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Expertly done? A look at the use of experts in family proceedings and changes proposed by Mr Justice Ryder prior to the announcement of his final proposals

Leanne Buckley –Thomson, pupil barrister at 1 Crown Office Row Brighton, considers the current problems in relation to the use of expert evidence particularly in care proceedings and the proposals for change thus far highlighted by Mr Justice Ryder in response. She comments briefly on these suggestions, whilst acknowledging that the proposals have not yet been released in full, and refers to the work done locally in anticipation of what is to come.

Leanne Buckley-Thomson, pupil barrister at 1 Crown Office Row Brighton

Family practitioners will be waiting with bated breath at the end of July when Mr Justice Ryder, Judge in Charge of the modernisation of family justice, announces his proposals for change.  Mr Justice Ryder was appointed to this indisputably difficult role by the President in consultation with the Lord Chief Justice following the publication of the Family Justice Review Panel's final recommendations to the Government and judiciary on the 3rd of November 2011.  The Panel had found that the current system of family justice is under considerable strain exacerbated by rising caseloads and incoherent organisation and process, causing a backlog of cases.  The average time for a case to reach resolution in a care case was found to be over a year, outside the timescales for children.  Key recommendations included encouraging and enabling people to make their own arrangements for their children upon separation with a focus on information education and mediation before court action; an overhaul of the family justice system to include a simplified court structure and the creation of a Family Justice Service to ensure agencies and professionals work together with greater coherence to improve the experience and outcomes for children and families; more specialist family judges to hear cases from start to finish to ensure consistency and confidence; and more child focus and better training for professionals to make sure children's views are heard. 

In respect of care cases in particular, key recommendations included the introduction of a six month time limit for all care cases, save in exceptional circumstances, refocusing the courts on the core issue of determining whether the child should go into care, and less reliance on unnecessary expert witnesses and reports.  It is the latter that is the focus of this short article, an element to proposed changes which could be overshadowed by talk of a single family court and strict time limits for cases.  Proposals in relation to experts impact particularly on care proceedings where the use of expert evidence is most prevalent.

Current problems
In the past, in care cases Guardians would perform a critical review having visited the children concerned frequently, extensively interviewed family members, and viewed files held by the local authority at their offices.  Unfortunately Guardians now have much larger caseloads and do not have the time to carry out such work, relying instead on other sources.  Reports are therefore much shorter, no longer comprising an analysis in the same way with a heavy dependence on position statements.  As such, reliance has been increasingly placed on using experts instead of social workers and Guardians to fill the void.  It is now relatively common for each party to ask for an independent assessment through the course of proceedings rather than there being a consideration and decision at the beginning in relation to need.  This increased use of experts has inevitably led to a flooding of the market.  Experts vary in experience and the quality of their reports, exacerbated by the lack of regulation of their appointment.  Lawyers struggle to identify the experience and relevance of certain experts from their CVs and some resultant reports can be inadequate.  Letters of instruction are not always concise, and due to the instruction of multiple experts the questions asked can end up being duplicated.  In such circumstances the most sought after experts are unavailable for long periods building into delay.  The demand for experts has driven up the cost of the same; although hourly rates have been capped, charges vary enormously.  The fees charged to experts by expert witness agencies may also push pricing up as experts try to recover their expenditure.  The increase in the use of experts has understandably led to a strain on the resources of the LSC and, to the frustration of many, further delay due to the need to get prior authority.  Experts' timetables are disrupted as work cannot be planned as easily, and this builds into delay.

It is indisputable that, in the round, focused and experienced experts with the relevant expertise play an incredibly important role in the delivery of justice and can really make a difference in their assistance to the court in complex cases beyond the training of social workers and Guardians.  It is the current situation of overuse of experts even in the most simplistic of matters, the deskilling and relegation of the reports of social workers and Guardians, and the knock on effect that have led to market saturation and the devaluing of experts.  They do not have the benefit of routine feedback and communication from the courts when they have not performed well and vice versa, so they cannot know as easily when there are changes they need to make to their practice.  It is clear that the current system cannot be maintained; however deciding how best to change the system proves difficult.

A way forward?
Mr Justice Ryder is uniquely experienced when it comes to considering the use of experts in family proceedings, having devised the PLO and Expert Practice Direction following his involvement in formulating the original protocol for case management of public law cases in 2003-2004 and the original private law programme in 2004.  It remains Mr Justice Ryder's intention to announce his recommendations by 31st of July 2012, once these have been agreed by the Family Procedure Rules Committee, the Family Justice Council, leadership judges, the Judicial Executive Board, and HMCTS board.  However, an indication of his plans has been given through the various updates he has penned throughout his appointment.  In his first update, Mr Justice Ryder identified the use of experts and assessors as one of his 10 key work streams for change.  In his second update in February 2012 he noted his intention to publish practical guidance for each of the key work streams in the form of plain language pathways which would identify solutions to particular problems which could then be put into practice.  The intention would be for the guidance to be developed with practitioners who would use it, forming a coherent whole so that all of those involved in family proceedings can understand what is expected of them and what can be expected from others.  It would be published electronically so that it could be reviewed and updated and could provide links to more extensive professional guidance and direction.  He identified this area as a 'quick-win' in his third update published in March 2012, noting that he was working closely with government lawyers and the FPRC to identify rule and/or practice direction changes to give more clarity as to when it is appropriate to appoint an expert and to ensure that the work commissioned is necessary and relevant to the issues to be decided.

