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Mis-practice direction – how not to write a letter of instruction

It has been plain to me for a number of years that alongside the official Practice Direction on Instructing Experts http://www.familylaw.co.uk/system/uploads/attachments/0001/8873/FPR_PD25A.pdf

there must also be a secret set of rules to follow when constructing a letter of instruction that goes to at least half of the parties, in order to produce the monstrosities that we end up with,  but which is not otherwise available.

[Just like the secret special snooker words to Lady in Red…  “a cut as thin as a thong”]

After exhaustive digging and research, and aided by Indiana Jones, Batman the world’s greatest detective,  the Famous Five, Nicholas Cage’s character in that National Treasure film, and Chunk out of the Goonies, I have found it, and here it is.  Unselfishly, I am prepared to share it, so that we all understand how those masterful LOIs really come into being.

Now we all know…

Constructing a Letter of Instruction in Family Proceedings –

a Mis-Practice Direction

1. Make it long. If you’ve asked less than twelve questions, you are doing it wrong. If less than fifteen, you’re still a bit of a lightweight, frankly. Heck, I could do seven questions in a Letter of Instruction just asking for a DNA test, what’s wrong with you? Are you even trying?

2. Ensure that you have at least two nested questions, ideally with six or seven sub-clauses in each. Then you can confidently say that ‘well, we only added two questions’ and get fourteen different things asked

3. If there is a bush, make sure to beat around it.

4. On no account ask a straight question. If you ask a straight question (like, for example “can the parent provide this child with good enough care, now or in the next six months?” ) the expert might give a straight answer, and then where would we all be? Think of the poor mug who has to cross-examine the expert if there’s a straight question and a straight answer. The purpose of the Letter of Instruction is to obfuscate, not illuminate, and to ensure that you get a report which has something for everyone, rather than one clear conclusion.  Your role model here should be Sir Humphrey Appleby.

5. Don’t be afraid to ask the same question again, by subtly changing the words and having it two or three questions further down. If the expert answers them both the same, then you shrug and say “oh well”, but if there are two different items, well, then you have inconsistency, and have topics for cross-examination.

6. If you do encounter a bush, it is essential that you beat around it.

7. Make sure you put at least one question in that is outside the expert’s area. For example, when dealing with a psychiatrist ask them about the mother’s parenting ability or the quality of contact. If an independent social worker, ask them about post traumatic stress disorder. If they give you an answer you like, hooray – if they don’t, you can cross-examine about how they’ve strayed outside their expertise.     [A particular favourite was a draft LOI to a psychologist which contained only questions for a psychiatrist and none on topic. I actually did see this draft]

8. Ensure that the cost section is written at such length and in such impenetrable detail that even a forensic accountant married to a director of the LSC would only have a vague grasp on what is intended. On no account tell the expert the truth, that you don’t know how much they will get paid, or when, and that no amount of chasing or complaining will make the LSC stump up any cash. The cash will simply fall from a branch on the LSC money tree when it is ripe and ready to fall, and not before. You cannot shake that tree.

9. Always try to fundamentally misunderstand attachment theory – a particularly good way is to ask whether the child’s primary attachment is to an adult they don’t live with and haven’t done for over a year, or whether the parent is attached to the child.  In fact, just assume that attachment is in any way relevant to the decision the Court has to take, and you’re half way there.

10. If you have a question for the expert which is really just a rambling theory that you might potentially stick in submissions, but you can put a question mark on the end of it, put it in anyway.  Anything with a ? at the end of it must be a question, by definition. We don’t put ? at the end of long rambling assertions, do we?

11. Feel free to set out in mindbendingly tedious detail, everything that the expert is inevitably going to cover in their assessment, but spell it out for them as if they had never done an assessment before. This couples ideally with the requirement for a nested question.

12. Feel free to ignore the standard of proof that we work towards, and pepper the questions with “is it possible?” “can it be excluded that” or “can we be certain that?” .    In particular, don’t worry that something like Ehler Danloss syndrome affects only one in a hundred thousand people, if it potentially explains the injuries, then the child is bound to have it, and you must insist on the expert testing for it or ruling it out as a possibility. No matter how expensive, time-consuming or intrusive the testing, it has to be done, so that the remote possibility can be excluded.

