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….