Medical experts in family justice: recommendations for change

The final report and recommendations of the Working Group on Medical Experts in the Family Courts has been published.

It confirms that the pool of experts has been shrinking in recent years, despite the working group detecting “considerable interest” among the medical community in undertaking expert work. 

However, the report identified a combination of factors that were disincentivising senior registrars and consultants from taking on expert work, including remuneration, lack of support and training, and perceived criticism by lawyers, judiciary and press.

There were 709 survey respondents from the medical and legal professions.

One respondee referred to the “chaotic approach of some instructing solicitors and the absence of a standardised approach by solicitors which results in not receiving the relevant documents, getting dozens of emails with individual documents…”

35% of respondees felt that a concern about adverse criticism by a judge or critical cross examination had limited the pool of medical experts.

One reported: “Two close friends who would be strong candidates to undertake expert work for court have told me the rates do not compensate for the poor treatment they perceive that experts get in the Family Court. 

“They tell me this is a widespread view amongst medical clinicians.”

Court processes were a further key factor, though the report stated that some of those “ought to be capable of effective resolution even in the short-term”.

The report comes two years after the working group was set up to identify the scale and causes of the problem of medical expert witness shortages in the family courts, and to identify possible solutions.

A consultation on the working group’s draft recommendations closed on 31 January this year and the final report sets out its final recommendations in light of the consultation feedback.

The chair of the working group, Mr Justice Williams, said in his introduction to the report that “the protection of the vulnerable child is the responsibility of all”.

He also observed that the working group accepted that the problem of shortages extends beyond medical experts to other health professionals.

The group found that the challenges in securing expert witnesses were experienced across the country and in a wide range of specialisms. 

This had the key impact of creating delay, though concerns were also cited around the quality of some expert evidence which, the report noted, appeared likely to be linked to the shortages.

The report sets out 22 recommendations, not all of which lie within the power of the legal profession or the working group itself. 

In the legal context, the recommendations include amending the Legal Aid Agency guidance on experts’ payments (changes have already been implemented); ensuing adherence by lawyers and the judiciary to the provisions of FPR Part 25 in relation to expert instructions; and ensuring experts are treated appropriately during court hearings, within judgments and thereafter.

It also recommended the creation of greater training opportunities for medical professionals, such as mini pupillages with judges and cross-disciplinary training courses.

In response to what he described as a “most thorough piece of work”, president of the family division Sir Andrew McFarlane, said: “In recent years it has become increasingly difficult for the family justice system to find experts who are willing to give evidence in family court proceedings”.

Sir McFarlane added: “Helpfully the working group discerned a silver lining in the covid-19 cloud in that remote hearings demonstrated real advantages in making attendance at court hearings less disruptive of clinical practice and also in the convening of multi-disciplinary meetings.”

“It is my hope that a reinvigorated expert witness workforce will enable the family court to continue to deliver the best outcomes for children, young people and families”, he said. 

Victoria Walker, a partner at Moore Barlow welcomed the recommendations, saying family lawyers are “hard-wired to problem solve and help people”. 

“It is hugely frustrating”, she added, “to not be able to progress matters due to the difficulty in finding an appropriate expert for family court proceedings and it is also hugely at odds with the ‘no delay’ principle in children matters.”

She commented: “One can’t begin to imagine the emotional impact on the family whose life is on hold pending a court outcome not to mention the increased costs.”

Implementation of the recommendations will be monitored by Sir McFarlane and Mr Justice Williams over the next 12 months.