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Changes to FPR lead to decline in instruction of experts

LA social work assessments replace evidence of psychiatrists, psychologists and ISWs

The Ministry of Justice has published findings of a study exploring the processes by which family law experts are appointed and the contribution experts make to just and timely decisions in the family court.

The study was commissioned in light of changes made to the Family Procedure Rules on 31 January 2013 (and later enshrined in the Children and Families Act 2014).

Participants believed that the new Family Procedure Rules had led to a decline in the instruction of experts, although there was less consensus across professions that this had led to more appropriate use of experts. Whilst many experts felt that expert evidence was not now commissioned frequently enough, judicial interviewees were positive overall about the developments concerning when, and how, experts are appointed.

When determining whether an expert was necessary, the judiciary highlighted important factors, including their own capability, skills and experience.  This decision was not always made independently but was taken in collaboration with the parties and legal representatives of a case.

Specialist or medical experts were considered necessary on the basis that their expertise was outside that of the court. However, psychiatrists, psychologists and ISWs were less likely to be considered necessary by the judiciary as they suggested that this type of evidence could be sufficiently provided by a robust local authority social work assessment. Whilst the judiciary considered that this had led to a more effective use of local authority social workers, other professionals argued that social workers were being asked to provide evidence outside of their expertise.

Experts raised some concerns that the perceived decline in the commissioning of expert reports was resulting in a reduced pool of available experts. This concern was often expressed alongside considerable frustration in relation to the fees and hours available to complete publicly funded expert work, meaning that some experts were no longer willing to undertake this work.

It seemed that expert reports were being filed more quickly since the introduction of the new rules. This was largely attributed to the commitment of professionals within the family court and independent experts to ensure that care cases are completed within the statutory timeframe of 26 weeks. Where there were delays in cases with experts, these were related to issues with late, incomplete or unclear letters of instruction, insufficient communication between parties and lack of access to relevant information.

The judiciary acknowledged that a good expert report could facilitate and support sound decision-making in family cases. Participants – largely non-judicial professionals – reflected on cases where an expert was not appointed, and raised potential concerns about the impact this may have for children and families.

The new Rules were considered to have improved letters of instruction (LoIs).

Perceptions of the impact of the new Family Procedure Rules on the quality of expert reports were more mixed. Whilst experts, particularly psychologists, expressed the view that a reduced pool of experts would subsequently affect the overall quality of evidence available to the family court, they did not think the quality of their own work had been affected. The judiciary did not share these concerns and believed that the overall quality of reports had not been affected.

The impact of the new standards to improve the quality of expert evidence was less evident. Although awareness of the standards was good and they were welcomed to ensure experts were qualified and regulated, some participants felt that they simply reflected existing practice. A process for monitoring whether, and how, experts meet the new standards may therefore be beneficial.

All professional groups were receptive to the provision of feedback for experts, although they reported that it was not regularly provided.

The report is here.