In his fourth update Mr Justice Ryder expanded on his plans to introduce language pathways and amendments to the rules and practice directions relating to experts.  In respect of the latter, he noted that changes to the same would make provision for the approach, adding that it is likely that in standard track cases if any expert is needed the expert will be a single expert for a party or one agreed expert rather than the current practice in some cases of multiple experts for each.  He acknowledges the inquisitorial nature of the approach emphasising the role of the court in deciding which issues are to be tried and what evidence is necessary for a fair hearing.  As an additional protection for the parties, he anticipates that any review of the aforementioned rules and practice directions would give consideration to a system for urgent case management appeals.  As it is considered likely that the court will start from the proposition that only such expert evidence as is necessary to decide a relevant issue upon which the ultimate decision is based should be ordered, to reduce the requirement for expert evidence in both tracks Mr Justice Ryder suggests seeking assistance from the Family Justice Council to join with the government in publishing peer reviewed research as to evidence based good practice.  Such research materials, generally accepted by a reasonable body of professionals, could then be used by the judiciary in addition to pathway documents to assist them in their decision making without the need for referral to expert evidence where possible. Mr Justice Ryder does acknowledge that disputes could still be heard in relation to such materials but indicates that the presence of the same should assist in concentrating minds as to whether such disputes are necessary.

The new care monitoring scheme was launched on 2 April 2012 to track every public law case issued from that date with the presumption and expectation that they will be completed within 26 weeks unless there are exceptional circumstances.  A national pilot will take place during 2012-2013 monitoring the progress of cases which the judiciary decide can and should be completed within 26 weeks and where that is not in the interests of the child it will monitor the progress of the timetable set by the court.  Monitoring will involve the judiciary recording all adjournments and the use of experts in addition to the reasons for delay.  This information will be collated so that the government can consider the figures and look at tackling particular problems.  Mr Justice Ryder anticipates that the new single unified family court will be launched during the course of 2013.  New Family Justice Boards are being set up at present which will monitor and drive the changes.

First thoughts
The Practice Direction 25A Experts and Assessors in Family Proceedings, in force from 6 April 2011, already provides clear guidance on the use of experts in family proceedings.  Whilst it was acknowledged by the Family Justice Review that the practice direction is routinely ignored, it is unclear how the provisions contained within it should be clarified further or indeed how to prevent the new provisions from also being disregarded. The guidance already highlights that experts should be identified at an early stage and given sufficient information both to decide whether they are the appropriate expert and to formulate their costs schedule.  It requires parties proposing experts to provide written notice including why the expert is necessary, timescales, their CV and cost in sufficient time for consideration before the CMC.  The court is also to determine whether or not the expert is required and would need to be satisfied that their appointment is necessary in order to determine the issues in the case and that they cannot be dealt with by the social worker or guardian.  The driving force in making it work this time in care proceedings is perhaps the added pressure a 26 week timetable places on practitioners and monitoring.  Certainly the practice direction could be strengthened; at present sections of the practice direction envisages multiple experts, the wording does not strongly deter from instructing experts in certain cases and the guideline questions for experts noted at the Annex to the PD include some questions which could arguably be dealt with by the social worker, Guardian, or proposed bank of peer reviewed research.

Without further information as to the proposal in respect of peer reviewed research, it is difficult to see how this would work.  The reason experts are instructed is not because lawyers are incapable of looking up generally accepted principles in the discipline required, for example bruising in non- accidental injury cases, but because they are not best placed to apply said principles to the subjective case.  Indeed whilst there is no doubt that judges are extremely experienced and perfectly able to make decisions based on the evidence it is questionable as to whether it is appropriate for them to be given the base principles in the form of research documents and be asked to apply them.  There is surely a limit as to how many issues could be resolved by resorting to such a research bank, how much time consideration of the same could take, and given the acknowledgment that such research could be challenged one wonders if perhaps delay will still occur but through that avenue instead.  Indeed, Mr Justice Ryder's nod to the appropriateness of having the ability to resort to urgent case management appeals highlights another potential for delay through other means.

A local initiative
Until Mr Justice Ryder publishes his recommendations in full on 31st July 2012, we remain unclear as to how far the suggestions raised in the updates over the past year will be taken and in what form.  Some localities have taken note of Mr Justice Ryder's updates and have made some headway in determining how they may address the use of experts in their local courts.  As a pupil at Chambers in Brighton, I am particularly aware of the great deal of work that has been carried out by the Experts Working Party there over the past few months.  The group is made up of a number of stakeholders involved in delivering services to the family justice system, from representatives of the judiciary, bar and local solicitors to lead commissioners from each local authority, CAFCASS and local experts.  The group has spent many hours considering how to address the concern over the use of experts in family proceedings, concluding that in reality there is no quick fix.  Key recommendations produced by the group include adopting a local protocol setting out expectations of local authorities pre-proceedings, encouraging local experts to sign up to a memorandum of expectation committing them to agreed minimum standards, allocating longer time to the CMC stage to ensure that the Practice Direction is complied with, tight timescales for providing appointment times and reports, encouraging the Guardian to be more proactive from the beginning of proceedings, and feedback by the judiciary at the completion of proceedings as to the usefulness of any expert report filed.  It is hoped that the pilot proposed by the group will provide some useful information for the improvement of dealing with the use of experts in family proceedings in the future.

It is undeniable that there are large-scale changes to take place in the near future.  The presumption that care cases will be completed within 26 weeks unless there are exceptional reasons, in a climate whereby most cases take double that time, will prove challenging.  To combat such delay is going to be incredibly difficult.  Although the area of the use of experts and assessors has been marked a 'quick-win' by Mr Justice Ryder, it is doubtful as to whether there is such a quick fix when the problem does not simply involve the structure of the system.  It also requires a cultural change regarding the way all agencies and professionals approach the use of experts and how the social worker and Guardian are framed.