Family Court Expert Witnesses - did anyone see Newsnight last night? Or Denise Robertson and Joanna Nicolas on This Morning last week?

[NoseWiperExtraordinaire]

Here: Newsnight (see from 19:15 onwards, after the also very interesting debate on MPs’ pay rise)

And here: This Morning

I realise there are 3 linked threads running around the Italian forced caesarean/adoption case, but I feel the issue of family court experts deserve a thread of their own.

I’d be grateful if comments on this thread are limited to discussion of the issues, rather than become an attempt to credit or discredit those with differing or extreme opinions, but by all means debate away. Whilst I am still a tad about JH, I do welcome any evidence based RELEVANT contributions from ANYONE which might not be particularly popular, mainstream or comfortable reading, as long as they are factual and don’t contain highly emotive terminology. (Although any users of the words “snatch” and “conspiracy” will get a complementary biscuit .)

I find it interesting that the matter of expert witnesses is rearing its head again, it seems they are getting a(nother) pay cut and some are not happy. Are there any ideas here around how to resolve the issues? I had a few ponderings.

Limiting the hours spent on a case (as suggested) seems ridiculous but how about linking professional registration with the amount of time an expert witness has to spend a year contributing to family court cases (so a bit like dentists having a moral obligation to the NHS). To maintain their status/qualifications, they must spend so many hours in court per year (to completion of a case, of course).

How realistic is that? Would it stop those who make a living purely out of being witnesses, which in large seems to be the issue? Perhaps they should only ever be allowed to participate outside their locality area, to avoid any conflict of interests?

Or, if cases are sometimes so rare that even with anonymity children are likely to be identifiable by the circumstances (as can be the case and is the concern for case details to be released to the press) perhaps family courts should be open to a behind-a-mirror “jury” of professionals where expert witnesses on the circuit in one area could also serve as a kind of professional “jury” in another area, scrutinising the work of other “experts”.

These may be daft ideas, but the aim is to get the ball rolling. Can’t help but feel it’s time for positive solutions rather than all the doom and gloom and mud-slinging.

How can we influence decision makers that we want more spent on child protection and services to support vulnerable children and their families? Who can we “plebs” campaign to (and with) for change?

bump

Sorry I missed it, I wish I had seen it.

Fwiw, the government wishes to drastically reduce the use of experts in care proceedings, and I agree with them.

Too many of my care cases when I was starting out involved automatic instruction od both a psychologist AND a psychiatrist who told you cery little that you couldn't work out for yourself I.e. Someone who has grown up in a highly dysfunctional family is likely to exhibit their own dysfunction in later life.

But medical experts in cases of injury are vital - I can't be expected to understand about fractures or haemorrhages, I need help with that.

Most experts I have met have been professional and sensible.

I think the answer is maybe more about releasing info about decisions via anonymised judgments so people can see it is jot as bad as some people allege.

O and by the way I would never agree to the instruction of an expert who didn't have relevant and recent experience in the area we are interested in. Most instructions are joint, so everyone has to agree on identity of expert. CVs are submitted and discussed.

Thanks Spero. I was hoping you might spot this and didn't want to hijack the other thread (btw the first link is to iplayer of the newsnight item, worth a watch when you have time).

Re: automatic instruction of independent psychs, surely the court needs to be informed by a professional whether someone's issues are behavioural or illness related and what the treatment options are, if any and likelihood of compliance? Whilst I am sure some barristers are very well informed on mental health matters, we can't assume all family court barristers are, can we?

The Newsnight item refers to a case where 2 social workers applied to the courts to remove a baby at birth without any expert reports, and was thrown out. The Judge ordered the woman be placed in an assessment centre (a form of expert witness) where the woman thrived.

That is a scary near miss, you have to agree. (And I am not scaremongering, I believe any concerned mothers should seek help and take courage that the system is being looked at closely, as it needs to be.)

Re: anonymised reports of court decisions - this already happens though doesn't it? Is it enough?

What are your thoughts around changes to the appeals process? If for example expert witnesses provide further complexity (such as if they don't agree with treating professionals) and the clock is ticking?

Thanks for link, will watch tonight.

The issue as I see it, is that the vast majority of my clients have themselves had very abusive and or neglected upbringings. They do not function well as parents.

Their problems stem from a complicated mix of genetic and environmental factors. Many of them could probably improve with a big investment of time and therapy - but a child can't wait years for a parent to sort him or herself out and who is going to pay for it?

My frustration in the fist ten years of my practice was I would continually get reports that said ' x has long standing problems with drink/drugs/whatever. X may be able to make and sustain changes after a year of therapy.'

So it didn't take us any further forward as no one was willing to fund this work or take at risk that after a year the parent really would be ok.

