A Series of Articles Exploring Family Court Experts
UK Family Courts and Expert Witnesses 1
Part 25 Expert Witnesses: Introduction
This is the first in a series of articles looking at the provision in law that family judges be permitted to instruct expert witnesses to assist the family court resolve difficult legal proceedings.
The focus of this series will be on expert witness quality when instructed to assist in family court cases where children in separated families are expressing resist/refuse/reject behaviours towards one of their parents i.e. a child has difficulty to various levels in spending time or reuniting with one of their parents. The parents have, for whatever reason, not been able to resolve issues between them, and the family court has been asked for assistance.
The issue generally faced by the family court is one of investigating whether the resist/refuse/reject behaviours are due to realistic estrangement, where a child justifiably has issues with seeing a parent, or has been turned against one parent by the manipulation of the other i.e. there’s some level of naive, active or obsessive coercion directed towards the child by one parent that’s causing them to needlessly express issues with being near the other parent. Colloquially, it’s also known as parental alienation.
Both justified estrangement and parental alienation can severely affect the welfare of children. Both can be resolved, but need to be treated accordingly. The treatments may not be easy to apply, so the treatment provider needs to be supplied with as much relevant and accurate information as possible. If prior assessments by experts are to be instructed at court, they need to be thoroughly carried out.
The relevant section of law authorising UK family courts to instruct experts is Part 25 of the Family Procedure Rules and its Practice Directions A-E. Para 5.1 of Practice Direction 25B states:
“The general rule in family proceedings is that the court’s permission is required to put expert evidence (in any form) before the court. The court is under a duty to restrict expert evidence to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”
There are two ways an expert can be instructed. The first is upon the court’s consideration of an application under Part 25. This is normally a C2 application within family legal proceedings that are already ongoing for some time without resolution being achieved by the court. The applicant is normally either the parent that has not seen their child for some time, or a children’s guardian.
Children’s guardians are appointed under Part 16 of the Family Procedure Rules and represent the child’s interests in litigation. Guardians are normally experienced social workers working for CAFCASS, an agency under the Ministry of Justice providing social work opinion for family courts, or the independent advocacy charity, NYAS (the National Youth Advocacy Service). Guardians are normally appointed in difficult private law cases before experts are brought in, and may have a persuasive influence on a judge of whether an expert is required or not. The Family Procedure Rules reflect that whilst respected, guardians are not experts. A judge can over-ride any guardian’s recommendations, including any objections to the court instructing an expert. There seems no legal requirement for a guardian and expert on the same case but policy and practice at court seems to be that they are usually instructed in sequence: guardian first under Part 16 (see Rule 16.4) and then, if required, expert under Part 25.
The second way an expert can be instructed is by a judge using their own initiative and case management powers.
An applicant under Part 25 will need to list the reasons why it is necessary for the court to resolve the case with the instruction of an expert. The list will need to include matters that the court is unable to fathom on its own. Family Procedure Rules Part 25 and Practice Directions 25A-E will need to be thoroughly digested by parents and lawyers making applications for experts.
As said, Part 25 applications are normally raised by a C2, within proceedings application, but can be requested in the C100 form initiating legal proceedings (multiple applications can be made on any C100 or C2 form). Part 25 applications can also be raised orally at a hearing, but it seems only where matters have arisen at that hearing to justify a lack of earlier, written application in line with the procedures detailed in the Rules. Otherwise, the application must be made with every step as required by Part 25 and Practice Directions 25A-E.
It seems some judges have tightened practice to ensure procedures are fully complied with before instructing experts under Part 25, presumably because a parent that may not wish their children or themselves to be subjected to expert assessment can successfully block the application on appeal. The need, cost, stress and unknown outcome of any appeal should be avoided if at all possible. So satisfying themselves that procedure is adhered to can insert judicial delays and additional hearings, but judges probably feel they have to play safe to avoid their case management decisions being appealed, and causing much lengthier delays. Litigants in person, or lawyers who do not follow the usual procedure, can ask the court to use its discretion under FPR Part 4 case management powers to waive any procedural shortcomings or errors in the application in the interests of justice and the over- riding objective of FPR Part 1, but the court will need to agree with the applicant that any shortcomings in procedure can be waived in a child’s best interests.