13. Always end with “and any other matters you consider relevant and important”  because the expert would never, ever, ever tell you something earth-shatteringly important if it didn’t absolutely fall within your already sprawling list of questions.

[If anyone can lay their hands on the fake practice direction, I’m sure written by a judge, which sets out the unwritten laws that people must be following in order to produce  the court bundles that he was seeing – with stuff like “ensure that any individual document is stapled to another document unrelated to it, with a staple that will pierce the fingers of anyone who tries to remove it” , I’d be very grateful and I’ll stick a link to it here, as that was what inspired this]

Thank you to Chunk for his detective work. [Yes, that is just a gratuitous attempt to crowbar in a Goonies picture. You guys! Hey, you guys!]

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Finally – resolution on prior authority!!!! (sort of, but not really)

Our beloved President (and honestly, no sarcasm here, I am delighted!) has finally tackled the Prior Authority issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

In DS & Ors (Children) 2012.     (Am a little sad that I didn’t get to be the one who got to run the case, having expended quite some time on the issue, but delighted that it is finally gripped)

Interestingly, the President takes a different view to me on whether the LSC have law on their side here.

Para 38 For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

If I recall correctly, both Calderdale and Lambeth (the cases I think mean that the Court takes precedence over the LSC internal policies) are both High Court, so the President is not bound by them, and distinguishes them in any event by saying that the Statutory Instrument which sets out how the LSC have capped expert fees is binding.  (In my humble opinion, it would be binding, had the draftsmen remembered to put something into the SI that said that it was binding on the Courts, but such is life).  A closer inspection of this authority shows that Justice Wall specifically refers to Calderdale on the issue of splitting costs, so I am certain that the argument that the Court pushes the LSC around, not vice versa, is, I’m afraid over. And we lost.

The law, as it stands then, is that the LSC DO have the power to bind the Court, and Mr Justice Wall suggests that the remedy is a judicial review if the LSC are acting in a Wednesbury unreasonable way. Presumably, the LA as a body with locus standi, could launch that JR if the LSC decision was delaying a case, because heaven knows the last thing a publicly-funded solicitor who depends on the LSC to process claims and write cheques wants to do is hack off the paymaster.

Here is some very helpful concrete guidance – as much of it places onerous tasks on the Judge/Magistrates if granting approval for an expert, expect to have a harder task over the next few weeks in getting an expert past the Court.

Guidance

    1. In all the circumstances of this case, therefore, I feel able to offer the following general guidance:-

 

i) The words “the cost thereof is deemed to be a necessary and proper disbursement on [a named individual’s] public funding certificate” (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind the LSC or, for that matter anybody else. In addition, there must be doubt about the court’s power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.

ii) The test for expert evidence will shortly import the word “necessary”. The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word “necessary” for “reasonably required” and there will be a new Practice Direction.

iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say – if it is the case and the hard pressed Tribunal with a long list has had the time – that it has read all the (relevant) papers.

iv) If the court takes the view that an expert’s report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.

v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.

vi) “Reasons” in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order

vii) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.

viii) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert’s contract is with the solicitor, and if he or she does not recover the expert’s costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.

ix) Similar considerations to those set out above apply to any challenge to the LSC’s ruling.

x) If a case is urgent, it should be so marked and the reasons for its urgency explained.

xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and “user friendly”. Practitioners should look out, in due course, for the amendments.

And then a suggested form of wording for orders (you will note that this is a LOT longer at present, and the President stresses that all of this should be prefaced by a short judgment as to why the expert is required, and at the minimum a clear preamble that sets out why the judicial decision has been made)

Coda

    1. A suggested form of order, depending on the facts of the individual case, could be in the following terms: –

 

a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.

b) This case is exceptional on its facts.

c) The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.

d) The court considers X’s hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.

e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.

f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren’s) timescale(s).

  1. Even such an order (which will need, of course, to be adapted to the facts of the individual case) should be buttressed by reasons as set out in the guidance which I have attempted to give.

