court work. These are senior clinicians, experienced
in family work. If professionals are available at the Green Paper
rates for family work, they will likely be more junior and inexperienced.
Making Timely Decisions for Children
Since late 2010, experts have found that solicitors
asking them to undertake assessments have had increasing difficulty
confirming instructions, such that letters of instructions often
do not arrive until after the agreed date for completion of reports.
It is difficult to know why this is happening, but it seems likely
that these serious delays arise at least in part from funding
problems resulting from the LSC's refusal to give prior authority,
which leaves all professionals unclear about the funding for necessary
work. If more experts withdraw from Family Court work, there will
be further delays in obtaining expert input to address serious
matters for children, which require timely decisions. This
has given rise to the impression that it is clinicians who are
delaying Family Court work, which they are not.
Expert witnesses are clinicians who agree to provide
their professional expertise for the Courts. Expert input helps
the Family Courts to determine matters such as if children have
been physically or sexually abused, who might have perpetrated
the abuse, what harm children have suffered and how they can be
helped to develop more healthily, whether parents are able to
care for their children, and the impact of mental illness and
substance abuse on families.
Common Sense versus Science
Claire Perry said at the Committee session on 1 March,
"is there not a danger that expert evidence is crowding out
common sense?" Those considering cases in Court use their
common sense and knowledge. There is no reason why clinical and
scientific information should inhibit common sense, but rather,
it informs it. A particular form of information that common sense
needs, which clinicians can supply, is 'counter-intuitive' information;
without this, sometimes a common sense view, which is often the
intuitive one, is seriously misleading.
Our members have submitted brief case vignettes to
illustrate our work. (see page 4)
Lack of a contractual basis for expert witnesses
As I said to the Committee, the LSC continues to
refuse to grant prior authority, so experts risk reduction of
their fees, after they have completed work that is agreed
by the solicitors and by the Court. In addition, the LSC continues
to seek "claw-back" of fees that were paid as long as
four years ago. The uncertainty about what experts will be paid
for current work, along with the possibility of demands that they
refund payments made in the past, is making it impossible for
experts to run a practice.
The simple point is that we are professionals, needing
to be paid for our time and work and for the overhead costs that
we have to carry for our necessary administrative support.
In the past, much expert witness work was undertaken
in NHS settings, and the NHS bore the cost of providing necessary
administrative support and a proper venue for assessments to take
place. The reality is that now, the NHS does not make this provision
available, free of cost. Some expert witness reports are provided
by NHS teams, which have to be fully costed to meet NHS budgetary
requirements. These teams charge rates that are significantly
higher than the rates set in the Green Paper, which means that
unless a special concession is offered to the NHS teams, medico-legal
work will no longer be financially viable within the NHS.
It is now likely that the bulk of clinical reports
are provided by private practitioners. Their rates, like those
now in the NHS, have to include the overhead costs of administrative
support and an office. Family Court work, which entails arranging
interviews with distressed or disturbed family members, sorting
court bundles and communicating with solicitors, requires that
clinicians are backed up by good quality administrative staff,
who make the work possible.
Expert witnesses, both in the NHS and privately,
also need the support of debt clerks to collect overdue fees and
accountants to file VAT and Revenue payments. Delayed payments
could be lessened if the LSC contracted directly with us. As the
LSC pay solicitors rather than paying experts directly for their
work, experts face hazards in being paid for their work—some
solicitors evade payment, some delay payment, and increasingly,
some solicitors go bankrupt. In addition, solicitors now say that
the LSC is delaying payment to them, so they cannot pay experts'
bills. Many solicitors do not pay bills for a year or longer,
so experts run their practices with large debts owed and overdrafts.
For some unpaid bills, experts apply to the County Court or use
debt collects. Some bills are never paid.
Expert Witnesses and CAFCASS
Expert witnesses are clinicians who are concerned
with the well-being of children. We have always viewed Guardians
as natural allies. Recently, we find that we often have to begin
our assessments before the Guardian is appointed. This
can lead to instructions that miss the essential questions, as
the preliminary work to focus on what the main concerns are has
not been done.
Recently, we have been concerned to have private
law cases where the LSC has withdrawn a parent's public funding
midway through the assessment period, on the grounds that the
CAFCASS report has gone against the parent. CAFCASS reporters
have told us that they now have to refrain from making
recommendations, because when they do, the LSC has been acting
as if they are final decisions and has withdrawn public funding
from the parent. This happens before the Judge hears the case,
and it results in abandoned assessments, parents representing
themselves in Court, and the risk that any decisions made at Court
will not hold, resulting to matters returning to Court.
March 2011
CASE VIGNETTES
OF EXPERT
WITNESS WORK
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 placement was with Grandparents.
At the point of placement, the Foster Carer alleged that one of
the children had talked about being abused when in care of the
Grandparents. Extensive investigations commenced. The child psychiatrist
was able to state clearly that the child would have no memory
of the time when the abuse was alleged to have occurred and could
demonstrate that the child had been influenced by the Foster Carer.
Disguised drug use
A father 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 father 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 father had resolved
his difficulties. The psychologist demonstrated marked inconsistencies
in the father's psychological tests. He challenged 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. 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.
Unexplained change in behaviour
A woman's parenting and relationships deteriorated
dramatically over two years. Her children were removed into care,
and her 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
interacted 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 autistic, but due to her mother's inappropriate
parenting, she had serious attachment difficulties.
Father-daughter incest
A psychologist assessed a father who had recently
resumed contact with his 12-year-old daughter and was requesting
overnight stays. The assessment revealed strong paedophilic urges,
incest fantasies 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 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.
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.
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