The normal practice is for the applicant parent and the respondent parent at court to be allowed up to three choices of expert. However, it has been known for judges to be flooded with dozens of possibilities. The CVs of the parties’ proposed experts are provided to the judge for them to select which one gets the instruction. Most are ‘single-joint’ experts; that is, one expert jointly instructed by all he parties. The term ‘jointly instructed’ applies even where one party did not get one their choice of expert appointed. One of the solicitors in the case acts as the ‘instructing solicitor’, constructing the Letter of Instruction for issue to the expert. The expert is permitted by the court to speak to children in the case and observe what they need to in order to conduct their evaluations. Assessments normally last some weeks with the expert required to provide a written report 2 weeks or so prior to the next directions hearing.
The process outlined above seems quite thorough. However, child-parent separation negatively impacts on the mental health of all family members. To avoid or mitigate damage, it should be ensured that principles are not sacrificed to satisfy procedures.
The first principle often sacrificed in a busy court system is that of avoiding delay, enshrined as a key principle in section 1 of the Children Act 1989. In other litigation, decisions about experts are generally made early in proceedings but, sometimes, in private family law cases, that progression can take years. If children are being alienated, their mental health, and that of other family members, may be deteriorating. For instance, children, meanwhile, are not reunited or provided other supports, whilst left under what may be the banal influence of an alienating parent. Delays mean their conditions worsen to the extent that complicated treatments may be required. Treatments can be expensive, and cannot be paid by Legal Aid. I knew one case where the judge accepted the children were alienated, but because delays meant the alienated parent no longer had the funds left for thei children’s treatment, it couldn’t be directed. Had the expert and treatment been directed three years earlier, the alienated parent would have had the funds, and the children’s treatment would not have needed to be so complicated or expensive. Instead, the children were denied necessary assistance, then when it became complicated enough to be still possible but expensive, their need for treatment came second to their separated parent's ability to pay.
The Letter of Instruction (LOI) is, in effect, the expert’s contract with the court and the parties. It details the outline of the case to date and why the expert is required. Importantly, it tells the expert what specific issues the court has, and needs help with. Normally, there are a set of questions for the expert to investigate and respond to. The contact details of the parties are included so the expert can act independently. The dates by which the expert has to report are provided.
Again, all apparently good. But what can go wrong? Well, many things, it seems. LOIs are constructed by one lawyer in proceedings, and lawyers are sometimes competitive, often advocating to support their client’s position. Background details may be altered to suit their client’s position in the LOI, to try to sway the opinion of the expert. Issues to be investigated can differ in an LOI to what was intended by the court. The LOI may be issued without its contents viewed and agreed by other parties, or the court. It’s possible for weeks of delay to ensue whilst parties jostle on what should be in the LOI, even where a judge has been specific. Sometimes, the matter has to return to court for the judge to decide on the LOI’s content or perhaps even direct that the court prepares the LOI instead.
Other issues may be that the expert is not provided requisite permissions or scope of work to reliably evaluate the family. For instance, let’s suppose there’s a family where one child presents with resist/refuse/reject behaviours but another child in the same family is still happily seeing both parents. Any competent expert would know that it’s vital to assess and treat the family unit rather than specified members. To that end, the expert would need to meet all children and relevant attachment figures to evaluate the family unit. But it seems normal practice to omit any child not currently presenting with serious issues, so permission to see that child is not sought by advocates or given by the judge. These, and other potential shortfalls in evidence-gathering, need to be carefully considered before issuing the LOI.
Getting the right expert
The most pressing issue is one of the Court selecting the right expert for the job. And here, we have a particular problem, it seems, in the UK. Especially so where assessing justified estrangement vs parental alienation is concerned. These types of intensive forensic assessments are complicated and not taught on traditional psychology or medical courses. They are a completely different discipline and set of skills, requiring extensive additional training to export professional and clinical principles from one type of practice and environment to another. It’s accepted by top experts that the skills needed to assess attachment, for instance, will probably not be fully sought or achieved by established practitioners because the courses are so extensive that most do not have the time to undertake them. Without specific training, even well-informed experts can erroneously recommend solutions that may be appropriate in their usual field of working with individuals but are wholly impractical when assessing families, and won't work for children in the environment of the family court and its case management abilities.
Experts who are not thoroughly trained in family dynamics and these specific kinds of mental health issues caused by adverse family functioning, and who are aware of pros and cons of UK family court environment will not possess the relevant theory, or procedures to adequately apply it. The chances are that they will cause children and families more harm than good, not least through further delay and stress.
There will be several more articles appearing here on the theme of expert witnesses at family court, focusing on competence. To view them, you can (i) keep checking back to the CAFTT website (ii) hope to catch the articles as they pass around social media or (iii) subscribe here to be notified when new articles and other invites are produced.
19 May 2022