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Family Justice Council: Experts and the Family Justice System: Widening the Pool Webinar - Dr Mark Burgin

24/06/21. Dr. Mark Burgin BM BCh (oxon) MRCGP comments upon the concerns of family law experts and lawyers in finding a balance between the demand for reports of the highest standard and the supply of skilled experts.

The Family Justice Council are investigating the problems with obtaining experts of sufficient standard to work in the Family Justice System. As part of this process there was a webinar where there were presentations by industrial leading experts in medicine and law. Their presentations are summarised here together with a commentary from a generalist expert. Generalist experts are increasingly offering products such as disability analysis of capacity to parent. These products are tailored to provide the answers to the courts questions at low cost and using a robust methodology.

Working group findings

The working group had found shortages in psychologists, psychiatrists and specialists particularly in neuro and radiology. Most specialists are not keen in working in courts because they are not comfortable with the consequences of giving oral evidence in courts. This is unlikely to be changed by increased fees, better support and training if there is a serious risk of criticism. The report did not suggest the most obvious step of reducing oral evidence. Improving quality of reports so that they deal with issues before the court would materially reduce the need to question the experts in person.

The suggestions of an online resource checklist, raising awareness of existing training, interdisciplinary education and collaborative working are possible routes to a future solution. Allowing experts to work partly in the medical legal field and even commissioning specialists to do expert work are interesting ideas in theory. In practice however few specialists are temperamentally suited to expert work and there is no suggestion to make courts nicer. Some progress has already been made on reducing bureaucracy in payment by the legal aid agency which is very welcome.

Increasing the time for experts to prepare their reports and preparing the medical records so that they are easier to use has had mixed results. Pagination of records has increased the costs without providing the expert with what they want. Most experts want a transcribed record from the records from which the key pieces can be copied. What they do not want is a pdf file that has degraded the quality of the original notes to compress the file and resists optical character recognition. Too many reports still contain images of the relevant entries or hand typed summaries both of which reduce the utility of the reports and increase their length.

The idea that the experts will learn to enjoy cross examination by being exposed to more of it in training is flawed. Normal people do not like being savaged by a barrister or judge and understandably want to avoid the experience. Feedback to experts is useful to those who wish to reflect on their experience and improve but most experts do not like criticism however expressed. Judges could be clearer when criticising an expert when it is an issue that the solicitor should have picked up earlier. In an adversarial system the experts will remain fair game to difficult questions.

There are suggestions in the working group to increase the involvement of lawyers, judges, the family justice council, legal professional bodies in the training of experts. This appears misconceived for two reasons, the first is that experts already are trained by these bodies and second that it is unclear that experts have spare time to attend additional training. Whilst I agree that an Expert Witness Handbook would be an improvement on the available books it should be written by an expert not a lawyer if the aim is to attract rather than repel experts. Further committees and reports are unlikely to make progress unless they are given effective changes to support and sustain.

Clinical Psychology

There is a profusion of titles and only few are protected. This can lead to problems with for instance finding child psychologists because this title does not exist. Psychologists are used to assessing adults, children and families but each uses a different methodology. They can only look at a small part of the assessed person such as educational special needs, clinical mental health, treatability, capacity and forensic dangerousness. It is possible to obtain several psychologist reports on the same person in the same case.

These issues mean that it is essential for the boundaries between the expert reports to be defined. Social workers have significant skills in assessing the relationships and use integrated family assessments (seeing how the family behaves at home). The reports are only as good as methodology that is used and issues of standardisation and using proven techniques should be addressed by the expert. A key technique is information triangulation which is getting confirmatory information from different techniques rather than relying on one source.

Some experts suggest a one-size-fits-all report covering the parental capacity and the parent-child relationship and the child’s needs. This type of report is unrealistic firstly the cost would be prohibitive and secondly the work duplicates other reports. The parental capacity is influenced by neurodevelopmental, behavioural, emotional and attachment issues. It takes many hours to assess for each of these and a psychological diagnosis is often does not provide the answers to the court’s questions. The parent-child relationship is better assessed by a social worker although a parent may request a psychologist to determine if the problems are treatable. The child’s needs are better determined in a separate report.