I think we urgently need experts to assess someone's capacity and to comment on physical injuries or psychiatric issues. But the more general and common multi issue dysfunction cases ... I can't see what additional matters a psychologist can bring to the case.

Re judgments - they exist but are not widely publicised. I think they should be released as a matter of course on a website easily accessible to the general public.

I don't know enough about the removal of a baby case to comment other than to say in my experience, there has to be very clear evidence that the baby is at risk of immediate harm to justify removal directly after birth. I have challenged a number of such decisions and occasionally win.

I am an expert witness in the family courts.

I absolutely welcome the change to an expert having to be necessary, I have no desire to do unnecessary work. I cannot see why anyone would.

The issues of limiting hours, and cutting the hourly rate (I have been cut by 50% in the past three years) are however real problems.

Firstly, how a non-clinician can tell me how many hours I am going to need to assess someone is incomprehensible.And how you can have a standard amount of hours? Some cases are fairly straightforward, I get all the information I need, the person being assessed is co-operative with the assessment and there are a few files to read. So that might take me six or eight hours. In other cases there may be several boxes of files to be read (and often CDs with thousands of pages of medical records too), the case may be massively complex, the person being assessed may be completely unco-operative, and I may have to spend hours chasing around for information which has not been provided to me. That case could take dozens of hours.

The hourly rate has been seen by some as some kind of princely sum. It is not what I pocket. I have to pay for many things out of this rate including hiring an office, admin costs, secretarial costs, IT, accounting, very expensive malpractice insurance and of course the biggest one: tax.

Good post.

But sorry op, doesn't look like there is any appetite for reasoned debate in this field.

No there has been no appetite for any debate around this, you are quite right. The so-called MoJ consultation process on the cuts to experts fees was a complete charade, and very few people even know about this outside the specialised field. And pieces like that on Newsnight, which was partially inaccurate as well as edited in such a way as to be completely in opposition to experts, do not help! I can't think of any other field or profession where fees/rates have been cut in half.

Yes, it does seem a slow burner! And I was here all ready with my biscuits an everything

It's odd, since there is such uproar over decisions which make the headlines, you’d think more people would be interested in how to make sure the quality of evidence supplied to the courts is the best it can be.

And yes, Dudesmummy, I can’t get my head around setting a limit, a guideline perhaps with required explanation for anything over a certain limit, but actual restriction should be a concern for everyone. Is this a money saving exercise, or a getting it right exercise?

As far as costs are concerned, I’ve no idea how the rates compare to normal practice hourly charges, or those involved with assessments for say, providing statements of need for education purposes etc, is it comparable at all? I was going to ask whether medical experts are subject to the same restrictions and is it limited to the family courts, but your last post seems to answer that.

It seems to me to be all about cost, rather than addressing scrutiny of what goes on. Whilst I welcome in some respects more publication of cases online, I’m not sure that is enough.

Appeals process anyone?

In answer to your questions:

The cuts are not limited to the family courts but are applicable to all courts.

You can theoretically get around the time limit situation, by insisting on application for prior authority, but that is time-consuming and not all solicitors are willing to do it. And you do not always know in advance whether a case is going to take longer than average. So: if a case seems to be expanding: do you just stop in the middle of your work when the judge has ordered a report to be available by a certain dated, and a family is desperately waiting for their hearing? Or do you complete the work, knowing that you are probably not going to get paid for a portion of it?

The rates: well if I was in private practice in my field and at my level I would be able to charge (even at approved medical insurance rates) 220% of these rates per hour.

Appeal: The Consortium of Expert Witnesses to the Family Courts (of which I am a member) have looked into JR but legal advice has been that we would not win.

I am off to watch the link! I may be back with some steering and insightful comment, but I suspect the dudesmummy has got that covered.

Sorry Dudesmummy, JR?

Judicial review - the process by which you can challenge the decisions of public bodies, such as government departments or. Local authorities, on the basis that they have acted unlawfully by making decisions or refusing to make decisions on grounds that were irrational or unreasonable.

Ah yes of course, thanks Spero. I see Dudesmummy was referring to The Consortium appealing the new rules (shocking actually, that advised not to appeal).

I was referring to the process for individuals who might want to appeal the assessment process in court (such as not being fully, properly or erroneously assessed due to the new limts etc). Have there been or are there likely to be any improvements in the timescales of such appeals?

In my cases, if I think an expert has got it wrong, it is not so much a question of appeal but of challenging them in court. You cross examine the expert to reveal the weakness or inadequacy of their report.

Most reports are sound but occasionally you do find ones that are dodgy and make unwarranted assumptions. Judges will take note of this. They do not blindly follow experts; they assess ALL the evidence.

One would hope so spero!

