Doing it for the kids

Practitioners will be aware of the spotlight that has recently been on social services, particularly in Haringey following the case of Baby P. Despite being seen by social workers and medics, no proceedings were taken in respect of Baby P. Had an application for a care order or supervision order been issued, it is likely that the case would have involved the use of expert evidence '“ at least a paediatric assessment of the child.

Expert witnesses often have a key role in care proceedings, providing independent assessment, knowledge and expertise. Their role has been the subject of increased publicity in recent years, often critical (such as the case of Professor Roy Meadows) and this has lead to a reluctance in some fields (particularly medical) to act as expert witnesses. For cases issued since 1 April 2008 the guidance in the Practice Direction, Experts In Family Proceedings Relating to Children ('PD') should be followed (see www.hmcourts-service.gov.uk).

What kind of expert?

Whether an expert is required and, if so, what kind of expert depends on the issues in the case. Many care cases concern the effects on the child of the care he has received from his parents such as witnessing domestic violence or having a chaotic lifestyle, and this will often require the instruction of a psychologist to assess the parents and possibly the child(ren).

Capacity assessment

An assessment of capacity to give instructions will be needed if this is a concern. A capacity assessment can be carried out by a psychologist on a letter of instruction by that parties' solicitor and should be obtained as soon as possible.

If a parent is thought to have mental health issues, or has a diagnosis of a mental health disorder, then a psychiatrist is the appropriate expert to assess him and to provide a psychiatric assessment, opinion as to current mental health and any impact on his ability to parent and to engage meaningfully with professionals, and opinion on any treatment/therapeutic needs (including timescale and likely prognosis). If there is a history of drug or alcohol misuse then the expert should be asked to provide a history of the misuse and any involvement with services to address it, including the level of engagement with such services and future treatment or therapeutic needs. In terms of parenting capacity, an independent social worker or residential assessment may be needed. Independent social workers may be instructed when the local authority is not planning to assess or fully assess a parent '“ perhaps because there have been previous proceedings in the recent past in respect of siblings, and the local authority's position is that there is no or insufficient evidence that the parents have changed; or if a family member is putting themselves forward as a carer for the child but the local authority has carried out a negative viability assessment. An application under s.38(6) of the Children Act will be necessary, but be aware of funding issues '“ costs might be directed to be paid under the parents' public funding certificates. A residential parenting assessment often lasts up to 12 weeks and is suitable if the issues are in relation to practical parenting '“ for example a young first-time mother. Remember that the Legal Services Commission will not fund even part of the costs of a residential assessment.

Non-accidental injury

In cases of suspected non-accidental injury medical experts will be required, having specialisms appropriate to the alleged injury, and a paediatric overview may also be appropriate. If the injury is a fracture a paediatric radiologist should be asked to give an opinion as to the cause of the injury, whether it is likely to be accidental or non-accidental and if it is consistent with an explanation given by the parents, including timescale.

If the child has head injuries, then as well as a radiologist consider instructing an ophthalmologist if there is any question of damage to eyes or vision.

Who to instruct and when

Essentially the question is whether evidence is required which 'will assist the court by providing an opinion on an issue which is not within the skill and expertise of the court' (PD para.1.3). Once the area of expert evidence has been identified the question is the identity of the individual expert. Here there really is no substitute for knowledge of the expert and their work/particular area of expertise within their field. Within any court there are names heard more frequently than others as being instructed. If you are not familiar with an expert being suggested, get their CV and ask colleagues for their experience of the proposed expert.

Expert evidence should be sought as soon as possible, thereby enabling the case to be timetabled in accordance with the Public Law Outline. The court's permission will almost always be required if documents are to be disclosed or the child is to be seen/assessed. Permission should be sought at the case management conference (PD para.1.9). The proposed expert should be approached and given certain information (set out in PD para.4.1) to ensure that he is suitable and to determine the timescale for the work to be carried out. The PD also details the information to be included by the proposed expert in their reply to the preliminary enquiry, and specifies the information to be detailed in a proposal to instruct an expert, the content of the draft order and the letter of instruction. In care proceedings the letter of instruction will usually be drafted by the solicitor for the child, who will be the lead solicitor (remember that if it cannot be agreed, a written request can be made to the court to settle the letter of instruction).

Avoiding problems

The most common problem is where experts have differing views or further clarification is needed on an expert's report. Any party may put written questions to the expert for the purpose of clarifying their report within 10 business days of receipt of the report (PD para.6.1). Where there are or appear to be differing views between experts these may be resolved by sending the other's report to each expert and asking for further comments, particularly in light of their respective areas of expertise. Often one expert may defer to the other's experience or particular expertise. But if not, there will need to be communication between the experts and probably an experts' meeting. This will normally be organised and chaired by the child's solicitor. The timescale for the preparation of the meeting is set down in para.6.3. The agenda will usually consist of questions each party wishes the experts to consider. The meeting will be minuted and a statement of agreement and disagreement will be prepared and must be agreed and signed by all participating experts.

If a party does not accept the opinion of a jointly instructed expert it will be difficult to persuade the court that another expert should be instructed. Where a party does not accept an agreement reached at an experts' meeting the PD provides for the court and other parties to be informed in writing including the reasons that the agreement is not accepted. Arrangements will then need to be made for the expert to give evidence (by video or telephone link if appropriate). After the final hearing the lead solicitor will inform any expert of the outcome of the case and the use the court has made of his opinion.

Problems will also arise if an expert provides an opinion based on one version of disputed facts. The letter of instruction must clearly state that it is the province of the court to resolve disputes of fact, not that of the expert. If an expert is instructed after findings have been made by the court then the letter of instruction should refer to the findings which have been made and remind him that it is not for him to seek to go behind those findings.