It would help if different psychological ‘products’ could be developed so that there is more standardisation. The courts and the instructing solicitors would have a better idea of the answers that each report can address as well as a likely cost. The present industry contains many psychological experts with variable qualifications and variable methodology. The lack of standardisation means that many reports will not be fit for the purpose that they were instructed. This is not a criticism of the experts or their instructions but reflects the structural problems in this area.

Solicitors

There is extensive guidance available to experts in the family court such as that to psychologists, doctors and social workers (1, 2, 3). These basically repeat the Family Procedure Rules FPR 2010 part 25 and other legal principles that should be followed. There is a difference between witnesses to fact and expert witnesses but they both have an overriding duty to the court. The MOJ have attempted to clarify the commissioning of experts but the report (4) found a lack of agreement amongst judges, social workers and experts so was unable to come to any conclusions.

There are problems with each stage of the expert witness from providing clear instructions, through experts having the right expertise to producing the report promptly and the payment of adequate fees. One issue is that the experts need to explain their assumptions and set these out within the accepted range of opinion. The failure of experts to use any reasonable approach to issues subject to a range of opinion causes particular difficulties. The process of written questions (to clarify) and attending expert meetings and even court can lead to technical replies that obscure more than they reveal.

Experts who fail to answer the material questions in their report can end up in court answering the same questions. The examples of questions in court about the data relied upon, expertise, methodology used, adult v child focus, differential diagnosis should all have been in the original report. This suggests that huge savings could be achieved if all experts were to comply with their duties at the start of the case. A barrister/judge’s viewpoint might be helpful to understand the potential that better reports could make to reducing costs and potentially make better use of the legal aid budget.

Narrow specialist evidence

The example of a real case that had been anonymised is essential to understand the methodology in producing a report. The fees for this type of report are generous and at with this sort of specialists conducting less than 30 reports per year they need to be to attract the best experts. It is challenging to produce a high-quality report and most narrow specialists will need to called to give oral evidence. The supply of high-quality experts in this area is highly limited due to the relatively small number of practitioners. There is a particular concern with ensuring that new narrow specialists experts are able to provide the highest standard evidence because of the limited number of cases.

It is unclear whether the questions raised in oral evidence could be dealt with in the original report which would reduce costs and expert time. This might also broaden the pool as many narrow specialist experts indicate that court attendance is a significant reason for avoiding this type of work. Many narrow specialists are not natural public speakers and may need experiences to boost their confidence. They do not use the Istanbul protocol methodology for communicating consistency that has been highly effective in explaining scarring. Using an accepted terminology would increase understanding and interobserver consistency.

Narrow specialist evidence is only available in a minority of cases before the family court but are of high importance in those cases. It would make sense therefore to consider the problem based upon a discussion of a selection of reports. This would allow a bespoke system to be proposed to deal with the issues in the area. Experts in this area are likely to need significant support to reach the required standard when first starting because of the paucity of cases. Consideration for apprentice type support as well as mentoring from high volume medical legal experts to ensure that all experts are using the best approaches available.

Barristers

There are three problems in oral evidence, basic errors, problems with analysis and the dogmatic expert. The word indigestible was used in [2011] 1 FLR 1045 indicating that the expert had not assisted the court. One suspects that the instructions were less than adequate also in this case. The expert had also failed to review the material evidence (in this same case the relevant literature) making this case a good example of basic errors. In [2014] 1 FLR 1384 the expert had not even talked to the mother, in [2016] EWHC 2149 the expert was not independent.

Problems with analysis included [2007] 2 FLR 597 where the expert gave a range of opinion which was misleading. In [1995] 1 FLR 181 it was noted that good experts write reports that are difficult to disagree with and they should be slow to put forward a controversial hypothesis. Dogmatism was considered in [2004] 2 FLR 263 where an expert’s reputation is built on a particular argument. In [2010] 1 FLR 1560 a consideration of whether an expert has a scientific prejudice was attempted but largely overlapped with assessing independence and staying within areas of expertise.