Quite - Spero, do you think the chances of another Roy Meadow cropping up are vastly diminished these days? I'm thinking of the infamous 'one cot death is unfortunate, two is suspicious, three is murder' (paraphrasing, can't remember the exact quote) line that was crucial in the case of Sally Clarke (RIP)? Because in that case the judge completely missed the point that Meadows was not a statistician and was way outside his own field of competence. Do you think things have changed now?

• Obv. RM comments re. Sally Clarke were in a criminal court, not the family courts. And Roy Meadows was not the only professional who was incompetent in the Sally Clarke case, the pathologist was a disgrace as well - think eventually struck off.

I interviewed David Southall several times, well before everything that led to him being struck off and then reinstated. He was clearly dedicated to children. It was tragic that his vehement determination to protect children seemed to have led him down the wrong path.

I do hope so. The Roy meadows scandal was sobering - I can only assume that everyone fell into the trap of thinking they couldn't possibly challenge him because he was 'the expert' and no one in the court room knew enough (or anything) to give counter argument. The Royal College of Statisticians pointed out they could have set everyone straight in five mins if they had ever been contacted - but no one thought to.

The key is Donald Rumsfeld's 'there are things that you don't know you don't know' - this is the most dangerous issue for any professional. If you don't realise that you are ignorant, you can end up making a massive pig's ear out of everything.

Usually when I want an expert it's because I know I don't know enough about a topic - but I have to trust the expert to then steer me straight because I am unlikely to be able to challenge him/her from my own knowledge.

I guess all we can do is try to learn from these horrible situations. I don't think we can ever eliminate them entirely as human fallibility is too wide and varied for us to ever cover every eventuality.

But I think there is greater awareness now that you should challenge any expert who appears to be stepping outside his or her claimed area of expertise.

That's reassuring Spero. Agree impossible to eradicate all possibility of error, humans being fallible hence lawyers and courts and health and social services professionals and experts fallible and so on.

Donkeys' years ago I used to work for an expert witness (in a completely different field) and he was always extremely clear and careful about what was and what wasn't within his field of expertise and would say so in his reports in some detail.

That's partly why I found Roy Meadows so shocking, the idea that a court would just assume he knew what he was talking about without any challenge when he strayed from one field into another. I had assumed judges were quite bright and able to pull apart an argument (in a neutral way) and look at the underpinnings and logic.

It is good to hear that the Meadows scandal (and others - the pathologists in the Sally Clarke and Ian Tomlinson cases, for instance) has made courts and lawyers far more careful about expert witnesses.

I think it was probably because USUALLY experts are so sensible and well respected and careful in their conclusions that people were more inclined to treat Roy Meadows with respect.

It was a very good lesson that no one should be taken simply on face value. We need to treat all evidence with care and not be lulled into feeling secure because this person has a good reputation or usually writes good reports.

And the other problem is he was pontificating about statistics, which I certainly don't understand so I couldn't have challenged him. Interesting to note that there must have been a lot of intelligent and well educated people in that court room and none of them felt able to challenge him.

I must admit, as a lay person, if all three of your babies died at a young age I would probably be saying - but this is statistically highly unlikely! because that is the conclusion that 'feels' right. And if an expert was agreeing with me, I wouldn't challenge him.

so certainly not saying what happened was in any way acceptable, but I can see how horribly easily it happened.

The difficulty is that if you take a large number of cases then the statistically unlikely case will crop up in the middle of those cases.

Hence you really need to be careful unless you would prefer to lock up the innocent then to allow the guilty to go unpunished.

Can the family courts dictate what experts get paid? In other fields, the difficulty is ultimately if some clients are prepared to pay the expert more than the approved rate, that will generally mean that they can get the "best" experts - after all, why would a highly rated expert take low paid work when people are clamouring to pay him higher rates? Ultimately that will mean, particularly for people who are dependent on legal aid, that unless they are extremely lucky they will only be able to access experts who are prepared to work at the lower rates either through inexperience or because they have a poor reputation. Yet another consequence of the coalition's ruthless attitude to the most vulnerable sectors of the population.

The Legal Aid Authority dictates what experts get paid in legally aided cases, as it is they who pay. (It is not the case that the experts working at the LAA rates are necessarily poor quality or inexperienced though, although I am aware that a lot of experienced senior experts have given up legal aid work because of the new rates. I am forced to work for the new rates as I have no choice, it's that or my family goes under. So I just have to work twice as hard/twice as many hours as I used to! I am a senior doctor and have over twenty years' experience in the courts. I don't have a poor reputation!).

Sorry, I really didn't intend to suggest that any expert who does currently work at legal aid rates is poor quality! My concern is that, as you say, Dudesmummy, people have to make a living. If you have a choice between taking on work that is properly paid and work that is paid at inadequate legal aid rates, it is perfectly reasonable to take on the properly paid work. I am concerned that as time goes on the stupid rates paid will drive out the good experts.