Children update

On 1 December 2011 the Family Justice Council hosted its annual debate at the Parliament Chamber of the Inner Temple: 'Experts in the family court: are they worth it?' The topic is highly pertinent at the moment, especially for those involved in children cases where expert assessments are common features of the litigation. Few will have escaped the fact that generally speaking the fees payable to experts and other service providers (such as process servers, interpreters and photographers) under community legal services funding certificates granted after 3 October 2011 are fixed accordingly to prescribed rates set out in The Community Legal Service (Funding) (Amendment No.2) Order 2011 (SI 2011/2066).

It seems that the experts are not taking matters lying down. A group of experts with the snappy title 'The Consortium of Experts Witnesses to the Family Court' are 'launching a judicial review of the decision to implement the caps' (https://www.jspubs.com/experts/ewire/itemtext.cfm?ewid=223) and inviting donations of a minimum of £200 to assist its cause.

The consortium cites the results of a survey that shows that consultant neurologists charge an average of £235 per hour. It does rather grate on me when experts suggest that such rates are reasonable. I am sure that the hardworking and expert consultant neurologists deserve to get paid this hourly rate but when the equally hard working (if not more so) and expert legal aid solicitor attracts an hourly rate (also prescribed by the LSC) that is about a quarter of the consultant neurologist, then that is where my sympathy starts to wane. It is worth pointing out that the employed solicitor does not achieve even close to this hourly rate in his/her pay packet. The prescribed hourly rate is what the firm bills out to the LSC, and, in many forms of legal aid work, the entire case is paid only as a fixed fee per case (subject to rules for exceptionality).

Most legal aid lawyers chose social welfare law as their career base. They do so because of some ethical, moral or personal conviction that using the law to assist the vulnerable, disadvantaged and socially excluded is important; they do so knowing that they will not earn anything like their counterparts in city firms or other more well-paid settings. There are some legal aid lawyers who do not really care for the work and they are the cohort we do not support as their lack of quality reflects badly on our sector of the profession and only exacerbates problems in the system.

Similarly, experts may have to accept that they cannot charge whatever they like or feel they deserve when it is public money which funds them. Many solicitors have long accepted derisory rates and continue to accept the cuts that have been made. They do so not willingly or easily (our representative bodies continue to fight against such cuts) but because they have a passion for the work and believe in access to justice for their client groups. Where we draw the line is: (a) where cuts are likely to cause unacceptable reductions to the supplier base; (b) where cuts simply threaten the work being done to an acceptable standard; and (c) threaten the ability of firms to pay reasonable salaries to quality solicitors, which in turn generates concern about paralegalisation of what has been and will continue to be complex work.

Improving the system

Back to the debate: it was chaired by the president of the Family Division, Sir Nicholas Wall. Apparently arguing for experts was Dr Heather Payne and family barrister, Malek Wan Daud. Those against were District Judge Nicholas Crichton and Steve Goodman (former deputy director of Hackney's children and young people's services). I say that the sides were 'apparent' only because it was fairly clear early on in the debate that all the debaters believed that experts were (in answer the debate title) 'worth it' but there needed to be some changes. Some points that I noted to be of interest:

• Experts should be recruited early and instructed forensically.
• Not everything that one wants to know is 'knowable' and experts should be involved in the construction of the questions in the letter of instruction.
• Experts want regular feedback from the cases as this provides effective learning.
• We need a 'rethink' although we do still need experts.
• There is a sense that we have lost control of our own proceedings. In bygone years the experts were the allocated social worker and the guardian ad litem (now children's guardian). They provided the court with an expert view.
• The family drug and alcohol court (FDAC), which operates at the Inner London Family Proceedings Court, has the hallmarks of a model that could be applied (given its multi-disciplinary assessment structure) to other common features within care proceedings such as mental health issues, learning difficulties and domestic violence.
• The independence of experts was a crucial element to their value in proceedings.
• There is a tension between the treating medical practitioner and the independent court-appointed expert.
• The latter is instructed to conduct what is principally a forensic exercise and report to the court. That is not the role of the treating practitioner and to confuse those roles is dangerous.

FJR recommendations

I am sure that the experts' debate will continue to rage outside the Inner Temple's Parliament Chamber. The Family Justice Review (FJR), which was published in November 2011, made some recommendations about experts. We await the government's response to the FJR. Some key points that feed into the debate were that the FJR recommended that:

• Multi-disciplinary teams have the potential to provide a better service of expert assessment and a further pilot should be undertaken.
• Primary legislation to reinforce the message that regard should be had to the impact of delay (incurred in the process of obtaining an expert assessment) on the child's welfare.
• Judges must direct the process of instructing expert witnesses as a fundamental part of their responsibility for case management. This should not be delegated to the representatives of the parties.

The last recommendation sings harmoniously with a comment the president made when answering a question from the floor. When a lay magistrate suggested that at times the justices were not confident to refuse requests for the assessments, the president said: it is your case, if you don't want an expert, just say no and make sure you give your careful reasons. I suppose he makes it sound so easy, and, for a judicial office holder of his standing, maybe it is.

Certainly in the case of R v A Local Authority, B and A B C (by their children's guardian) [2011] EWCA Civ 1451, the president (who sat with Rimmer and Jackson LJJ) expounded this approach. Here a father was granted permission to appeal by Black LJ at an oral hearing following a refusal of permission on the papers. The father had sought before the trial judge a second expert report regarding risk he was alleged to have posed. The judge refused that request having heard live evidence from the first expert reporting on the issue, the father and taking account the views of the parties on the issue. The president held that: 'It follows that a judge now decides each application for a second opinion on its merits by reference to the criteria set out in the overriding objective, the practice direction and the Family Procedure Rules 2010 (the FPR). In each case it is a matter of judgment, and the critical questions remain: do I need this report in order to enable me to deal justly with the case? What will the additional expert add to the case?'

Time to abolish court fees

Finally, and as an anecdote from the world of social media, having started to read the FJR, I noticed that once again an independent report commissioned by the government (the FJR) had recommended that the fees that a local authority has to pay when issuing an application for a care or supervision order under the Children Act 1989 should be scrapped. I tweeted: 'Plowden's report told @MoJGovUK to abolish the court fee for care cases. Norgrove's report says the same too. Will it happen now?'

In September 2009 Francis Plowden published a 132-page report on the issue (at the government's report). This recommended that the fees be abolished. The government took no action to implement the recommendations. My tweet was really a manifestation of my concern that the government already had the opportunity to revise/abolish the fees given robust recommendations made by Plowden and I wondered whether it would make any difference now the FJR was positing the same recommendation. I also wondered why, if the government chose to follow the FJR recommendation, the government should have to be told twice. It also must be borne in mind that the taxpayer had to foot the costs of these expensive reports which then make recommendations that the government does not follow!

I was quite surprised when I received a 'reply' to my tweet from the government (@MoJGovUK). It said, in what must be the most classic of unhelpful replies: 'We'll be responding to the Family Justice Review in due course. Will tweet when the response is published.' The phase 'tell me something I don't know' comes to mind.

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