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.