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Are we guilty of "Trial by Expert"?

John Fox, of Lamb Building, voices his view that social care experts, welfare officers and reporters are wielding too much influence in the family courts.

image of dr jon fox, barrister, lamb building

Dr John Fox, Lamb Building

May I remind the court, I heard myself saying, of the wise words of Lady Justice Butler-Sloss in Re M and R [1996] 2 FLR 195 that the Judge should never lose sight of the central truth: that the ultimate decision is for him.

I am becoming concerned at the increasing part that experts of all kinds are playing in the decision making process in our courts, particularly family courts. Nothing happens without a report, and the reporter is becoming ever more powerful. This position has been allowed to develop to such an extent that if we are not careful it will be the experts who are running the courts, and we will have reached the proverbial case of the tail wagging the dog.

When was the last time you looked at section 7 of the Children Act 1989? Section 7 (1) states:

"A court considering any question with respect to a child under this Act may ask [an officer of the Service] to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report."

Section 7 (4) states:

"Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of (a) any statement contained in the report and (b) any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering." (The italics are mine).

The position is therefore clear. The judge may order a welfare report, but he does not have to, and he may take account of the contents of the report, but he does not need to. In my view, that is not how it works in practice.

Take a private law application for contact or residence. In most courts, if conciliation is unsuccessful, and it often is, a welfare report is nearly always ordered, and as we all know, that report, certainly in London, takes about 14-16 weeks. A hearing date is fixed for a date shortly after the expected date of the report, and unless something urgent arises, nothing happens until the report is received. If the report is late, and it often is, the hearing date is adjourned. What happens when the report comes through? That depends on whether the report is favourable or unfavourable. From the point of view of one of the parties, if it is a publically funded case, and a large proportion are, and the report is favourable, then the case can proceed to a hearing. However, if the report is unfavourable, then there is a problem. Public funding is usually dependent upon a favourable welfare report, so that for public funding to be extended to a trial, there has to be an independent opinion, usually from counsel, to the effect that public funding should be extended to the trial, notwithstanding the unfavourable welfare report. That is not easy to obtain. I know that the purpose of the procedure is to avoid wasting public money on unmeritorious cases, but what is this procedure if it is not trial by welfare officer.

Suppose that the case is privately funded, or an opinion has been obtained which results in public funding being extended, then the case, if not settled, may well proceed to a hearing. The report still carries a great deal of weight, because judges are very greatly influenced by the report. May I remind you that judges are supposed to take the report into account. In practice they almost always follow the recommendations in the report. In fact, if a judge wishes to follow a different path he is obliged to set out in terms his reasons for so doing. Of course I understand that the judge may well follow the recommendations because the recommendations are usually sensible, but it is a question of attitude. The party who is trying to urge the court to follow a course other than that recommended is in effect in the position of a party appealing against the decision of the welfare officer. The judge tends to take the position of an appellate court, and applies G v G principles ([1985] 1 WLR 647), ie the welfare officer has seen the parties and the children, visited their homes, contacted the schools etc, and is in a better position to make a decision. So where has the welfare officer gone wrong?

All of the above means that welfare officers are very powerful people, and it is not a good idea for any party to get the wrong side of the welfare officer. And clients often do. I know that the reporter is supposed to rise above pettiness and deliver an unbiased report, but they are only human, just like the rest of us.

The position is even more difficult in public law cases. Anyone whose children become the subject of applications for care or supervision orders will have a battery of social workers and other experts to contend with. Such cases usually start and often finish in Family Proceedings Courts, manned largely by lay magistrates and the occasional district judge. The applicant is almost invariably the local authority, and from the point of view of a parent, they wield a very big stick. If you are a parent and you disagree with the opinion of the local authority, you can be sure that there will be a report suggesting that you "are not able to prioritise the needs of your children".

Assuming that the threshold criteria are reached, and this stage is often not seriously challenged, there then follows a series of assessments, both of the parents and the children. Parenting assessments, risk assessments, paediatric assessments, educational assessments, genetic assessments, the list is seemingly endless, and all undertaken by innumerable experts. These assessments necessitate great co-operation by the parents, involving numerous and frequent visits to the experts and by the experts, both announced and unannounced. These investigations place an enormous burden on the parents and often lead to friction between the parents and the experts, particularly between the parents and the social workers. But woe betide you if you disagree with the social workers.

Furthermore, the experts frequently seem to expect such a high standard of parenting. Have local authorities and judges never heard of the decision of Hedley J in Re L (Care: Threshold Criteria) (Family Division 26 October 2006) in which, dismissing the Local Authority's application for a Care Order, the learned Judge said

"Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. Children will inevitable have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting."