Whilst these are useful observations, they reflect the same messages heard in other aspects of expert witness work. It would be useful to know the frequency of these problems in family courts and the likely value of each problem. One question which would assist the process is to identify the proportion of experts whose experience of working as an expert is insufficient. It is also not clear how long it takes to become good.

Paediatrics

Paediatrics is highly integrated with the family courts so most consultants are forced into the work whether they like it or not. This conscription is described as causing sleeplessness, knotted stomach, self doubt and a desire to agree to anything. There appears to be a blurring between medical witness and medical expert in this field which is highly concerning. This may be due a lack of training in the paediatric field to understand the difference and lack of support to paediatric specialists to ensure that boundaries are not crossed. There is no excuse for a lawyer asking a novice paediatric specialist about whether injuries are non accidental.

The same story of inexperienced professionals being drafted to the front line and interrogated as experts when they are only equipped to be professional witness is heard from social workers. This abuse of process appear to occur in the full knowledge of the lawyers involved in these cases. Clearly these abhorrent behaviours are hiding behind the veil cast on family procedures. This gives further force to the pressure to open family courts in the same way as criminal and civil courts.

The lack of feedback ensures that those professionals whose evidence was not given proper weight due to their inexperience do not learn. They never see the whole picture or understand their place and can become frustrated with what can appear to be an unfair process. Even more confident experts can find that they cannot put over their opinions clearly because of poor letters of instruction. This can lead to the expert taking on a case which is outside of their expertise or timescales that they cannot achieve.

Other experts

There were no disability analysts or child experts presenting at the webinar nor did they appear to make up any of the audience. It is clear that there is a demand for experts to deal with the child’s functional restrictions. Although GPs would have expertise in both the psychological and physical disabilities in children they would not be expected to have the relevant educational expertise. The value of having an expert diagnosis of the child’s educational problems from neurodevelopmental causes is uncertain. GPs have experience in assessing neurodevelopmental causes so might be able to explain why for instance a child has mixed performance from a medical point of view.

The assessment of disability and its effects on parenting is well within the expertise of a disability analyst. It could be argued that disability reports are the perfect solution as they are cheap, cover all the issues in one report and provide clear answers to the court’s questions. As the supply of disability analysts is similar to other generalist experts there is unlikely to be any problems with finding high quality experts. Disability analysts could provide the vast majority of parenting capacity assessments so psychologists could focus on specific issues which they are well trained for. This would ensure that increased funds are available for psychological experts and rebalance the demand and supply.

Conclusions

The adoption of innovation is arguably slower in law than any other professional area perhaps because the law has to deliver certainty. It is right that unforeseen effects are not allowed to distort the legal process such as increasing access to personal injury claims with the low cost PI medical report. It seems unlikely that better access to capacity to parent reports will lead to increasing numbers of cases entering the family court system. The opposite is likely, more cases settled at an earlier stage, less need for expert conferences and expert attendance in courts.

Solicitors are desperate for a good quality product to assess children’s functional restrictions. The current CAFCASS report is outdates and no longer fit for purpose. It is possible to train up, for instance, health visitors to become child expert witnesses. A better approach would be to bring together a panel of experts to determine what this product would contain. I recommend that the panel is led by a lawyer with experience of the sorts of questions that the court needs answers. This would ensure that there is a tension in the panel between what the court would like the report to do and what the experts can deliver.

A risk of having less experts working in a case means that each expert must write a longer report to ensure that all details are covered. It could be argued that if a separate expert were permitted for each parent’s disability, the parent child relationship and the child’s disability then each could be brief and more useful. Each report would be focused on a small area and there would be less need for experts to be able to deal with multiple issues. Experts would be able to specialise for instance as child psychologists to provide these reports.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

1. Guidance from the Family Justice Council and the British Psychological Society (January 2016) Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations

2. GMC (2013) Acting as a witness in legal proceedings

3. Nagalro Council (December 2019) Nagalro principles and practice guidance for all full members

4. Ministry of Justice Analytical Series 2015 The use of experts in family law Understanding the processes for commissioning experts and the contribution they make to the family court.

5. Experts and the Family Justice System: Widening the Pool, held on 25th March 2021 seminar on the FJC website - https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/fjc/conference-debates/seminars/

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