Minister promises early rule changes on expert witnesses in family courts

The Government is to unveil early changes to court rules on the use of expert witnesses in family proceedings, Justice Minister Jonathan Djanogly has said.

The changes, which will be brought in through secondary legislation, are intended to ensure that reports by expert witnesses are used only where necessary to determine a case.

Speaking at a Westminster Hall debate, the minister also said the courts would be required to ensure that such evidence was properly focused on the key questions that the court needed answered.

The main changes will be:

• 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, a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed.

Those factors will 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,” Djanogly said.

The Minister added that the Government recognised that minimum standards were necessary for expert witnesses in the family court.

Work is ongoing with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses, he said.

Djanogly added: “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.”

A consultation will be held with key stakeholders on proposed minimum standards, which the Government hopes to have in place later this year.

A study published by the University of Central Lancashire in March this year found that one in five psychologists instructed to act as expert witnesses in the family courts appeared to be inadequately qualified for the role on the basis of their submitted CVs. 

The research also found that two thirds of the 126 expert reports reviewed were rated as below the expected standard. Some 90% of instructed experts maintained no clinical practice external to the provision of expert witness work, UCLAN added.

The minister also said the quality of submissions made to courts by local authorities must be improved. “In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports,” he said.

The Children and Families Bill will make it explicit that the court should focus only on issues essential to its deliberations, while the “bureaucratic” processed connected with the renewal of interim care orders and interim supervision orders are to be removed.

In addition, where a case is already before the courts, the need for an adoption panel to consider whether a child should be placed for adoption will be removed.

Djanogly added that HM Courts and Tribunals Service had allocated 4,000 extra sitting days in the county court exclusively for family work.

The Minister meanwhile said that the six-month time limit for all bar exceptional public law cases was “a limit, not a goal” and that where cases could be completed more quickly, they should be.

The fact that judges will have to give reasons for delays in open court would give a picture of performance and weaknesses in particular parts of the country, he argued.

Philip Hoult