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Child witnesses could "dry up" under media spotlight, family judge warns

17 November 2009

Lord Justice Wall, a senior family judge, has warned that confidential information from vulnerable child witnesses and others could “dry up” as a result of the campaign for greater media access to the family courts.

“I have no doubt that if the government has its way, confidential information from children and others will dry up,” he said.

“Nobody is going to be frank about their problems if they feel that they are going to appear in the press.”

Lord Justice Wall told the annual Bond Solon expert witness conference in London: “The advantage of transparency, properly addressed, is, of course, that it will demonstrate to the public the difficulty and sensitivity of the decisions which the family justice system has to take on a daily basis.

“The disadvantage is that we are in the hands of the media, which is interested in personalities, not issues. Thus if, for example, a journalist reports day one of a hearing, the evidence may be contradicted or wholly negatived on day two, when the journalist is not present.

“And, of course, if the journalist chooses not to report the judgment, there is nothing, as I understand the government’s present proposals, which can be done about it.”

Wall LJ proposed that a “detailed protocol” should be drawn up, following tri-partite discussions between lawyers, experts and press.

“Issues, say the judges, do not depend upon identities, but if there is to be reporting, it must be fair,” he said.

“Experts must pay their part. They must, in my view, play the case according to the book. They must follow their instructions: they must abide by good practice.

“They must be honest and clear. If they are, they will be supported by a judiciary committed to rebut the canard [false rumour] of ‘secret justice’.”

Wall LJ said he was sorry he could not give the audience of almost 300 experts greater comfort and that “if the government has its way” they would be named in media reports.

He proposed that where experts gave “sound evidence” judges should say so in their judgments and then release a copy of that judgment, anonymised to protect any children involved.

He said that, even if the press did not report it, the judgment would still be in the public domain and the expert could use it in his or her defence.

“I am appalled by the ignorance of the view that the expert in a given case is a ‘hired gun’, willing to say anything the payer of the report wishes him to say. Nothing, in my experience, is further from the truth.”

Mark Solon, managing director of Bond Solon, said it was clear that experts were concerned about their personal security if they were named.

“In theory public access to the family courts is a good idea, but the practical difficulties are numerous,” he said.

Solon added that he was also concerned that experts were not keeping up to date with around 50 amendments to the Civil Procedure Rules which had been carried since 1999.

In particular, Solon said that under part 35 of the CPR experts were required not only to sign a statement of truth, but also a declaration of awareness of the updated civil procedure rules.

“Experts are being asked to be lawyers as well as experts,” Solon said. “It is up to lawyers to ensure compliance with the court timetable.”

He said that experts blamed solicitors for a lack of communication regarding court timetables, late instructions and a lack of feedback on the progress of trials.

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Procedures Expert witness The Bar