There’s a very interesting addendum to the judgment, where the LSC submitted some data to the Court. Here are the figures on applications for prior authorities :-

Nov 2011  – 216

Dec 2011 – 492

Jan 2012 – 784

Feb 2012 – 1140

Mar 2012 – 1840

Apr 2012 1855

I wonder why the numbers spiked so – might it be because the LSC started rejecting claims left right and centre, leaving solicitors holding the baby and being out of pocket and thus deciding never to get burned like that again?

Laughably, they also claim to be processing prior authority applications in between 3 and 8 days.  (Perhaps, if their definition of a Day is the time it takes Jupiter to orbit the sun)

So, where are we?  I suspect, still waiting for the judicial review.  The white flag has been waved by the Courts as to whether they or the LSC are in charge of assessments, so what Justice Wall has done here is set out a clear framework in advance for prior authority applications to be accompanied  by chapter and verse on why the Court has decided that the assessment is necessary and the costs appropriate. That paves the way, should the LSC act capriciously (as if they ever would, quell my scepticism) for a judicial review.

If you’re an Independent Social Worker, this case is really, really bad news, I’m afraid. The Courts are not going to do battle with the LSC in any care case as to the ludicrous £30 per hour cap that was pulled out of thin air. It will have to be a judicial review based on the policy being unreasonable and having been done without an Impact assessment.  (And I think the clock has chimed on the time-limit for such an application – unless the applicant (Nagalro, or BASW presumably) argues that it was unclear until this decision that the intention was to bind the courts, or that social workers doing risk assessments would not get the £63 per hour that the SI suggests)

In the Jingle, Djangoly morning, I come following you…

 

The Parliamentary Justice Committee met recently, and if you’re a fan of conspiracy and outrage the debate makes for entertaining reading  (y’know, if you’ve been reading the Daily Mail for so long that you are starting to find it utterly reasonable, and you want something to provoke a reaction of “these people are just plain wrong”, then Parliament is a good place to go for that fix)

 

This is the bit that is relevant to us, where Mr Djangoly MP lets us glimpse what the Government fix on family law experts is going to be – my underlining. (I’m afraid I left in his first remark, which is his attempt to get John Hemmings MP to stop talking when grown-ups are talking, because it made me laugh)

 

Mr Djanogly: Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

 

An interesting idea. Perhaps putting some stringent guidelines about when assessments are needed into a revised Family Procedure Rules will work. After all, when we’ve tried that in the past, it has always worked. For example, it might work  as well as :-

 

The Protocol, which said, don’t use experts unless they are necessary

The PLO, which said, don’t use experts if you can get the social worker or Guardian to answer the questions

The current FPR, which gives a huge set of tasks to be followed if anyone seeks to persuade the Court to instruct an expert

The House of Lords decision in Kent County Council v G which sets out very firmly that s38(6) is about assessment of the child, assessment of the current situation and is not for the purposes of affecting CHANGE in a parent

 

All of which are currently ignored by professionals on a regular basis. Changing the requirement to ‘necessary’ rather than reasonably required, will just change the words that advocates use when asking for the report.

 

The idea which really would stop the instruction of experts altogther is the one mooted in the Family Justice Review – make the Judge write the Letter of Instruction. Introduce that, and you’ll see the number of experts instructed in care proceedings fall by about 90%.   And if you want to stop them altogether, make the payment come out of the Court budget….

“ISW this a dagger I see before me?”

 

 

(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)

 

 

 

The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.

 

The report can be found here: –

 

http://www.ciswa-uk.org/wp-content/uploads/2012/04/PDF-FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-18-Apr-2012.pdf

 

The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.

 

One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation.  (Perhaps we have a third report in the wings on psychiatrists)

 

One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.

 

But heck, what’s wrong with Red Queen justice – sentence first, verdict later!

 

 

 

Pink Tape has done a very good article on this report, written by Noel Arnold  (getting in first, whilst I have been busy puppy-wrangling)  :-

 

 

http://pinktape.co.uk/family-justice-review/use-of-independent-social-workers-in-care-proceedings/

 

 

 

I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right.  Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.

