More than 700 professionals responding to the group’s survey confirmed there are shortages of experts around the country and in a wide range of specialisms. Delays arising as a result are harmful, ‘in particular, in relation to children under the age of three, where delay may have a direct detrimental impact on the success of future placement’.
The group, led by Sir Andrew McFarlane, President of the Family Division, makes 22 recommendations for change in its draft report, published last week. A consultation will now take place, before a final report is issued in the spring.
The group recommends a review of legal aid rates and processes, more sensitive treatment of experts by judges, training programmes for legal and medical professionals on expert witness issues and ‘a vehicle for feedback from the legal profession’, particularly judges, to experts. Solicitors instructing experts should also ensure the paperwork is kept to a minimum and guarantee that their appearances in court are fixed and not susceptible to last-minute change, and that video link be used where appropriate. Judges should be encouraged to explain the purpose of any cross examination of the expert and, if the judge criticises the expert, they should first question the effect their criticism will have on the expert.
In his foreword, Sir Andrew said health professionals played an important role in assisting the court to make essential decisions on child welfare and the rights of carers.
‘Both health and legal professions have long shared concerns regarding the relative scarcity of medical expert witnesses willing to participate in family cases involving children.’
Experts gave various reasons for not wishing to take on more work, including perceived ‘unnecessarily critical judgments’ and judges needing to do more to ensure lawyers do not ‘barrack’ or interrupt the witness during cross-examination. Other reasons given were low fees, particularly for legal aid work, confusing instructions from solicitors, a lack of appreciation of timescale pressures and a lack of training and support.
