Same, same but better
The new national standards should add quality assurance to children proceedings in the Family Court, claims Victoria Sterritt
Justice Minister Lord McNally, speaking at a conference for expert witnesses, identified that: “It is important that expert witnesses are used effectively in deciding the future of vulnerable children.”
On 1 October 2014, new national standards, designed to raise the quality of expert witnesses and end unnecessary delays in the family court, became law in England and Wales.
Clear need
The changes are encompassed within a new practice direction to part 25 of the Family Proceedings Rules, namely practice direction 25B – the duties of an expert, the expert’s report and arrangements for an expert to attend court.
The practice direction itself is supplemented by two user-friendly, detailed appendices, that set out the accreditation particular experts should have in relation to both statutory and non-statutory regulated areas.
The changes form part of the wider wave of reform that is sweeping over the family courts in England and Wales, in a bid to reduce the unnecessary delay, costs and uncertainty often inherent in family proceedings.
The new standards were developed as a result of work done by the Ministry of Justice and the Family Justice Council. As a result of this collaboration and, drawing from the experiences of an Experts Working Group, a consultation paper was produced that outlined a clear desire, or more accurately a clear need, for a set of minimum standards for experts. The majority of the proposals contained within the subsequent consultation paper now form practice direction 25B.
In a nutshell, the changes mean that only qualified, experienced and recognised professionals will be allowed to give evidence as expert witnesses in family proceedings relating to children. The change builds upon the new laws implemented in April 2014, which first introduced the test of necessity before expert evidence could be submitted.
Expert evidence will now only be commissioned where a judge considers it necessary to resolve a case. Further, the necessary evidence will be delivered by an expert who has first satisfied the minimum national standards. The theory behind the change is that expert evidence is filtered twice: only top-quality evidence is presented, as and when the judge has deemed it necessary.
Familiar theme
There is more than an air of familiarity when reading through the provisions of practice direction 25B. In fact, the provisions do not so much alter what was already in existence, as develop and build upon it. Practice direction 25B reiterates the general principles of what came before. The following examples illustrate its organic nature.
The definition of an expert, defined at paragraph 2.2 PD25B, remains unchanged. However, reference is made to section 13(8) of the Children and Family Act 2014 when expressly stating who is not to be considered as an expert and accordingly will not be required to comply with the new provisions, for example, a Cafcass officer.
An expert in family proceedings still has an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions and/or by whom the expert is paid. This is set out at paragraph 3.1 of the PD.
Paragraph 5.1 contains the necessity requirement that was introduced in April 2014. The court is under a duty to restrict expert evidence to that which, in the opinion of the court, is necessary to resolve the proceedings.
The preliminary enquiries that an expert should expect to receive are, again, well established and are set out at paragraph 6.
The particular duties of the expert listed at paragraph 4.1 are well founded. However, the PD goes further than ever before at paragraph 4.1(aa) when stating that, in children proceedings, the expert shall comply with the standards for expert witnesses as set out in the annex to the PD.
Eleven minimum standards are incorporated within the annex (see box). The extensive standards apply to every expert, regardless of their field of practice, or country of origin.
A similar approach is identified when looking at the other major development at paragraph 9.1 and the contents of the expert report. It reflects what has been in existence to date, but further inspection reveals a revised, more onerous, statement of truth where the report relates to children: “I also confirm that I have complied with the standards for expert witnesses in children proceedings in the Family Court which are set out in the annex to practice direction 25B– the duties of an expert, the expert’s report and arrangements for an expert to attend court.”
The PD cites FPR part 17.6 as a stark reminder for any expert that verifying the above statement erroneously could result in proceedings for contempt of court.
Added dimension
The reforms are clearly to be welcomed as they bring about an added dimension of quality assurance in an area of the law dealing with children and young people. The standards are comprehensive, obvious and apply to any expert, regardless of their field of practice or country of origin.
Therefore, it is difficult to see how they could be easily evaded and the positive impact should become self-evident. However, the true impact will only become apparent as practitioners implement the standards over the coming months. It remains to be seen if the new requirements are sufficiently onerous to dissuade experts, or if, in actual fact, the PD has simply codified standards that the diligent expert and solicitor already adhered to. SJ
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Raising the bar
The minimum standards for expert witnesses:
1. The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.
2. The expert has been active in the area of work or practice (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case and is familiar with the breadth of current practice or opinion.
3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.
4. The expert is up to date with continuing professional development appropriate to their discipline and expertise and is in continued engagement with accepted supervisory mechanisms relevant to their practice.
5. If the expert’s current professional practice is regulated by a UK statutory body, they are in possession of a current licence to practise or equivalent.
6. If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation and experts in exclusively academic appointments), the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case-by-case basis. Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care. If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals), but consideration should be given to appropriate professional accountability.
7. The expert is compliant with any necessary safeguarding requirements and information security expectations, and carries professional indemnity insurance.
8. If the expert’s current professional practice is outside of the UK, they can demonstrate that they are compliant with the FJC’s ‘Guidelines for the instruction of medical experts from overseas in family cases’.
9. 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.
10. The expert has working knowledge of, and complies with, the requirements of practice directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.
11. The expert should state their hourly rate in advance of agreeing to accept instruction, and give an estimate of the number of hours the report is likely to take. This will assist the legal representative to apply expeditiously to the Legal Aid Agency if prior authority is to be sought in a publicly funded case.
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Victoria Sterritt is a solicitor in the family team at Seddons