Operations of the Family Courts - Justice Committee Contents

Written evidence from the Consortium of Expert Witnesses to the Family Courts (FC 18)



—  This is a submission on behalf of the Consortium of Expert Witnesses to the inquiry into the operation of the Family Courts.

—  We describe the work of the expert witness.

—  We address problems related to the adversarial environment and funding.

—  We make recommendations for pre-hearing meetings and for direct funding of experts, at a rate that is commensurate with their costs and their level of experience and expertise.


1.    We are a group of over 300 expert witnesses from different disciplines, all involved in work for the Family Courts. We include paediatricians and other medical and surgical specialists, forensic physicians, adult psychiatrists, including forensic and perinatal psychiatrists, child and adolescent psychiatrists, psycho-analysts, clinical psychologists, clinical neuropsychologists, educational psychologists, child and adolescent psychotherapists, adult psychotherapists and social workers.

2.    We work in public and private law cases. Some of us work as individual experts, and others work as part of a multi-disciplinary team.

3.    Our group formed a year ago in response to proposals from the Ministry of Justice, which we thought could impact negatively on the supply of expert input to Family Court proceedings.


4.    Expert witnesses are instructed by a solicitor representing one of the parties in a Family Court case. Often, the solicitors agree a joint letter of instruction, which means that the solicitors for all parties contribute to the instructions.

5.    Since the Public Law Outline was released, we have also prepared reports for Local Authorities who are seeking opinions prior to initiating proceedings.

6.    Expert witnesses (in distinction to the legal term, "professional witnesses", eg a treating psychiatrist), are skilled and experienced professionals who are asked to provide opinions to the Courts about complex matters. These range from medical questions—such as, was a child's injury accidental or non-accidental?—to psychiatric issues—such as, what is a parent's mental health diagnosis?—to psychological issues—such as, is a parent learning disabled? We are asked to consider the impact of these matters on the lives of the children and the future for the family.

7.    Our opinions are formed on the basis of our investigations—eg medical examinations, interviews, psychometric tests—reading the Court papers, and preparing reports in which we use our experience to analyze this information and provide opinions for the Courts on matters that are raised in the instructions we receive.

8.    This is work that is an integral aspect of safeguarding children. We consider that our duty is to assist the Court in reaching the best outcome for the children who are the subjects of these proceedings.

9.    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. The work requires not only examinations and interviews, which generally take place in the working day, but also reading extensive bundles of court papers and writing complex and lengthy reports, activities which most experts do in the evenings and at weekends, when they can be undisturbed. We have to make ourselves available to answer further questions, often at short notice, months after we have completed the report. We may have to attend experts' meetings, in person or by telephone conference, and we have to set time aside to attend Court. Experts routinely work additional hours, beyond those that they include in their bills.


10.  We wish to call to the attention of the Select Committee two inter-related issues that hinder our work for the Family Courts: the adversarial climate and our funding.


11.  We recognise that Court cases usually arise from disagreements between the parties. 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.

12.  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.

13.  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. We find that in some cases, we are blocked from undertaking what we see as the necessary investigations.

14.  We suggest that Court proceedings, at least to the extent that they deal with expert evidence, move the emphasis from an adversarial to a consensual approach. For example, it is not uncommon that we find that our discussions with legal representatives outside the courtroom can be more fruitful in taking matters forward than contentious questioning when we are on the witness stand. We recommend pre-hearing meetings, including expert witnesses and representatives from all the parties, in which discussion rather than cross-examination could be used constructively to address difficulties within a family.


15.  The funding for expert witness work, when the parties are publicly funded, is complex. 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 (eg the Local Authority, the mother's solicitor, the father's solicitor, and the children's solicitor). For the publicly funded parties, we are asked by the solicitor to do the work, but the Legal Services Commission decides whether and to what extent to pay our bills. Yet, we have no direct negotiation with the LSC, as they pay solicitors, from whom we then have to seek our payments.

16.  This system of indirect payments leads to multiple difficulties. Most expert witnesses are spending increasing time in prolonged negotiations about funding, both before and after we complete a report. Although the Ministry of Justice is engaged in a review of Expert Witness Fees (at which our Consortium is represented), the Legal Services Commission recently has begun rejecting fees that were accepted in the past, now routinely labelling them "excessive".

17.  Many experts now ask their instructing solicitors to obtain prior authority from the LSC for the fee estimates we submit, but most often, the LSC refuses to consider prior authority. The negotiations before we start work our increasingly delaying us from beginning our assessments.

18.  We are seeking assurance that the fees we agree with the solicitors at the start of our work will be paid upon completion.. Even though we carry out the investigations agreed with our instructing solicitor, answer the questions for which we are instructed and issue a bill that is for the exact amount that of the estimate that was accepted by the instructing solicitor, we are finding that our bills are not paid. Some solicitors, even though they receive the money from the LSC, do not pay us (see paragraph 20). Also, the LSC, has now taken to saying that fees are "excessive" without any explanation of how they reached that view. We are then asked to lower our bills and sometimes asked later to refund money that was paid to us.

