Family Justice Review
Highlights of the recent Family Justice Review for expert witnesses
The Family Justice Review Panel report (see http://www.justice.gov.uk/publications/policy/moj/2011/family-justice-review-final) contains several recommendations that are of particular significance for both expert witnesses practising in the family courts and those who instruct them. Announcing publication of the report, the Panel said that its recommendations were aimed at tackling ‘shocking delays in the system’ and generally improving the family justice system.
The 155-page report devotes a little over nine pages to matters relating directly to expert witnesses. The section commences with a somewhat ambiguous statement as to the usefulness of expert evidence in child cases in the family courts. Acknowledging that expert evidence is ‘often necessary to a fair and complete process’, there has been a trend towards what the Review Panel believes is ‘unjustified use of expert witness reports, with consequent delay for children’. It will be apparent, therefore, that this section of the report begins with a rebuttable presumption that there is an overuse of expert witnesses with a consequent increase in the length of hearings. According to the Ministry of Justice (MoJ; see Research Summary 5/11 published November 2011), 92% of all family cases involve expert reports and there is an average of 3.9 reports per case.
The Review continues by saying that the court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved, and that independent social workers should be employed only exceptionally. How easily does this sit with the pledge to uphold and protect the rights and interests of the child? Surely the child (and, indeed, the parents) should be entitled to best evidence and not merely such evidence as is available already, often from professionals whose first duty is not to the court.
According to the Review, independent
social workers should be used only rarely, and
research should be commissioned to examine the value of residential assessments of parents. Judges must direct the process of agreeing and
instructing expert witnesses as a fundamental
part of their case management role. Moreover,
judicial control needs to be exercised over
letters of instruction. Amen to that!
Quality and Supply
Turning to the question of the supply and quality of expert witnesses, the Review Panel report recommends that the Family Justice Service (a dedicated and managed quango the report recommends be created) should take responsibility for working with the Department of Health and others to improve matters. As a sort of general catch-all provision, the report makes the wishful recommendation that the Family Justice Service should agree and develop expert witness quality standards applicable to the family courts.
The report goes on to suggest that there should be another pilot of multi-disciplinary expert witness teams, building on the previous pilot that arose out of the Chief Medical Officer’s 2006 report Bearing Good Witness. It acknowledges, however, that some (primarily experts themselves) have expressed doubt that multi-disciplinary teams of experts would have the flexibility and independence of individual experts. But it isn’t just experts who have concerns about what might be called ‘opinion by committee’.
The original, somewhat small, pilot ran between April 2009 and March 2011. Six teams were set up, but they attracted only 31 cases. Indeed, two of the teams attracted no cases at all! The evaluation report commissioned by the Legal Services Commission (LSC; Tucker, J. Moorhead, R. and Doughty, J.  Evaluation of the ‘Alternative Commissioning of Experts Pilot’ Final Report) concluded that concerns (particularly amongst lawyers) about the implications of team-based expert witness services inhibited take-up. Furthermore, Tucker et al. stated that the take-up under the pilot scheme raised issues regarding the viability of multi-disciplinary teams.
Of course, even if experts and lawyers were fully behind the idea of multi-disciplinary teams providing expert evidence, there is still the issue of resources. The evaluation report said:
‘Resourcing such teams, and ensuring that they have the necessary capacity to provide expert witness services, requires more detailed planning and discussion with clinicians and their employers to establish whether (and in what form) teams are viable and able to contribute significantly to capacity within the [family justice] system.’
If, as the report stated, ‘This is likely to be a matter of financial incentives as well as persuading NHS providers that such work is consonant with the values of the NHS’, one wonders how the recent capping of fees by the LSC will play out. We have heard from a number of medical doctors in the UK Register of Expert Witnesses that the capped fee levels are so low that many NHS institutions would lose money on any clinicians who undertook LSC-funded court work! That’s no way to ease the log jam in the family court.
In one of the few places in the Review Panel report that directly references the question of cost, the recommendation is made that the LSC should collate data on expert witnesses, to include type of expert, time taken, cost, etc. It appears that this recommendation arose out of the surprising lack of data that the LSC had been able to supply in relation to the use of expert witnesses. In a similar data-collecting exercise, it was recommended that studies of expert witness reports supplied to the family court should be commissioned by the Family Justice Service.
An early example of the breed is an evaluation of psychological reports that was published in Februrary 2012 (Evaluating Expert Witness Psychological Reports: Exploring Quality by Professor Jane Ireland). Despite acknowledging that its qualitative methodology was one that precluded the possibility of knowing if its findings were representative, the (to us) surprisingly negative headline findings attracted much media attention. According to the National Centre for Applied Psychology, the Family Justice Council has asked that the report be submitted to peer review of the methodology, findings and conclusions with a view to revision and eventual publication in a professional journal should it meet the requisite standards.
On 16 May 2012 the Ministry of Justice Analytical Services team (who knew!) is holding a seminar to discuss what type of short- and long-term research on expert witnesses in the family court would be valuable. Hopefully, that forum will help to ensure future attempts at research adopt a refined methodology that produces more light than heat.