The Ministry of Justice has just announced new measures that have come into force which, we are told, are designed to make the family courts more efficient, faster and all the better to serve the welfare of the children who come before them. But is this the reality, or are we simply watching the system side-step the thorny issue of competence amongst court appointed experts in favour of other nebulous sectors inside this multi disciplinary labyrinth and engaging in a very dangerous cost-cutting exercise to boot?
And what of the power implications? With an ever-evolving remit where judicial discretion is concerned, judges could be seen to be reclaiming power in a system, which until now, has largely marginalised them.
The new measures, which came into force yesterday (31st January) will require the family courts to restrict expert evidence to that which is only necessary to resolve the case before them (and we must ask, what on Earth were they doing beforehand?). Nevertheless, these new measures throw up several concerning issues.
The first is the question of who will be deciding which elements of the case need expert advice. If we are going to rely on judges to do this, most of whom are not full-time family law judges and who have very little training if no training, not just in family law procedure but in the many different aspects, medical, sociocultural and psychological that the field requires, this begs the question as to whether the judiciary really are, in their current state, able to make such decisions. If the government thinks they are, we can expect to see many more cases being appealed over what may appear to be glaring oversights and a lack of understanding on medical matters as well as other matters we have mentioned above.
The second issue relates to the secondary impact of such a measure – parents who feel that various aspects of their case need to be examined may find themselves being shut down on the grounds that the evidence they wish to adduce or test is either irrelevant to their case or not legally required, as set by this new measure. This is most worrying, as it may well mean that significant evidentiary factors are forfeited in the name of expediency at best, and political charlatanism, at worst. If the system plans to curtail evidence, they may well be opening themselves up to accusations that they are denying families their right to a fair trial, especially if decisions about evidence are left to untrained judges who are not au fait with the vast body of work relating to expert disciplines.
The third issue relates to possible alternatives for deciding who will consider which issues need to be bolstered through an evidence based approach in a case. If we are asking experts to offer their thoughts on the matter in this way, not only is this likely to take time, but may well be argued and countered by other experts in the sector who feel their department will serve the case best with their reports and what they feel is the required evidence for a particular case.
If we do not know how the process of narrowing down experts will work, how can we assume that it will in fact reduce delay?
The new measures will also seek to “Take account of specified factors before agreeing to expert witnesses reports, currently, no factors are specified.” Once again, this kind of process will require discussion and most importantly agreement. There is a very real possibility that this kind of process may deteriorate into a “Bidding War”, where various departments fight over which issues are relevant, in order to secure a report within their team. And that would not only increase the possibility of unethical ‘issue-fabricating’ tactics, but could also take even more time, all of which undermines the dignity and outcome of such cases.
The last part of the new measures will be focusing on “approving the questions that are to be put to the expert to ensure they are focused on the determinative issues for the court”. This final segment also concerns us as it effectively binds the expert from going beyond the court’s perceived ambit of the issues at stake. But how can the court know, prior to expert analysis, what all of these issues are, and should the court have the power to restrict evidence procurement in this way? Whilst this may not always be a problem where a case is very straightforward, we can foresee potentially massive complications arising from such pre-emptive strikes.
These new measures have an ominously defensive feel. They do not tackle the quality of expert evidence, nor do they seek to look to appropriately trained parties to sort the wheat from the chaff, so to speak. Instead, they appear to be nothing more than a cost-cutting exercise in a system where the pie has shrunk considerably; an exercise which may well backfire and cost the system just as much if not more, when factoring in the other variables we discussed above which could cause significant expense and delay. Measures, which imply that until now, departments in the family justice system were milking the cash cow for all it was worth whilst resources were plentiful (and therefore not having regard to the Welfare of the Child, or Paramountcy Principle, at all).
These new directives are also just a re-shuffle of the old ways, involving the same hungry departments all suffering from the same conflicts as their expert counterparts. We don’t think expert evidence is always the answer. Indeed, as Professor Ireland’s report clearly shows, there is much that needs to be investigated in that department. But we do think shunting opinion from experts to laymen, like judges, Cafcass officers and social workers, is a very big mistake. Until we invest in the sector and take pride in training the men and women at the forefront of the family courts to a high standard, misery will continue to dominate the system.
