Operation of the Family Courts - Justice Committee Contents

Supplementary evidence from the Consortium of Expert Witnesses following the evidence session on 1 March 2011 (FC 63)


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


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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Prepared 14 July 2011