A survey of over 700 legal and medical professionals commissioned by England’s most senior family judge has revealed real concerns about the availability of expert witnesses in the family courts. A draft report by The President of the Family Division Working Group on Medical Experts in the Family Courts includes detailed survey results and a series of recommendations in response to the difficulties identified.

The shortage of experts willing to act in cases involving children is linked with delays in resolving cases, which has a real life impact upon children who need decisions to be made about their futures. This is of particular concern where the cases involve children under the age of three, for whom delay can severely damage their chances of achieving a successful future placement outside their birth family.

Why do we need expert witnesses in the family court?

The family court makes decisions about children in a wide variety of different contexts. This can include cases where a child is felt to be at risk of significant harm, necessitating the involvement of their local authority and – in some cases – removal from their birth family. It also makes decisions in cases where parents cannot agree on living arrangements and how children will spend time with each parent after separation. This encompasses cases where domestic abuse is a factor and where parental conflict has become so acute that it represents a risk of emotional harm to the children involved.

In many cases, the court can make a decision based on the evidence of each parent, social workers (where they are involved), relevant other family members and a representative of CAFCASS. However, there are circumstances where the court cannot decide the outcome without expert assistance.

For example, a very young child may have sustained injuries while in the care of their parents. There could be competing accounts of how this injury came about, including whether it was accidental or intentional. A paediatrician and/or radiologist (expert in medical imaging) may be instructed to analyse the child’s injuries to help the court reach a view on the likely explanation.

In another case, a child might be exhibiting extreme distress when asked to spend time with one of their parents. A psychologist may be asked to meet with the family and provide a report to the court to assess the origins of this distress and recommend strategies for managing the situation in the child’s best interests.

In both scenarios, the experts’ evidence will play a major role in helping the court decide who the child should live with and/or spend time with.

Why is there a shortage of expert witnesses?

The survey report identified shortages of expert witnesses across a variety of specialisms including psychiatrists, psychologists, paediatricians and neurosurgeons. Individuals who had provided court reports in the past were found to be unwilling to consider doing so in future for a variety of reasons.

58% of healthcare professionals surveyed “expressed concern about criticism in the press, by the judge or in cross examination”. It is not difficult to see why a busy, senior healthcare professional would be concerned about having their expertise called into question in court during an adversarial process and risking their reputation by undertaking additional work they are not required to accept as part of an ordinary clinical practice. As the report finds:

“With the complexities and demands of practicing in the modern NHS, it is perhaps not surprising that few individuals are willing to take on the challenges of being a medical expert.”

No one is suggesting that healthcare professionals should be immune from scrutiny: quite the reverse. It is only through testing all the evidence properly that a fair trial can be assured. The stakes can be very high indeed in family court cases and it is easy to see why an expert witness would simply not want to get involved. However, without a proper supply of specialist expert witnesses, the courts will struggle to make well-informed, timely decisions about some of the most vulnerable children in our society.

Respondents also cited as problematic inflexibility in court timetabling, the volume of material experts had to consider, issues around payment and lack of support from NHS Trusts.

What’s the solution?

The report is not all doom and gloom. The working group formed to address the issue has put out 22 recommendations for consultation and has called for “engagement at senior legal with the Department of Health and Ministry of Justice as well as NHS”. Possible solutions include:

  • action by Royal Colleges (professional bodies with oversight for various medical specialisms) to create online resources and promote existing training opportunities, and foster a more supportive environment for medical expert witnesses
  • reform of payment arrangements to reflect properly reflect the amount of work involved
  • ensuring appropriate treatment of experts during court hearings, in judgments and afterwards
  • opening up opportunities for medical professionals to shadow judges and take part in medico-legal training

This is a very real problem that has been brewing for a number of years. In my personal experience, it can be very difficult to secure the involvement of an appropriately experienced expert within a timescale that avoids substantial delay that cannot but be harmful for the children involved. This is an issue in both private law (cases between parents) and public law (cases involving the local authority). I really hope that this report and its draft recommendations will help address these difficulties and encourage healthcare professionals to consider undertaking this vital work.