 

So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.

 

(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)

 

 

 

 

So, what are the headlines?

 

 

Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.

 

It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.

 

In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.

 

There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.

 

Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.

 

Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.

 

Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:

 

Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).

 

 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.

 

 

 

 

Those all seem, at first blush, to be pretty positive conclusions  (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR  (ISWs are just telling us stuff we already know and should be frozen out) and the LSC  (ISWs aren’t as good as psychologists and should be starved out)

 

I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.

 

They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!

 

They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings.  And those assessments already cost more, and take longer.  (I shall remain silent, if not neutral, on whether they are better or worse in quality).   That situation will not improve as the demand for them goes up.

 

If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.

 

If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker  (or an old-school Guardian, but that’s an entirely different debate).

 

If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)

 

I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.

 

I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour.  I am struggling to see the savings here.  I will have a report which is twice as expensive, takes months longer, and is less on point.

 

What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars.  We will all just smoke the free cigars, I’m afraid.

 

who assesses the assessors?

Always nice to get a little Alan Moore / Juvenal nod into the title if you can.

The Family Justice Council report on the quality of expert psychologists used in care proceedings (as trailed on Channel 4 news) is up .

You can find it at http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf

They looked at 126 reports from 3 courts, and used four independent assessors to judge the quality of the reports, both against the guidance of the CPR and a piece of American caselaw (which I have to confess was unfamiliar with me until today) giving guidance on the construction of expert reports and their own views as to the quality of the report. They found, as you may have heard, that :-

 One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.  Only around one tenth of instructed experts maintained clinical practice external to the provision of expert  witness  work.   Two thirds  of  the  reports reviewed were rated as “poor” or  “very poor”, with one third between good and excellent.

Without wishing to be unkind, my preliminary view is that they’d obviously got  a particularly strong batch. I have found most psychological reports to be a blend of regurgitation of information already found elsewhere, a statement of the bleeding obvious, recommendations plucked from thin air and if you’re particularly lucky a hefty dose of God Complex thrown into the mix.   [I would add, however, that if you get a really good psychological report, it sings, and makes the gulf in quality even more visible. I’ve got a few psychologists, who are always snowed under and have huge timescales, but always, without fail produce a report that adds something worthwhile to the process. Sadly, their numbers are dwarfed by the people who tell you very little, and take 160 pages to do it]

Here are some of the particular issues that the report considers have been problematic with psychological assessments : –

Research has identified a range of criticisms of psychological reports in general.  These  include occasions where:
Psychological evidence has been presented as scientific fact when in fact it is speculation and conjecture 

There has been an absence of psychological theory;


Evidence has been provided concerning concepts which are not accepted within the field and have not been demonstrated empirically.  At times this has had a negative
impact on the outcomes of proceedings (e.g. with one of the most heavily criticized concepts being that of „recovered memory‟)

There has been a failure to provide evidence which is outside the knowledge of the typical judge or juror  

Psychometric evidence has been submitted as scientific fact when it does not meet the criteria for this (e.g. Daubert criterion).  Rather the evidence  has represented
specialised knowledge at most, with some submitted psychometric evidence based on research and not clinical assessment tools

An over-use of psychometrics, not all of which are applicable to the case being assessed.  Over-use of jargon and speculation, with poor content and style and a
failure to include the data from where inferences are drawn 

The credibility of the source has not been included, with no attempt  made  to evaluate the reliability and validity of the methods used to collect data

Psychological risk assessments have focused on first and second generation approaches (e.g. unstructured clinical and actuarial) as opposed to the more reliable
and valid third generation approaches (structured clinical, with or without actuarial anchoring)

Allegations have been reported as facts

Emotive terms have been applied where these could prejudice a decision

They found that 29% of the reports provided insufficient facts and moved ahead to a conclusion. That 22% had significant missing data but still expressed a conclusion.

