New family experts' standard should include core skills

Experts in the new environment in the family courts must not only be necessary but seen to be necessary, not only be qualified but seen to be qualified in the skills of being an expert witness. They must also work for less under legal aid limits, but more quickly. It's not surprising that many experts, aware of potential liability in contract and negligence since Jones v Kaney, are jumpy.

The Ministry of Justice's consultation on Standards for Expert Witnesses in the Family Courts in England and Wales is set to introduce new minimum standards. A few days before the consultation closed on 18 July, Lord Justice Ryder said that the test to determine if experts were "necessary" was key. If they don't get through the gateway, they will not be allowed to give evidence. (The results of the consultation will be published at the Bond Solon Expert Witness Conference on Friday 8 November.)

Speaking at the Westminster Legal Policy Forum on family reform on 16 July, Ryder LJ reiterated the need for properly trained experts who kept up to date with CPD style training. But he was unable to comment on delays to legal aid authorisation for experts that can delay the whole court process. He was keen to promulgate the reforms to witness evidence in the family courts, which would see a greater role for social workers and CAFCASS officers.

Returning to first principles that a court will hear expert evidence on issues that require expert knowledge, I think it is still vital that only the right experts are called. Social workers and guardians are not some sort of new generic expert and we do not want to end up with a Sir Roy Meadow situation where evidence outside the witness's field of knowledge is adduced. Lord McNally may have concerns about the impact of "so-called experts who provide evidence which is simply not up to scratch" but it's important always to have the best evidence when the future of a child is at stake.

If the purpose of the standards is to assure quality, then it is unclear why the standards should not apply to all experts instructed in any family proceedings, and to any expert instructed in proceedings before the courts of England and Wales. Generally, the court's permission is required before a party may rely on expert evidence and, therefore, the standards could be used by the courts when deciding whether to allow a party to adduce expert evidence at trial. While the standards have been drafted for use in children proceedings, the principles would appear to be equally applicable to all expert witnesses reporting to the court.

The sort of wording for the standard dealing with "quality assurance activity relevant to the role of expert" is not clear. I suggest that the core competences for experts are: an understanding of the relevant procedural rules of court; report writing; and giving evidence. It would be helpful if the standards specifically referred to these core skills.