The way forward then, is clear; ensure that everyone in the system is highly trained, so that issues are detected early by professionals, court time significantly reduced with the judge having high quality reports to read and a swift resolution which remains respectful of the families and children who come before the courts. Only then will we be able to detect the departments which are not really needed in each case, and not before.
So, isn’t it time the government stopped dancing around the issues and grew some balls? The answer is not in the window dressing; it’s in the substance of the thing.
Spot on. Superficial legislation worded so as to claim it is being implemented in the interests of children using the ‘delay’ angle. It’s not the way to deal with dodgy expert witnesses; that would be to have an independent forensic body immediately on hand to swiftly scrutinise any dodgy reports for the usual fraudulent, persuasive narrative techniques that save the expert from actually doing any work. These charlatans have shot themselves in the foot, so good riddance to most of them.
Yet again, we have an amendment to the law and practice which sidesteps any scrutiny of the judiciary. A profession normally associated and trained to judge what happened in the past, with a set of evidentiary standards and powers to ensure those standards, continues to attempt to predict the future in family law cases, with no reliable tools whatsoever. The word shamen springs to mind.
One day, there will be nobody else but the judges to blame for the mess in family law. We will end up where we should have started; an investigation into the judges themselves. Then, the truth of the Greatest Judicial Swindle will be laid bare; they don’t know what they’re doing, they don’t know what to do, they don’t know what they’ve done, or why they did it. And so long as they can hide in the Hermitage of closed courts, and hide behind contempt of court laws, and remain unaccountable, and maliciously strike back to silence any litigants who embarrass them, they’re not very likely to care.
StuG, thank you very much! I have said the same for years. By blaming social workers for all the wicked deeds. The real culprits are being shielded, THE JUDGES!
‘Then, the truth of the Greatest Judicial Swindle will be laid bare; they don’t know what they’re doing, they don’t know what to do, they don’t know what they’ve done, or why they did it’
Interesting comment. Is this the real reason why so many fathers find themselves backwards and forwards to the Family Courts every few months without seeming to get anywhere. Decisions need to be made but someJudges prefer to sit on the fence. eventually deciding, if dad is lucky, every other weekend and tea on a Wednesday after school. Judges need to step out of the box and provided there are no risk factors to the children, make decisions which are prompt and fair to both parents. This will almost certainly be in the best interests of the children.
Efficiency in this instance relates merely to disposing of the case. In the absence of judicial guidance on what directions to apply to what circumstances, and strict monitoring and imposition of that guidance, efficiency is a euphemism for getting nowhere quicker.
The word the family court professionals need to adopt is “effectiveness.” The wide ambit of judicial discretion was supposed to give them the space to achieve effective outcomes. Lord Woolf in 1995 led the drive for more informed evidence that led to greater use of experts, but he failed to foresee the predictable: that the experts would treat the secret courts like a money go round. It was predictable, because that was exactly what the lawyers were already doing. The need for more informed evidence is itself veiled discourse for admitting the judges cannot cut it. Who was convinced that allowing experts into the courts en masse would change anything, and why? Because they are ‘experts’? What’s in a name? Allowing reams of ‘experts’ into the courts, many of whom had not been in public practice for years, that the court was not monitoring for qualifications, and that judges were not scrutinising, was simply reckless.
Efficiency is preferred because the effects of can be easily compared to the current malaise. Efficiency measurement, on the other hand, requires engagement with the court users for a period of time after their involvement. Broken Britain has never conducted a single, relevant, large scale, empirical study. CAFCASS board meeting minutes reveal they have no monitoring systems; not in the past, present, and no plans for such in the future.
The current piecemeal approach to Family Law ‘modernisation’ is simply using the UNCRC like a piece of cake: “we’ll take this bit A, interpret it like B, and implement C, because it saves money, and claim it’s in the interests of children – somehow. As soon as the specious term ‘in the child’s best interests’ is attached to anything, the passage is greased, the minds of the unknowing are numbed, and the knowing critics are paralysed.
