Mistaken identity

Unaccountable, operating in secret courts where they peddle their pet theories to meekly accepting lawyers, judges and social workers'¦ This is the unfortunate impression that many have of the expert witness in the family court. This picture has been conjured up by campaigning media enthusiastic to gain access to the private world of the family court where, if they are to be believed, miscarriages of justice abound and families are torn apart.

In April 2009, the government made changes to allow the media access to the family court by allowing accredited representatives to attend hearings; however, access to court documents and media reporting of hearings were still circumscribed. No substantive changes to the disclosure of court documents was made by the government although the president, Sir Mark Potter, in his April 2009 guidance makes it clear that judges should think carefully before refusing an application by the media for access to court documents. The restrictions on reporting the substance of any case and the identity of the child either directly or indirectly while the child was under 18 continued and it remained a contempt of court to publish such information.

Unsurprisingly, the media complained loudly that they had been sold a pup; so as the ink was hardly dry on the April 2009 guidance, justice secretary Jack Straw announced additional changes to the law on reporting family cases.

The Children Schools and Families Bill published in November 2009 is the government's proposal to extend media access to the family court and makes specific reference to the naming of expert witnesses. Most of the Bill is about schools, the provisions we are concerned with appear in part 2 of the Bill and sit rather uncomfortably with the main thrust of the Bill which draws extensively upon a number of independent reviews of current education and is intended to give effect to aspects of the White Paper 'Your Child, Your School, Our Future: Building a 21st Century Schools System' (Cmd 7588).

So, what is proposed and how will it affect solicitors instructing expert witnesses? Also, what will be the impact on vulnerable families?

Naming experts

Part 2 of the Bill (clauses 34-37) will restrict publication of information relating to family proceedings. Experts involved to provide evidence to the court are covered at clause 34 and in summary the Bill allows for the publication of the names of any expert witnesses who are paid. Other professional witnesses such as GPs and doctors or health visitors who are not paid for their evidence will not have their names disclosed, although there are indications that the government wishes all professional witnesses to be identified by the time stage 2 of the Bill comes into force.

The Bill is complex in the operation of these provisions and the naming of paid experts is only part of the overall extension of media access proposed. Extension of media access will come into force in two stages: stage 1 immediately, where paid experts will be named, and stage 2 some 18 months later only after the change brought about by stage 1 has been reviewed by the Lord Chancellor and the conclusions of that review have been placed before Parliament.

Broadly, the Bill proposes that children and families should have lifelong anonymity unless the court says otherwise. The media can report on the substance of cases subject to a number of conditions and providing that the parties and children are not identified. Some information is to remain confidential unless the court allows it to be reported. Just how compliant with article 8 ECHR this proposed extension of media access will be is already the subject of debate.

Sensitive and personal information

The stage 2 proposals represent a major change in relation to the treatment of 'sensitive and personal information' (SPI). This information (which is currently protected and will continue to be protected during stage 1) in the event that the Bill becomes law will become publishable once stage 2 is reached. SPI as defined in schedule 3 of the Bill as information given by a relevant child, information relating to a medical/psycho-logical/psychiatric condition or examination of any person which is expected to be referred to in the case and information relating to healthcare, treatment or therapy. This information will be reported as long as it is not identification information of someone within the case, unless they are a professional witness or unless the judge restricts publication. At first sight, these proposals seem, in spite of the caveat, to allow for very significant information to be available to the media.

Access to court documents

Most expert evidence is placed before the court in written form, and, if the evidence is agreed, the experts do not attend court. If experts are required to attend to give oral evidence, it will be based upon their written report to which currently the media have no access. The Bill does not change the provisions for access to court documents so any journalist who wishes to see a court report will have to make an application to the court with no automatic right of access.

Thus the current arrangements regarding documents are set to continue, although for how long must be the subject of speculation given the media interest. Permitting access to court documents '“ particularly expert reports '“ should be the subject of careful and thorough consultation with all interested parties; something which regrettably has been absent thus far.

Impact assessment

The absence of consultation by HM government on the extension of media access, the lack of evaluation of how media access has worked since April 2009, combined with the ongoing lack of understanding by the government and the media of how the family court works, does not inspire confidence. The 'Impact Assessment of the Legislative Reform to Reporting Restrictions Governing the Family Court' published by the MoJ with the Bill makes worrying reading. Reference is made to local authorities acting on behalf of children and no professional body such as the GMC or any Royal college were included in the consultation for the impact assessment. Given the multi-disciplinary nature of family law work, this is glaring oversight by the MoJ.

Damaging consequences

Experts play a crucial role in family proceedings and, in particular, care proceedings. They assist the court by ensuring that it has available the best and most comprehensive evidence upon which to decide the outcome of the case and the future of the family. Professional witnesses such as doctors who have their own professional rules may find themselves in significant difficulties. They are bound by rules of confidentiality which restrict what can be shared with third parties; a consultation for medico-legal purposes is an exception to the bounds of confidentiality and one recognised by the expert commissioned for the purposes of the court as well as any individual who takes part in that consultation. There are real fears that allowing media access to expert testimony and possibly expert reports will compromise the quality and integrity of that evidence.

The reason for this is not difficult to understand; children and families in the course of care proceedings frequently have to share highly sensitive, distressing and difficult information with their lawyers, children's guardian, social workers and any professional witness who sees the family for the purposes of assessment. Each one of those professionals will have to advise the client of the risk of the media being present in court, hearing the substance of the case and possible reporting upon it.

The expert assessments of consultant psychiatrists and psychologists which are so important at the welfare stage of any care case could be compromised by families not wishing to disclose important information for fear of it being reported in the media. The effect of these proposals is that they risk silencing vulnerable children and adults who are most in need of the opportunity to talk to a suitably qualified person who can advise the decision-making court about the best way forward.

Dealing with the changes

What should family solicitors be doing now to deal with these changes? Any letter of instruction should already include standard paragraphs about media access and, if the Bill becomes law, paid experts need to be told that they will '“ unless the court orders otherwise because of risk to them or their family '“ be named if the case is reported. They should also be advised that access to their reports may be sought although only after application at which the parties may make representation.

Whether the expert may be heard on any application to disclose is not clear. The president in Re X (Residence and Contact: Rights of the Media Attendance: FPR Rule 10.28 (4)) [2009] EWHC 1728 (Fam) 2009 2FLR 1467 touched on the issue of disclosure of expert reports. If an order is sought excluding the media from the hearing because of the sensitivity of material in expert reports, those reports will not be disclosed but a statement setting out the nature of the contents of the reports and issues covered in them will be made available to the media.

It will be extremely important for the instructed expert and the instructing solicitor as well as the other solicitors to carefully consider what effect media access might have upon the family being assessed and whether they will be able to approach any assessment with sufficient candor so that it will be of value to the court and the judicial process. Part 35 CPR and the President's Practice Direction (April 2007) are clear as to the overriding duty of the expert which is to the court. Anything which could affect the gathering of information needs to be discussed. If there are doubts that the family will be sufficiently open this needs to be considered with all parties and, if necessary, guidance sought. Expert assessments are expensive both in terms of time and money so they need to be as full as possible to have value.

The rationale for extending media access and for naming expert witnesses is (according to the MoJ) to allow for a greater trust in family courts. The government's own consultation during 2006 and 2007 made it clear that what was needed was not so much reporting of the substance of cases but that more information needed to be made available to the public at large as to how the family court works. Anecdotally, from the family court open day held at Croydon FPC in October 2009, it was clear that the mock trials of different types of family application drew most interest; and questions from the public were about procedure and how the court functioned rather than anything else.