Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the September 2018 issue,  Fam Law 1226.
On 15 September 2018 The Transparency Project is due to officially launch its new Guidance Note on the use of experts in children’s proceedings during the CPConf2018 at the Conway Hall in London. Our previous four guidance notes have examined: the issues of parents recording social workers; using s 20 agreements (awaiting update in light of the Supreme Court decision in Williams and another v London Borough of Hackney  UKSC 37,  FLR (forthcoming)); media reporting on family cases; and publication of family court judgments. All our guidance notes are available to download for free from The Transparency Project website, thanks to funding from the Legal Education Foundation. Forthcoming notes will tackle domestic abuse in family courts and common law marriage.
The aim of the Experts Guidance Note is to explain the general principles about when and why expert evidence is necessary, how the court will use it, what to be wary of, and when such evidence could or should be challenged. All our guidance notes are aimed at a mixed lay and professional audience, and at clarifying particular areas of confusion or contention for families and non-legal professionals. Distrust and confusion around the use of expert evidence appears to be a particular example of what McFarlane LJ (as he then was) identified in the inaugural Bridget Lindley Memorial Lecture as a general and worrying spread of distrust and disengagement between parents and professionals in some family proceedings.
The Guidance Note sets out the basic principles of the court’s use of experts – that the expert is independent and owes a duty to the court, not to any party instructing him or her. The family courts must approach expert evidence with respect, but also with caution and never lose sight of the fundamental principle that the roles of judge and expert are different. It is only the judge who makes the final decision about the facts of what has happened, and these decisions must be made after consideration of all relevant evidence – factual or opinion; ‘The expert advises, the court decides’.
We set out at the beginning some common things that people often worry about and then go on to consider the more technical details about how experts are instructed and how they go about preparing their report for the court. We have given particular attention to issues around physical injuries to children, in light of the controversy that arose around ‘shaken baby syndrome’. Those cases involving injury to children have provided a fertile ground for debate about the role of experts and the courts have frequently reminded us that continuing development in medical understanding and research may render certainties in one case much less certain in another. We consider for example the case of Effie Stilwell, a baby girl who collapsed and was taken to hospital with a serious brain injury (Buckinghamshire County Council v Andrews & Ors  EWFC B19). After considering the medical evidence presented by a consultant geneticist, the court concluded that Effie’s collapse was ‘most likely the consequence of a naturally evolving disease’. The local authority applied for permission to withdraw their application for a care order and Effie went home. We also consider in some detail the reliability and limitations of testing for drug/alcohol use and how such reports should be presented to make them intelligible and useful to the lay parties.
We have attempted to shed some light on the difficulties around paying for experts if one or more of the parties isn’t legally aided and cannot afford to pay, but we won’t pretend to have found definitive answers to these ongoing problems for the family justice system.
We hope that we have posed some of the most frequently asked questions and answered them in a way that will provide clarity and reassurance. For examples, parents are often worried that a requirement for a psychological assessment means they are being labelled as ‘mad’ or unfit parents from the outset. We have attempted to explain the difference between psychiatrists and psychologists and why the court sometimes needs their help. We also consider those scenarios where the expert may be properly challenged – for example, by considering case law where experts have formed opinion based on unverified facts, or have failed to report accurately or fairly from contemporaneous notes.
We consider in some detail the procedural requirements for expert instruction pursuant to s 13 of the Children and Families Act 2014 and now part of the Family Procedure Rules at Part 25 and accompanying Practice Directions. The procedural framework is very thorough and probably a challenge for any lay party (and many lawyers!). We hope that increased familiarity with these requirements may go some way to reducing anxiety and enabling litigants in person to better understand and engage with the legal process, around how and when experts are instructed, and who has input into this process.
The wider discussion at CPConf2018 will be about the issue of ‘risk of future emotional harm’ and whether this is a justifiable reason for removing children from their parents care. In such cases where the court must consider a future risk, it is likely that expert evidence is going to play a key role in any such risk assessment and we therefore hope that this Guidance Note will be a valuable and helpful addition to the discussions we will have on that day.
Sarah Phillimore is a member of the Transparency Project and organiser of the CPConf2018. Details can be found on The Transparency Project website.