Written evidence from the Consortium of
Expert Witnesses to the Family Courts (FC 18)
THE OPERATION OF THE FAMILY COURTS
EXECUTIVE SUMMARY
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.
INTRODUCTION
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.
EXPERT WITNESS
WORK IN
THE FAMILY
COURTS
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 questionssuch as, was a child's
injury accidental or non-accidental?to psychiatric issuessuch
as, what is a parent's mental health diagnosis?to psychological
issuessuch 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 investigationseg medical examinations, interviews,
psychometric testsreading 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.
IMPEDIMENTS TO
OUR WORK
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.
THE ADVERSARIAL
CLIMATE
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
questions50 is not uncommonbecause 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.
FUNDING
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.
OTHER MATTERS
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.
OUR CONTRIBUTION
TO THE
FAMILY COURTS
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
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