To illustrate examples concerning missing data, these are as follows:
– Reports on more than one child which failed to include the data on all children but still cited an opinion on all the children;
– Reports drawing conclusions which have not been mentioned in the report, as noted by one reviewer: “Indicates in conclusion that any individuals assessing this
client should be knowledgeable of Aspergers type characteristics and the impactof this on parenting.  This was never mentioned in the report, or assessed, and
appeared as the last sentence” [rater comment].
– Reports where opinions are presented where data was completely absent, i.e.  “Comments on self-esteem, emotional loneliness, perspective taking, sexual risk,
but include no data” [rater comment].
– Reports where the data is completely missed, “Does not include fact section  –goes straight to opinion” or “cites psychometrics but no scores” [rater comment].17
– Report citing opinion without conducting a formal assessment, “stated that client presented as being of average intelligence without deficits in comprehension or
expression, formal intelligence testing was not undertaken” [rater comment].  
Further examples were:  “he seemed, at times, to be quite a jumpy person with arousal levels higher than an average baseline.  No assessment completed of this”
and “did not assess for personality and yet draws opinion on it”.
– Refers to the opinion of another as their opinion, “Refers to someone else‟s report in response to an instructed question” [rater comment].

Ouch.

They then considered the conclusions against the main body of the report  (a particular bugbear of mine, since if you can’t tell why the conclusions have been reached, how is any professional supposed to explain to their respective client why the expert is with them or against them, and whether they should shift their own position?)
Specific background missing/unclear (1). 34.0 %
Limited opinion (2). 17.0 %
Opinion confused or not clearly explained (3) 17.0 %
No background, just opinion (4) 9.4 %
Some opinions, not linked to factors  (4) 9.4 %
Opinions not substantiated (6) 7.5 %
Questions not answered (7). 3.8 %
No opinion (8). 1.9 %

Okay, the “no opinion” at all has a pretty low score, but that probably still represents from that pool five families who waited for three or four months for a psychologist to help decisions about their future to be made and who got nothing more than an expensive Scooby Doo report  (shrug of shoulders, “I-dunno”)

They found that 60% of the reports had missed the requirements of the CPR for an expert report.

They give some examples of the expert straying into areas reserved for the Judge (I point this out, because in general I agree with the report, but I think the example given here is quite badly flawed and rather weakens some of the other criticisms  –  “I am of the view that these children have all suffered significant harm”   – the ultimate decision on that is of course for the Judge, but there are many, many times when an opinion from the expert as to that is helpful, and generally it is provided as an answer to one of the questions. That, I think highlights the difference between the reports commissioned under the CPR for civil matters and for children matters – the expert is there to help the Court with specialised expertise rather than as a ‘gun for hire’ as happens/happened in civil cases. )

But the report isn’t just a woe-is-me hatchet job, it does go on to make some recommendations. They are worth reading in full, but these are the ones that I considered to be very important

 That instruction of experts should be restricted to those currently engaged in practice which is not solely limited to the provision of court reports.  Only
approximately one tenth of the instructed experts were engaged in practice outside of court work.  This is not in keeping with the expectation of an “expert” as a
senior professional engaged in current practice, suggesting that courts are accessing those whose profession is now solely as an “expert witness”.   There
should be an expectation that  psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies
(e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate  continued practice within the areas that they are  assessing (e.g. treatment
provision).   This is a means of ensuring they remain up to date in their practice, are engaging in work  other  than assessment, and are receiving supervision for
their wider work as psychologists.  Connected to this, courts should be wary of experts claiming to complete excessive amounts of independent expert work.

 That the instruction is clearly for the expert to conduct all aspects of the work and not graduate psychologists or assistants.  Such individuals are not qualified with
the term „graduate psychologist‟ used to describe those who have completed approximately one third of the required training (e.g. an undergraduate degree in
psychology and nothing more).  There was evidence of their over-use by experts,who were relying on them in some instances to review collateral information and
interview clients.  Courts should only be paying for the expert witness to complete all aspects of the report


Care should be taken with the use of psychometrics and these should not unduly  influence final judgments.   The current research indicated a wide range of such
assessments being used and not all relevant or up to date.  If tests are utilised then experts should be providing  courts with sufficient information to allow them to
judge their quality.  Using the Daubert criteria as a reference for this would assist with the quality of this information (e.g. provision of error rates, evidence of the
theory or method the test was based on), and assist courts to judge how it should be admitted as evidence.

