Government unveils new quality assurance standards for family experts

13 Nov 2013News

Experts still expected to seek feedback under new rules to come into force in April 2014

Only qualified and practising family experts will be allowed to appear as witnesses in children proceedings under new standards unveiled this week by the Ministry of Justice.

The new standards will require experts to demonstrate they are active in the area relevant to the case and have sufficient experience.

"These new standards put the welfare of children at the heart of the system, so only the highest calibre evidence is permitted and cases resolved quickly," family justice minister Lord McNally (pictured) said.

The new rules, scheduled for implementation in April 2014, are the latest in a raft of government changes intended to tackle delays and cut down the cost of family justice in the wake of the Norgrove review.

These include the controversial 26-week time limit for care proceedings, which was rolled out across England and Wales over the summer.

In addition to competence and experience in the area relevant to the case, experts will have to have "working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and the cultural competence skills to deal with the circumstances of the case", the government's response to the consultation on family law experts says.

Experts will also have to be "up to date with continuing professional development appropriate to their discipline and expertise" and "in continued engagement with accepted supervisory mechanisms relevant to their practice".

Requirements will vary depending on whether experts are members of a regulated profession or not, and whether they are regulated by a UK or non-UK statutory body.

Experts regulated by a UK organisation will have to hold a licence to practise or equivalent. Non-UK experts will have to comply with the Family Justice Council's guidelines for the instruction of medical experts from overseas in family cases.

Where experts are not practising in an area subject to statutory registration, such as child psychotherapy or mediation, they will be expected to "demonstrate appropriate qualification and/or registration with a relevant professional body on a case by case basis."

The earlier version of the standards circulated for consultation required experts to "seek appropriate feedback from the legal representative regarding the outcome of the case, and the value and weight placed on the expert's own evidence".

This was removed following objections from many of the 140 respondents and replaced with a looser requirement.

Standard 9 now reads: "The expert has undertaken appropriate training, updating or quality assurance activity - including actively seeking feedback from cases in which they have provided evidence - relevant to the role of expert in the family courts in England and Wales within the last year".

Watch Lord McNally and Mr Justice Ramsey discuss the issues at the conference.

LEGAL AID LAWYERS' VIEWS IGNORED

The consultation on experts in family law proceedings ran for two months in early summer 2013. It was, Lord McNally said, an important part of the government’s "focus on the need to reduce delay, ensures that decisions are child-focused and reduce duplication in the system". Setting minimum standards for experts and requirements as to how evidence would be produced and presented formed a significant part of the recommendations.

The impact of the legal aid cuts on the use of experts, however, remained a point of contention. In a speech at the Bond Solon Expert Witness conference last Friday (8 November 2013), McNally acknowledged that "the costs of proceedings more generally are under ever greater scrutiny" and that changes to legal aid payments to date, with rates to experts set to be reduced even further later this year, "will have an impact". Despite this, the consultation response declined to consider comments on the effect on legal aid, as typified in one representative body’s comments that; "There is a tension between ensuring that experts are highly qualified, highly respected specialists, and the incoming cuts in experts’ fees as proposed in the MoJ’s Transforming Legal Aid consultation."

On the basis that the consultation response came jointly from Ministry of Justice and Family Justice Council - whereas responsibility for legal aid was the former’s alone - it would "not be appropriate for this response…to respond formally to the issues raised regarding legal aid." Respondents to whom legal aid policy matters "are directed to the Ministry of Justice’s response to the transforming legal aid consultation". A response unlikely to be viewed as satisfactory by many family lawyers at this time of significant and wide ranging change to the family justice system.

NO OBVIOUS FEEDBACK SOURCE

"The requirement for the expert to seek feedback from the instructing solicitor may be pie in the sky," said Mark Solon, solicitor and managing director of Bond Solon Training.

"Solicitors are already being asked to work more quickly for less money. Unless the solicitor is being paid to give feedback, he or she is unlikely to do so. It is impossible for the judge to give feedback as it might provide grounds for an appeal if the expert is denounced. The expert's peers are equally unlikely to have the time or the resources to give feedback. It is in the interests of the child for the matter to be dealt with expeditiously, but many experts have day jobs and already find it hard to comply with court time limits."

Solon also said that was no definition of what would be regarded as "appropriate training" for experts. "The new standards being set, which are minimum standards, require investment in thorough training which is independently assessed, away from the professional bodies themselves which have a vested interest in acting as the mouthpiece of the expert but which lack the required independent view to serve the interests of the court as a whole."