A very interesting discussion was had in the House of Lords yesterday on a proposed amendment to the Legal Aid, Sentencing and Punishment of Offenders Bil, which focused on expert witnesses.
The Lords were looking at Amendment 7, moved by Lord Beecham –
7: After Clause 6, insert the following new Clause-
“Expert evidence
The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part.”
For those of us assisting families inside the family justice system and for families who come before it, this amendment is vital. Too many so-called experts produce reports which even laymen like ourselves can see are poor, and so can the families who are subjected to them.
The discussion is worth a read in its entirety, as it shows the many sides of expert evidence, but of particular interest for family lawyers and McKenzie friends in the field is this observation from Lord Listowel. We have the privilege of working with Lord Listowel, who has a sincere approach to family issues and is hugely knowledgeable. His thoughts in the House of Lords yesterday focused on the need to have high quality expert reports and the importance of the variable quality of those reports at present:
The Earl of Listowel (Crossbench)
“My Lords, I support the noble Lord, Lord Beecham-my name is attached to the amendment-and declare my interest as a trustee of the Michael Sieff Foundation, a child welfare organisation.
I am concerned that the quality of expert witness reports is already variable and that the cuts that Her Majesty’s Government have made in payments to expert witnesses might reinforce that variability. I am particularly concerned that family courts, as they make judgments to remove children from their families, should be as well advised as possible. The noble Lord, Lord Beecham, highlighted the importance of that in the cases that he described.
I begin by thanking the Minister, the noble Lord, Lord McNally, for his encouraging response in a debate on this matter tabled by the noble Lord, Lord Bach, a couple of months ago. There is concern at the way in which the current remuneration for expert witnesses is managed through the Legal Services Commission. The noble Lord, Lord Beecham, referred to that. It was encouraging to hear the noble Lord, Lord McNally, say at that time that consideration was being given to how to meet this concern. It was also good to read later in the Family Justice Review final report that it recommended that the remuneration of expert witnesses should be moved elsewhere. I hope that the Minister may have more encouraging news on this tonight, or perhaps he can write to me.
The Family Justice Review report found that:
“Experts are too often not available in a timely way, and the quality of their work is variable. The Family Justice Service should take responsibility and work with the Department of Health and others as necessary to improve the quality and supply of expert witness services”.
It continued:
“A recent Family Justice Council report examined a sample of expert psychological reports. It identified serious issues with their quality and the qualifications of those carrying them out. Further studies of this type are needed”.
There is a real problem with the consistency and quality of expert reports. Her Majesty’s Government are right to be concerned at the cost of expert witnesses. Judges whom I have spoken to and the Family Justice Review also found that far too many reports were commissioned and that the commissioning of reports and waiting for their completion contributed significantly to the appalling delays that too many children experience as their family cases progress through the courts. I agree absolutely with the Government’s concern.
Judges and magistrates should commission far fewer reports. They often lack confidence in these complex matters. The improved continual professional development of judges and magistrates recommended by the Family Justice Review should help to ameliorate the situation. Reducing the number of reports rather than continuing to make ever deeper cuts in the remuneration of expert witnesses seems likely to provide the best outcomes all round in the medium term. I worry that, if they are not adequately remunerated, the best experts will leave this work, and that would be to the great detriment of children in the courts.
The Family Justice Review recommended something along the lines of this amendment. It stated:
“There is discontent over the way experts are remunerated. The Family Justice Service should review the mechanisms available to remunerate expert witnesses, and should in due course reconsider whether experts could be paid directly”.
The review called for what is in this amendment-a mechanism to monitor and review payments of expert witnesses. It commented on the concern about the cuts in payment of these expert witnesses. It stated:
“It is too early to conclude that the recent 10% reduction in expert witness rates will have an effect on the supply of experts, but the government should monitor this”.
That is very much in the vein of the noble Lord’s amendment.
The noble Lord highlighted that in London there has been an even sharper cut in the remuneration of expert witnesses. Certainly, the expert witnesses whom I have spoken to-and I do not think that they are grinding their own axes-often feel shabbily treated at being paid so little for bringing the benefit of their experience to these important matters. I look forward to the Minister’s response. I hope that he can offer some comfort on this issue”.
The issue of payment for these services is also an important one. We get what we pay for. However, of greater concern is the culture and competence of these experts. We were heartened to read that the Lords were concerned, too.
The quality of expert witness testimony, both written and oral, in Family Courts by psychiatrists, psychologists, social workers, and CAFCASS workers is extremely poor, frequently lacking in accurate factual information, reference to scientifically conducted research, and critical reasoning. Parties to the proceedings frequently complain that the testimony of such experts is fabricated, embellished and distorted.
There is often clear bias and adherence to particular professionbal dogma.
This very serious problem could be easily remedied if the reports and testimony of such experts were open to peer-review, as happened in the Sally Clarke case and with such devastating outcomes for the `Expert’ witnesses concerned.
But of course Family Courts operate in absolute secrecy so the outside world cannot examine the testimony of these experts and expose their flaws to the antiseptic of sunlight.
I am glad that someone somewhere has seen some sense and is looking to remove some of the gravy trainers onboard who are draining the legal aid bill.
One of the fiercest opponents of this is a Dr Paul Jeffries who charges many thousands of pounds per report and he uses out of date, snap and unprofessional diagnosis such as singular Narcissistic Personality Disorder which any psychiatrist will tell you that NPD cannot occur on its own hence the readjustment of it in the DSM/ISM systems.
Jeffries has written several papers on the wonders of adoptions and he is to the family courts as Bush was to clemency in Texas death rows, he has not been known ever to support a family and has always colluded with social workers.
And why should he change? After all he knows that SSD’s see him as a friendly asset and seeing his past record know for sure that he is as good as a victory for them regardless of anything else.
This isn’t justice by any measure!
If these changes based on report performance by critical analysis by the sitting Judge would have been in sooner, it may be that I would not have been an angry grandparent.
Remembering too my time at the Legal Aid Board area 14 back in the eighties, I can say that the legal profession will go almost any lengths to get extra money out of the funds, I even had one solicitor after the third refusal in a particular case threaten to come round and “duff me up” because I refused point blank to accept that his client, living in a mansion, owning and driving Bentleys was living on less than 4000 a year.
And it has to be said that it is such instances that are sucking the fund dry, I also consider that SSD’s should be made more accountable for their actions as they will not hesitate to get in very expensive experts, barristers etc. the cost is rubber stamped by the government, I think that one area of reform is that if they were to find they would end up forking out of their own budgets a bit more and more restraint from the teat of government funding, that we would see more aptly applied cases in front of a Judge.
I think that a further adjustment in that social services initiate proceedings and that the Judge should be given the freedom to decree that the SSD for patently frivolous cases or cases relying on opinion or hearsay should seek the defendants costs applied to them as well.