The use of expert witnesses in family proceedings has raised controversy over many years. Concerns have been various: experts using the courts to promote views not shared by peers (copper deficiency in broken bones cases comes to mind); relying upon controversial statistics to support a particular case (Professor Meadow and Munchausen Syndrome by Proxy is one example); or the routine use of expert psychiatrists and psychologists to augment evidence before the court in a manner that sometimes subverts the other evidence before the court. Experts can be expensive and their instruction has been identified as one of the primary causes of delay within the system.
It seems to me however that independent experts are critical in family cases. Their use is often the only mechanism available to parents and those representing children to challenge allegations put by a local authority in care proceedings or in private law proceedings to try and break a log jam in disputes between intractable parents. It is easy to look at the negative and sensational and forget the way in which experts are a critical element of any justice system
The use of experts comes with a health warning however and the timely report by the University of Central Lancashire highlights this in the area of psychological reports. Psychological reports are important in cases involving children where issues of cognitive ability, parenting capacity or risk evaluation are relevant. It is critical that the correct expert is chosen to undertake the assessment. It is not a case of one size fits all.
Thus a clinical psychologist used to working with children in the area of special needs is unlikely to be able to produce a risk assessment for a sex offender, nor can a forensic psychiatrist working with offenders produce a parenting assessment.
Thus, in every case the parties should ask the following questions:
- What are the issues in the case?
- Is a psychologist the right person to undertake an assessment (in cases of mental health issues a psychiatrist is more relevant)?
- What type of psychologist is needed?
- Does an identified psychologist have the relevant qualifications and experience?
- Can they prepare a report within a reasonable timeframe for the child?
- Is the cost of the assessment reasonable and proportionate?
The instruction of experts should be closely controlled by the court which should, in my view, have oversight of the qualifications of the person and the detailed letter of instruction sent to them. What the Central Lancashire research highlights is the variable quality of reports (two-thirds rated by a panel of experts as being below expected standard); the lack of appropriate qualifications in 20% of cases; and the general lack of clinical practice in over 90% of cases. Their recommendations included registration to practice with the Health Professionals Council and full membership of the British Psychological Society, greater judicial involvement, clearer instruction and restricting the use of ‘professional experts’ – i.e., those who are not engaged in clinical practice.
I was surprised at some of the practices exposed – for example, the use of a commissioning witness company in one court that took a payment for referral and the use of associates to undertake large elements of the reports. If the valuable role played by experts is to be maintained and nurtured there is a need for vigilance on the part of all people within the family justice system to maintain its integrity.
Experts are essential, they help to redress the balance for those without power, their use is under attack from the government (see recent guidance from the Legal Services Commission on fees) so let us all ensure that their use is appropriate and proportionate.
Ian is a solicitor advocate with 30 years' experience of the law relating to children and childcare proceedings. He was founder and first chair of the Association of Lawyers for Children. Ian is a part time judge on the Care Standards and Special Education and Disability tribunals.