Consultation and a draft report
The ‘draft report (for consultation)’ of the President of the Family Division: Working Group on Medical Experts in the Family Courts has been published (end of November 2019). The consultation concluded at the end of January; and the Group intends to present a final report to the President by ‘Spring 2020’ (page 4). This response looks at the factors which arise from the draft report:
- An outline of the law on experts and assessors
- Thoughts on a way forward – proposals for reform – within the existing statute law but outside the recommendations in the report
- ‘Views’ and welfare of children: review of the report in the light of Children Act 1989 (CA 1989) s 1 and United Nations Convention on the Rights of the Child 1989 (UNCRC 1989)
I am no longer in full-time practice (I attach a form of curriculum vitae). I suspect I am not able to offer any useful replies to the questions at the end of the report.
(1) OPINION EVIDENCE AND ASSESSORS: LAW AND PROCEDURE
Opinion evidence: welfare of children, procedural rules and law
In the report there are passing references to family courts procedure; but no summary of the rules, still less of any reference to the relevant underlying law, which governs expert evidence. There are no proposals in the report which urge any reform of the law or procedure to improve the role of experts. (Such proposals would not be outside the terms of reference of the Group).
Any report of this type must surely summarise – if only very briefly – the law on which it is based? A report which calls for ‘possible solutions’, as required by the President, must, by definition, require a critical evaluation of existing court procedures, with the welfare of children as central to its thinking.
The subject of ‘welfare of children’ – which must be central to the subject of the report – only gets one reference in the report (page 4):
We believe that health professionals play an important role in providing expert opinions to the Family Courts to assist the Court in making the essential decisions for both the welfare of the child but also to protect the rights of the carers.
The question of children’s ‘views’ and their ‘wishes and feelings’ (see eg UNCRC Art 12 and CA 1989 s 1) are not mentioned in the report at all (as far as I can see)l; though they are features which must be central to anything which the report considers (see Section (3) below). It is relevant that the case which still guides court on children’s ‘understanding’ (ie Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224) involved a child who was able to choose her own physician. A mature child’s views are important to, though not necessarily determinative of, the appointment of a medical expert?
Opinion evidence and the common law
The law on the appointment of opinion witnesses is governed by the common law, much of which is codified in statute and rules. This is not dealt with at all in the report. A lengthy summary on legal sources may not be necessary in such a report; but some reference to the underlying law would be useful. A few pointers will be indicated here.
Judges are lawyers. They do not generally have expertise in other areas calling for expertise. In the nineteenth century judges became increasingly conscious of this. But the law was, and is still, that witnesses may only give evidence of fact. The common law therefore developed the concept of the independent witness who, thanks to his or her expertise, could express an opinion to the court. In exchange for this privilege, the witness was to be impartial. In a sense the opinion witness was the court’s witness.
Parts of the common law have been codified in Civil Evidence Act 1972 (CEA 1972) s 3(1)[1] – equally for family as for all civil proceedings (the distinction between civil and family proceedings would not have been made – perhaps not even understood – in 1972) so that evidence from an opinion and fact witness is admissible as follows:
3 Admissibility of expert opinion and certain expressions of non-expert opinion
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
This passage stresses two points:
- Opinion evidence, even though not of facts observed by a witness, is admissible from an expert; and
- A witness can be called to give evidence which is outside his or her expertise; but it will then be treated as evidence of fact.
Independence and impartiality
The core of opinion evidence is the impartiality of the witness providing it. It must be the ‘the independent product of the expert uninfluenced’ (see Ikarian Reefer below). This impartiality is essential and must, surely, be at the centre of any procedural reforms which the working group may propose. Procedural reforms – these must be by rule, not by ‘president’s guidance’ or Family Justice Council ‘guidelines’ – must be based on statute of common law.
The essence of the concept of the opinion witness is that the witness is the court’s witness, not the parties’ witness; though, as the law now stands, if opinion witnesses are the court’s witness, judges have no fund from which to pay them. The essential law on the role of opinion witnesses is authoritatively defined by the Ikarian Reefer (National Justice Compania Naviera SA v Prudential Assurance Co; the Ikarian Reefer [1993] 2 Lloyd’s Rep 68, [1993] FSR 563) by Cresswell J at 565 in a passage which survives still:
The duties and responsibilities of expert witnesses in civil cases include the following:
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: Whitehouse v Jordan [1981] WLR 246 at 256, per Lord Wilberforce.
- An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise: … Re J [1990] FCR 193, Cazalet J. An expert witness … should never assume the role of an advocate.
- An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J, supra).
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J, supra)….
- If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
- Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
In Kennedy v Cordia (Services) LLP [2016] UKSC 6, [2016] 1 WLR 597 at para [52] the Supreme Court reaffirmed the importance of this passage as did the Court of Appeal in Meadow v General Medical Council (Attorney-General intervening) [2006] EWCA Civ 1390, [2007] 1 FLR 1398.
The objectivity and impartiality of the expert is emphasised by FPR 2010 r 25.3 (‘overriding duty to the court’, parallel to CPR 1998 r 35.3) confirms the position at common law, as follows:
(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
Could not this common law position be emphasised more clearly by the judges and the rules by literally – not just figuratively – removing experts completely from the forensic fray, save in exceptional cases? They would then truly be the witness of the court. This will be explained later.
Assessors
A little used procedure exits under Senior Courts Act 1981 s 70(1), for appointment of assessors in civil proceedings. Under the heading ‘Assessors and scientific advisers’, s 70 provides:
(1) In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.
