Safety in numbers

Major procedural changes took place within the Family Court system at the end of January 2013 (see ‘Tougher test for family expert witnesses’). One aim is to streamline proceedings, and save money, by limiting the number of expert witnesses who can give evidence.

These changes stem from Family Justice Review final report published in November 2011, which details major reforms throughout the Family Court system. There were three key recommendations:

1. A six-month time limit in care cases.

2. Using mediation when people separate so that the courts are ?only used in extremis.

3. Changing the procedures so that agencies and professionals work together in a timely manner to provide a positive experience for children and families.

?While the six-month time limit may impose difficulties in accessing experts, it is the third recommendation that will have the major effect. Its purpose is entirely laudable as it aims to speed up the process and eliminate the ever-increasing backlog of cases.

In 2012, it was estimated that 20,000 children were awaiting outcomes that would significantly affect their futures. ?In the important area of child protection, it was taking a year or more for cases to come to court; such a delay could have disastrous consequences.

One way to streamline procedures suggested in the Family Justice Review was to limit the number of experts, such as doctors, psychologists and social workers, who could be called by either side. Judges control the admissibility of expert evidence if it is “reasonably required”, but the review suggests that a more stringent test should be applied and only evidence “necessary” for the court to reach its decision should be allowed.

As part of this process, the court must consider the “impact on the timetable and conduct of the proceedings and the cost of expert evidence”. This is in line with the recommendations of Mr Justice Ryder in his comprehensive review, Judicial Proposals for the Modernisation of Family Justice, published July 2012.

In addition to the change in the test for permission to introduce expert evidence, the factors to which the court should have regard in reaching a decision were listed, including: the impact on the timetable, the conduct of the proceedings and the cost of the expert evidence.

More factors were specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case – in other words the use of a “professional witness” rather than ?an independent “expert witness”. ?Such witnesses, however, would not ?be independent.

Immediate criticism

There was immediate criticism of the attempt to limit litigants’ access to experts, however. Family Division president Sir James Munby wrote: “There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is ?focused and relevant.”

He added: “This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.” Putting the change into context, he wrote: “This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

These interim procedures, which came into force on 31 January 2013, will be replaced by the Children and Families Bill, should it become statute, which seems likely. According to Piers Presdee QC, the underlying rationale for such sweeping legislative change is that self-regulation has failed and has led to considerable criticism.

Hired guns

Forensic psychologist Professor Jane Ireland examined more than 127 expert witness reports used in family court cases in three areas of England. She found that 90 per cent were produced by clinicians who no longer practise, but instead earn their living entirely as ‘professional ?expert witnesses’ paid for by council social work departments. Sixty-five per cent of the reports were poorly or very poorly carried out.

This has led to accusations that many of the experts are ‘hired guns’ paid to write precisely what social workers are looking for and that the courts condone this. It is partly to prevent this ‘gravy train’ that the reforms have been instituted. Clause 13 of the bill gives a comprehensive account of when expert testimony can be sought and will bring into statute the current changes

All well and good. The reforms seem reasonable and should streamline the system, reduce waste and provide a fit-for-purpose service for vulnerable children and families. Probably only a few curmudgeonly experts would object on the grounds of lost income.

However, when examined closely something strange is happening. One commentator has suggested family law appears to be under attack: that there is an assumption it is largely inquisitorial whereas, in reality, it is adversarial in the tradition of English law.

As a result, certain “long cherished assumptions” are lacking in substance. I would argue, from the expert witness view, that the limitations being imposed under the new procedural rules are reinforcing the unwarranted inquisitorial ?assumption by limiting the parties’ ?access to expert witnesses.

Long history

Expert testimony has been used from the Middle Ages to advise the court in its decision-making process and has been continuously refined ever since. Such evidence must be “outside the experience of a judge and jury” (R v Turner, 1975), in other words any evidence within ‘normal’ experience ?is not admissible.

This can have unfortunate consequences. What might be a matter of general belief may lack scientific evidence and, indeed, have been disproved.

As a psychologist and expert witness, I am well aware that different legitimate theoretical backgrounds may place different weight on evidence of children and families obtained by assessment, interview and observation. Thus, in the adversarial context, one side may deploy an expert who, quite reasonably, produces one argument in their advice to the court while the other side produces an expert who produces an equally legitimate counter-argument. It is then a matter for the court to decide which advice to follow.

Added concern

A further complication is that more than one expert, either from the same profession or from complementary ones, such as psychiatry and social work, may be required to provide comprehensive advice. Not unreasonably, both sides will wish to choose their own experts unless they decide to use a single joint expert (SJE).

However, such a decision, in the interests of justice, should be made by the contesting parties and not imposed on them by the court, which the new rules seem to imply.

Either restricting the number of experts or imposing a SJE may mean that potential advice to the court is at best limited and at worst biased. Important areas may be omitted from evidence. Even worse, a single expert may be expected to give opinion beyond their area of competence and expertise, which could cause conflict with their regulatory body. Thus a social worker, for example, could not give expert evidence on psychological developmental issues.

Despite Munby’s opinion, psychology is not simply “common sense”. It is more than that. It is the application of science to the real world. Within the NHS, the need for partnership working to provide the best service possible is recognised.

Within the Family Court system, ?given the complexity of many of the issues raised, such partnership should follow suit. This could mean more rather than fewer experts may be required to form a true picture.

Attempting to limit the number of experts smacks of the inquisitorial ideology rather than the adversarial and thus risks great injustice.

Clive Sims is a chartered psychologist, chartered scientist and member of the Society of Expert Witnesses