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The New Standards for Expert Witnesses

Louise McCallum, Barrister at Zenith Chambers, Leeds looks at the new national standards for family court experts, introduced by Practice Direction 25B.

Louise McCallum, barrister, Zenith Chambers

Louise McCallum, barrister, Zenith Chambers

Practice Direction 25B – "The Duties Of An Expert, The Expert's Report And Arrangements For An Expert To Attend Court" came into force on 1 October 2014. 

The 2010-2011 Family Justice Review elicited concerns regarding the delays ensuing from, and the quality of, some expert evidence in the family courts.  Feedback submitted to the Family Justice Review indicated weaknesses in the system of oversight of experts.  

In May 2013 the Family Justice Council and Ministry of Justice jointly published a consultation document entitled 'Standards for Expert Witnesses in the Family Courts in England and Wales'.  This consultation paper contained proposed standards drafted by the Experts Working Group of the Family Justice Council.  The response to the consultation essentially indicated clear and overwhelming support for the introduction of new minimum standards for expert witnesses in family proceedings relating to children.  The proposals contained in the consultation paper are substantially incorporated in the Practice Direction. 

The Practice Direction is of course part of the wider substantial reforms to the family justice system.  The 'necessary' test must be surmounted: the court being under a duty to restrict expert evidence to that which in the opinion of the court is necessary to assist the court to resolve the proceedings justly.  Having reduced the occasions when expert evidence will be given in children cases, the Practice Direction now aims to produce improvements in the quality of such evidence. 

The changes, requiring minimum standards for experts are intended to ensure all experts providing evidence to the family courts in proceedings relating to children are prepared and able to demonstrate an acceptable level of competence and experience.  Changes to public funding rules will also ensure that in publicly funded cases involving children, solicitors may instruct only those experts who meet the standards.

The provisions
The Practice Direction of course supports FPR Part 25 and should also be read in conjunction with:

The Practice Direction ('PD25B') applies to 'children proceedings' as defined by FPR 25.2(1).

Who is an expert?
Under FPR 25.2(1) an 'expert' is a person who provides expert evidence for use in family proceedings.  Section 13(8) of the Children and Families Act 2014 Act ('the 2014 Act') excludes social workers, Cafcass officers and Guardians from the scope of expert evidence.

The previous definition contained in the existing PD25B is used.  Pursuant to paragraph 2.2, 'expert' includes a reference to an expert team which can include ancillary workers in addition to experts.   As before, the final expert's report must give information about those persons who have taken part in the assessment and their respective roles and who is responsible for the report.

Need for the court's permission
Para 5.1 restates the need for the court's permission to put expert evidence (in any form) before the court, as provided by section 13(5) of the 2014 Act and FPR 25.4(2).  The overriding objective in FPR1.1 applies when the court is exercising this duty. In children proceedings, the court's permission is required to instruct an expert and for a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in the proceedings as provided in section 13(1) and (3) of the 2014 Act.

The expert's duties
Under para 3.1, PD25B an expert in family proceedings continues to have an overriding duty to the court that takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

Para 4.1, PD25B lists the particular duties of the expert to which the expert must have regard.  The duties reflect those already in place, save for the key change that under para 4.1(aa) in children proceedings, an expert must comply with the Standards for Expert Witnesses in Children Proceedings in the Family Court set out in the Annex to the practice direction.

Standards for expert witnesses in children proceedings
These standards are comprehensively set out in the Annex.  Subject to any order made by the court, expert witnesses involved in family proceedings (involving children) in England and Wales must comply with the standards.  Significantly this requirement applies whatever their field of practice or country of origin. 

Eleven minimum Standards are required by PD25B:
1. The expert's area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.

2. The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.

3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.

4. The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.

5. If the expert's current professional practice is regulated by a UK statutory body (see Appendix 1) they are in possession of a current licence to practise or equivalent.

6. If the expert's area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis. Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care (see Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.

7. The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.

8. If the expert's current professional practice is outside the UK they can demonstrate that they are compliant with the FJC 'Guidelines for the instruction of medical experts from overseas in family cases'.

9. The expert has undertaken appropriate training, updating or quality assurance activity – including actively seeking feedback from cases in which they have provided evidence- relevant to the role of expert in the family courts in England and Wales within the last year.

10. The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

11. The expert should state their hourly rate in advance of agreeing to accept instruction, and give an estimate of the number of hours the report is likely to take. This will assist the legal representative to apply expeditiously to the Legal Aid Agency if prior authority is to be sought in a publicly funded case.

Statutory bodies
The Standards require experts to have appropriate accreditation, and/or professional registration.  The Appendices are designed to assist practitioners to identify by or with whom an expert should be so accredited/registered.
Appendix 1 of PD25B sets out extensively the UK Health and Social Care Professions and Statutory Regulators with responsibilities within England and Wales.

Appendix 2 sets out examples of professional bodies / associations relating to non- statutorily regulated work.

Content of the expert's report
Para 9.1 sets out in detail the matters that must be contained in the report and emphasises that the report must be filed in accordance with the court's timetable.  These duties reflect those contained in the existing practice direction.  The provisions concerning the Statement of Truth are however bolstered to give effect to the new Standards imposed upon experts.

Statement of truth
A significant provision of PD25B is that the report must be verified by an amended statement of truth set out at para 9.1 (j).  The first paragraph reflects that already in place, the second paragraph is an addition:

Where the report relates to children proceedings the form of statement of truth must include – 

"I also confirm that I have complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to Practice Direction 25B- The Duties of an Expert, the Expert's Report and Arrangements for an Expert to Attend Court"

Under Rule 17.6 of the Family Proceedings Rules, proceedings for contempt could therefore be brought against an expert who asserted, dishonestly, that they had complied with the Standards for Expert Witnesses set out above. 

The Practice Direction otherwise reflects its predecessor.  Para 6 of PD25B continues to set out the procedure for making preliminary enquiries of an expert (complemented as before by PD25C and PD25D).  Para 8 sets out the information that should be obtained from an expert, in time for the permission hearing or advocates meeting, if held earlier.

Para 10 of PD25B sets out details of the practical arrangements that should be made further to the expert's attendance at court.  This includes matters such as ensuring that a date and time for the expert to give evidence is arranged in good time, achieving a logical sequence to expert evidence and narrowing the issues which the experts are to address.

The new Standards bring about significant change.  Some of the responses to the Consultation suggested that the previous system for assurance of experts was virtually non-existent.  The requirements will not of course guarantee the quality of evidence given, but will ensure that experts are appropriately qualified and experienced.  In those very rare cases where an expert dishonestly misrepresents their expertise, contempt proceedings could be brought. 

The requirement to instruct an expert who fulfils the Standards will inevitably result in more pre-instruction work for solicitors.  Further, it remains to be seen what effect the imposition of these Standards will have on the availability of experts.  Most practitioners will already have seen a reduction in the small pool of experts willing to give evidence in this sensitive field, following the imposition of lower fees for experts.  It is hoped that the effect of these Standards will only be to filter out the expert lacking necessary experience, rather than deter the good expert.  On careful reading the good expert will see that they are readily able to comply with the Standards.