As from 1 April 2008, the Public Law Outline came into force. Plainly we will have yet to see what impact the new regime will have, but I am rather afraid that the result may be an even greater tendency for "trial by expert". One of the objects of the new system seems to be to emphasise a form of "front loading", in that parents will receive a type of "letter before action", warning them of deficiencies in their parenting, and making it clear to parents that proceedings will be issued unless the Local Authority's concerns are addressed. It is hoped that such a system will reduce the need for the issue of proceedings, but the end result may be a form of "pre-trial by expert".

So what can practitioners do to redress some of the imbalance between the experts and their clients, because imbalance there is. The first principle is to recognise that experts have an inherent tendency to think that they know best. It is very difficult to argue with an expert, and getting an expert to change his mind is almost impossible. If as a parent you express a view different from that of the expert it will almost always result in a report suggesting that you are unable to prioritise your child. That is expert-speak for he won't do as I tell him. Clients have to be told early on that they have to decide whether or not to co-operate with the experts, and they must be told that co-operation brings better results. Fighting a war with the professionals appointed in the case rarely makes life easy, and usually results in a prolonged case and an unsatisfactory ending.

Unfortunately, to many parents the expert is the enemy. In many cases that may be correct, but it rarely helps to say so. Practitioners must try very hard to instil a spirit of goodwill into the case, so that the client and the expert seem to be on the same side. This is not an easy task.

However, the easiest way to bypass trouble with experts is to avoid them altogether. In private law cases this can certainly be achieved. Following family breakdown, frequently one or other of the parents is spoiling for a fight. Don't let your client fall into that trap. If the children are young, there are many years of parental contact ahead, so, even if your client wants you to, don't start off with a letter setting out all the dreadful failings of the other side. Ask your client to consider the effect on the person receiving the letter. Is it likely to achieve the desired result? Is it likely to achieve a swift agreement? See yourself as a peacemaker rather than a warmonger. Even if agreement cannot be reached before proceedings are begun, there is still time to avoid the expert report. Co-operation, often aided by Mediation, can work wonders. Parents sometimes just need to talk to someone to get their frustrations off their chest. Take every opportunity to negotiate.

If all else fails, and an expert report is ordered, don't just sit back and wait for the report to arrive. Impress upon the client how important it is to come across as a reasonable and loving parent, and how important it is to recognise the good qualities of the other side. A litany of failings on the part of the other parent rarely impresses an expert. It just tends to show how unreasonable you are.

If your client is involved in public law proceedings, in order to achieve a favourable outcome, it is even more vital to encourage co-operation with the experts. In fact, it is very difficult to achieve any kind of success without it. The tendency for clients to rant and rave when faced with criticism by the experts is very understandable, but must be curbed at all costs. The only foolproof method of dealing with experts is to agree with them. Of course, there will be cases where it is debateable as to whether the threshold criteria have been reached, and it must be worthwhile not conceding the point, but in the majority of cases, the Local Authority is justified in bringing proceedings for care or supervision orders. In those cases carrying on a war with the experts is counterproductive. After all, the object on the agenda is to get the children back as soon as possible. So if the Local Authority wants your client to undertake parenting classes, try to get your client to agree. "I don't need parenting classes" doesn't work. The way to deal with experts is to work round them, not try to barge through them.

At the end of the day, the only way to curb the power of the experts is through the judges. However, I see little evidence, at least in the lower courts, that the role of the expert is waning. Perhaps in our increasingly complex lives such a trend is to be expected. But we must be on our guard to see that the role of the judge does not become completely subsumed into that of a rubber stamp. We still need judges to perform that most vital of their functions. Judging.

I am fortified in that view by a number of recent decisions. For example, Oldham MBC v GW and PW [2007] EWHC 136 (Fam); [2007] 2 FLR 597 was a care case where the family court and the expert had got it wrong. At paragraph [87] of his judgement Ryder J said

"In my judgement, he (the expert) and the court at first instance fell into error when (the expert) unconsciously strayed from the role of expert into the role of decision-maker and the court failed to detect that that was what had happened.".

In the same case at paragraph [22], Ryder J quotes from a decision of Charles J, A County Council v K, D and L [2005] 1 FLR 851 at paragraph [89], where the learned judge said

"…in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision-maker…".

Further, in Re W (Care: Threshold Criteria) [2007] EWCA Civ 102; [2007] 2 FLR 98, the Court of Appeal, in allowing a mother's appeal against the making of a care order and ordering a rehearing, at Paragraph [59] said

"…the judge placed undue reliance on the evidence of JS (the expert), and did not weigh properly in the balance the many positive factors in the mother's case…"

I recommend those decisions to the court.

John H Fox (Dr)
Lamb Building
Temple EC4Y 7AS

If you would like to respond to any of the views expressed in this article please email us at info@familylawweek.co.uk.