Children and parents have a right to effective representation. It could be that disposing of cheat expert witnesses helps in that regard but when getting rid of them is done at the expense of making them accountable and improving their performance to line up with their legal obligations, we actually move further away from the rights of children than towards them. An uncontaminated, unbiased, altruistic, child centered specialist is exactly what a modern court should have on hand to wrap up cases in good time with the best outcome. instead, we have courts full of expensive, black suited procrastination.
This could be a blessing in disguise. If the Court of Appeal gets clogged up, there’ll be two choices. The first is what seems to happen with inconvenient appeals and judicial reviews; simply parachute some QC in from another jurisdiction for the day to dismiss the applications en masse, allowing a token and manageable number through. The second is to bite the bullet and impose the outcomes according to circumstances and publicise what they are. Then fathers, for one, can put those in place before making applications; families can protect themselves from social service intrusion, resident parents won’t work the system and we can all avoid the shamen behind the bench. But we know that won’t happen. All the ‘modernisation’ (what’s in a name) has been brought about due to the dissatisfaction of court decisions. If the decisions were better, there’d be no need for for change – we would have both effectiveness and efficiency. However, the dissatisfaction with decisions has been sidelined whilst processes have been elevated, allowing His Justice Ryder to quietly state that, even when all the changes are done, it won’t change the day to day decisions.
Whilst being no fan of hers, Harriet Harmann said one realistic thing about the family courts when she stated she could not get access, could not get information, nobody would talk to her, and, as a consequence, they were “legislating in the dark.”
paragraph 3, supposed to read:
“….Efficiency is preferred because the effects of it can be easily compared to the current malaise in terms of reduced applications and time spent on cases. Effectiveness measurement, on the other hand, requires engagement with the court users for a period of time after their involvement to gauge if the order made in the court has been abided by, to what extent and how did it guide events.”
Apologies.
The most Superb mixed metaphore I’ve seen in a long time Natasha. “…stopped dancing around the issues and grew some balls? .”. Conjures up images of fat naked adult males dancing in a Conga line and suddenly collapsing together on the floor and sprinkling fish and bone fertiliser on their genital areas. LOL
!!!! I think, Ragnvald, that says more about you than it does me……
Many expert witnesses have attracted titles of `Hired Guns’ and `Courts Whores’ (there is a book of that title available) – Are these the ones who will be selected as the single experts.?.
Stug – I very much support your comment that: “… to have an independent forensic body immediately on hand to swiftly scrutinise any dodgy reports for the usual fraudulent, persuasive narrative techniques that save the expert from actually doing any work.”
In a recent Family Court case which involved allegations of child sexual abuse it was reported that:
“The court-appointed psychologist said in Court: “Even if he DID sexually abuse the child, what the mother did was far worse! She emotionally abused the child when she told her child that what the father did was bad.”
Then the court-appointed psychiatrist said : “Regardless, if the father DID sexually abuse the child it is now historical and the mother should bury the hatchet and let bygones be bygones.”
Their priority appears to be the protection of the perpetrator’s rights and reputation and to ensure the perpetrator is not punished in any way or at least very leniently. Unfortunately such attitudes towards child sexual abuse are prevalent in Family Courts and in Criminal Courts are readily accepted by the judiciary.
Seems clear there was no evidence to support whether the father abused the child and the psych is trying to persuade the mother to move on. The very, very silly narrative is designed for nothing more than to cover his back; when accused of abuse, nobody comes with a perfectly clean narrative record, where believed innocent or not.
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Reblogged this on sheva.crossofchange's Blog and commented:
i suspect that as Ms A, bravely pushed, so that Dr Hibbert will be before the GMC, may, this year, that others are also pressing for reviews of misleading, damaging treatment & reports, that meant they lost or nearly lost children, that goalposts are being shifted, as happens each time, a wave of protest, groups forming, media attention growing, as cases are presented, the authorities will be able to say, ‘ah, but we do it differently now’, parents are being disempowered, in different ways, as now, those savvy & strong, or lucky enough to call for and succeed in getting an independent expert, to refute the one’s paid for adversarial local authorities, with their children held to ransom, will now find that route unaccessible.
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