A need for psychologists to provide provisional opinion and alternative opinions.  

The data from which opinions are drawn needs to be clearly indicated to the court.

The use of tested and/or generally accepted psychological theory to support core findings.    Courts are paying for  psychological assessments and this should be
evidenced to distinguish the opinions from those provided by other disciplines

(Hallelujah to that last one.)

The report doesn’t really get into the other side of the coin, which is – are we asking psychologists routinely to assess parents when it is not the right sort of assessment? When I started, psychological assessments were confined to cases where there was some unusual feature or behaviour and the professionals simply couldn’t understand fully and called in a psychologist to advise on that aspect  (I would add that the professionals at that time would have generally been a social worker very skilled and experienced at assessing families rather than a ‘commissioner of assessments’ and an old-school guardian whose role was to dig into the LA work with the family and see if things ought to have been, or could have been, done differently).  Now, a psychological assessment is routinely considered in neglect cases, where common sense tells everyone concerned that the problems are either motivation, lack of comprehension of what is needed to run a family in a non-chaotic way, or exposure as a child to poor parenting and thus no internal models of how to parent.

We go to psychologists when a social work assessment is what is needed. It is one of my main bugbears with both the Family Justice Review and the LSC cost-caps, that the ISW reports which are independent, swift, cost-effective and actually genuinely informative are sneered at and undermined and costs slashed to the point of extinction, whereas the bloated and we see often of varied benefit escape that exercise.

Rant over !

Respect my prior authoriteh !

 

“I guess one person can make a difference… but most of the time, they probably shouldn’t”   – Marge Simpson

 

I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority.  This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all”  and “the report to be filed and served by 1st April 2012”  to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”

 

 

If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”

 

Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.

 

Order :-

The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case.  In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than                (2 weeks time).  If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.

 

Skeleton

Case No: 

IN THE                                  COURT

 

IN THE MATTER OF

 

AND IN THE MATTER OF THE CHILDREN ACT 1989

 

B E T W E E N:

Applicant

-and-

 

1st Respondent

-and-

 

 

2nd Respondent

-and-

 

 

(by his/her/their Guardian)

3rd Respondent

 

_____________________________

Skeleton argument

Prepared by the Local Authority

______________________________

 

 

Brief background

 

 

Proceedings in relation to                                            were commenced on                          .  [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]

 

The concerns in the case relate to                                           as set out in the threshold document [page reference].

 

 

 

 

On [date] , the Court made the following direction relating to the instruction of an expert:-

 

 

 

 

Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority”  – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.

 

Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.

 

The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

 

 

The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.

 

 

 

The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.

 

It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.

 

This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.

 

 

 

 

Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.

 

 

 

The law

 

 

Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.

 

That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably

 

CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)

 

[2004] EWHC 2529 (Fam)

 

In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision  (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.

 

It will be noted that the LSC played an active role within that case.

 

The principles in Calderdale were revisited in

 

LAMBETH LBC v S (2005)

 

[2005] EWHC 776 (Fam)

Fam Div (Ryder J) 03/05/2005

 

Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.

 

 

Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient)  :-

 

Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents

 

Paragraph 62 : –  “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”

 

Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”

 

 

 

 

 

 

 

 

 

The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party.  There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.

 

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

(a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party

 

 

The Court must consider, in any application to vary or discharge the original order :-

 

Section 1 (1) of the Children Act 1989  “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.

 

And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

 

The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)

 

 

It is submitted as a result of all that has preceded,  that :-

 

(a)    the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)

(b)   the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs  (pace Calderdale)

(c)    The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)

(d)   The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order.  (pace rule 25.4 (4) of the Family Procedure Rules 2010)

(e)    If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989

 

And that

 

(f)    the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.

 

 

The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.

 

In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.

 

In general, the Local Authority would suggest that where Prior Authority is  refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally.  The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.