19.  This is an impossible situation. It is akin to a client asking a builder to build a house, agreeing a plan and a price, and then when the house is built, the client says that he will only pay for half the rooms because the house is "excessive".

20.  Another difficulty we encounter in obtaining payment is that 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. All these difficulties increase the cost of maintaining an expert witness practice.

21.  We have recommended to the Ministry of Justice that expert witnesses should be paid directly by the Legal Services Commission, at rates that are agreed before an assessment begins. We believe that that prompt payment at pre-agreed rates would allow us to lower our fees.

22.  Our fee rate should reflect the level of experience we provide, particularly bearing in mind the degree of increasing professional risk faced by experts who work in the Family Courts.

23.  The Legal Services Commission appears to think that fees are simply pocketed by expert witnesses. They do not consider that organising these assessments requires an infrastructure that includes a trained, high quality secretarial staff, a higher rate of professional indemnity/defence, provision for appropriate interview and waiting rooms, enrolling in courses and attending conferences to keep up to date with developments in our field, and communication between members of the professional team involved in any given case.

24.  Reducing fees would likely force NHS Trusts to give up this work, as it would no longer meet the costs of professional staff salaries and institutional overhead. We understand that presently, many NHS Trusts are costing senior consultant time at over £200 per hour.

25.  Similarly, many private practitioners, certainly those who have sufficient experience, would find it impossible to work for the proposed fees and still carry the needed support staff and meet the cost of other required expenses. The support required by expert witnesses includes quality assurance checking procedures and peer review to ensure that reports meet our expected standards; elements already identified by the Bearing Good Witness Pilot as essential to family court expert witness work.

26.  We are concerned also that the LSC plans to start capping travel rates at a very low figure. We assume that the presumption behind this is that experts can do other work whilst travelling and that travelling is not part of the work that is required for our assessments; this is not true. Home visits, observations of contact and prison visits are time-consuming work. The reality is that travelling by car or by public transport is increasingly onerous. Experts cannot do other work simultaneously because the conditions of travel are not conducive to it, including the need to keep court papers confidential. Hence, the proposed rate for this needed travel time is too low.

27.  To make travelling uneconomical for experts would discriminate against parents who have limited money and are afraid or unable to travel; also, parents who are taken up with childcare and so find it difficult to travel to appointments. It also would discriminate against families who live at a distance from the necessary expert.

28.  Similarly, the plan to abolish cancellation fees fails to recognise that missed appointments often are a feature of work with families who come before the Courts. If experts cannot charge for their time, which they have held open in good faith, it will not be financially feasible to offer further appointments. We would then be faced with filing reports on slim or insufficient evidence, which could compromise parents' rights under the Human Rights Act.

29.  We are asked to hold our time open to attend Court, often with dates booked months in advance. If we are then told a day or so before that we are no longer needed, we cannot suddenly put in place income-producing work. The Courts could not function if we resorted to the alternative of refusing to hold time open and made ourselves available if it fitted our schedules at short notice. To do so would be unacceptable; it is equally unacceptable for professionals not to be paid for time that they have reserved for many months.


30.  Regarding confidentiality in the Family Courts, we are concerned that our work is made more complicated by the possibility that journalists will be granted access to our reports, which often reveal intimate personal and family details; we are concerned that the fear of public exposure will compromise what families are willing to tell us.

31.  Regarding CAFCASS, we are concerned about the late appointment of Guardians to cases, as we find that robust representation of a child's needs by the Guardian is important. The Guardian often helps the Court to focus on the child's needs.


32.  The expert role is valuable because it integrates the existing evidence in a case and the expert's new findings. This can help the Court to understand why the parents and children are like they are and what will happen with or without needed interventions. Experts can contribute to resolving an impasse and casting new light on difficult problems.

33.  If senior professionals no longer are willing to work for the Courts, their input and expertise will be lost, at a cost to children's lives and well-being.

34.  Also, we will not be able to train junior professionals to do this work. Younger professionals are less prepared already to risk their career because of recent cases where experts were criticized in the media. A severe reduction in fees will result in mainly attracting those who are less than adequate. This will have a lasting negative impact on the quality of expert evidence available to the courts.

35.  Most of us work in the Family Courts because we believe in the importance of contributing to understanding the needs of children. We are grateful to the Family Courts for their willingness to fit in our Court attendance at times that make it possible for us to carry out our other clinical duties. We believe that if the changes we have suggested can be made, the system will be better for children and families, as well as for expert witnesses.

September 2010

previous page contents next page

© Parliamentary copyright 2011
Prepared 14 July 2011