There is no obvious provision which states how s 70(2) links with legal aid remuneration (as considered below); though see FPR 2010 r 25.20(5) which says that the normal rate for an expert’s fees shall be the rate paid to a deputy district judge (which seems to conflict with s 70(2)).
The provisions of SCA 1981 have been specifically applied to the Family Court by addition of SCA 1981 s 70(5). These provisions at s 70(1) and (2) ‘apply in relation to the family court as they apply in relation to the High Court’. There is therefore no reason why medical experts as assessors should not be appointed in appropriate cases in family proceedings.
Woolf and the role of the expert
It is worth recalling that the source of the procedural reforms which are reflected in FPR 2010 Pt 25 is, in particular, Access to Justice, Final Report by Lord Woolf MR, July 1996 (‘Woolf’). As Lord Woolf makes clear, he was dealing with civil litigation in civil courts. His report lead to Civil Procedure Rules 1998 (CPR 1998), which were predicated by Civil Procedure Act 1997. Family proceedings were outlawed from use of CPR 1998 (CPR 1998 r 2.1(2)). Despite the fact of FPR 2010 being made more than ten years later, no attempt was made – for example – to fit the rules (the law remained unchanged, till Children and Families Act 2014 s 13) to practice and the law in family proceedings. The report does not grapple with this question; nor with the matter of the continuing appropriateness for children proceedings of a reheated version of CPR 1998 Pt 35.
The issue, not yet clearly resolved for children proceedings, is that the common law (ie judge-made law) has adopted the assumption that children proceedings are non-adversarial (ie ‘inquisitorial’). Citation of authority, it is hoped, is not necessary to confirm this point. If that be accepted, then children proceedings are in a different category from the proceedings envisaged by Woolf who (see eg paras 6-10 Ch 13) provided for ‘Expert evidence within an adversarial framework’. He saw the purpose of the adversarial system ‘to achieve just results’ (para 7 Ch 13). He was not looking at it in the context of the best interests of children.
Children and their best interests are a more abstract concept than justice between two (or more parties). In assessing the welfare of a child the court is not looking solely at justice between two litigants. It is looking at what is best for an individual who may not even be a party to the case. ‘Justice’ may not always be a factor in resolving that question.
Expert: an inquisitorial role
If it is understood that FPR 2010 Pt 25 is based on the assumption that children proceedings are – like those for which CPR 1998 is designed – adversarial, then it is surely open to those who prepare a final report for the President to look at ideas for the reform of rules for experts and children proceedings? The first thing will be to define what is meant by ‘inquisitorial’ and how this concept woks in relation to appointment of experts.
A first answer, it is submitted, is to accept that in the majority of cases experts be appointed by the court with the best interests of the child, and any relevant ‘views’, of the child (UNCRC Art 3 and 12: see below) foremost in the mind of the appointor (probably the case management judge).
And, though Lord Woolf proposed for the first time the idea of a single joint expert, this was overlaid by the right of parties to have their own expert or to object to a report of a single joint expert (Daniels v Walker [2000] EWCA Civ 508, [2000] 1 WLR 1382). Trial by opposing – albeit impartial – experts was still part of the framework of the new rules. Is that model appropriate to children proceedings; and even if it is is it not time to say that the best interests of children no longer demands it.
(2) PROPOSALS FOR REFORM
Reduction of delay
The following ideas arise from a review of the law on opinion evidence and might helpfully supplement some of the recommendations in the draft report:
- Opinion witnesses as the court’s witness, even if formally called by one party
- Experts as assessors
These ideas must please be seen in the light of the central provision of CA 1989 that avoidance of delay is a good thing (CA 1989 s 1(2)). If procedural reform can assist with overcoming delay, then it is to be encouraged. If narrowing of the range or number of experts helps to speed up trial of children cases then – as a matter of law – that is likely to reduce ‘prejudice [to] the welfare of the child’ (s 1(2)).
This could be a criterion by which procedural recommendations are dealt with in the report.
Witness of the court
In that they have a professional expertise and a duty only to the court – and to safeguard the child – the CAFCASS officer has a similar standing to that of the expert witness in children proceedings. This is despite the fact that a party to proceedings calls the expert as witness and pays for them (mostly via LAA in care proceedings). But – and this is a fundamental condition – their deployment in proceedings is only with permission of the court; and in law they attend court only to assist the court (not the party which calls them). They are not giving evidence for anyone. They are involved in the case only impartially to help the court and to assist with interpretation of the facts and of any issues which impact on the welfare of children.
Save for the question of payment for the expert – at present judges or HMCTS have no budget for this (by contrast the tax-payer funds payment for children’s guardians) – there is no reason why the expert witness, save perhaps in exceptional cases, should not be called by the judge. In principal payment can be transferred from one Ministry of Justice purse to another: from LAA to HMCTS, so that then the court would be responsible for payment of expert’s fees. Normally experts would only be asked questions (cross-examined) through the judge; and would only be required to attend court in exceptional circumstances and where the court so ordered.
The effect of this would be that a single expert – or a number of single experts – called by the court would be the rule. Parties might have the option to challenge the expert called (ie to cross-examine); and could apply to have an expert called separately on behalf of their client. This is only likely to be permitted where there is a particularly controversial view in issue or for other exceptional reasons.
A scheme like this would answer a number of the complaints in the report:
- Fewer experts would be involved, and even fewer would be required to attend court to give evidence. Fees could be raised for those involved.
- If questions are put through the judge it is likely that rudeness towards experts from the court and from advocates can be reduced.
- If almost all experts are single there will be no scope for partisanship at all.
This is subject to, and must be considered in the context of, a separate subject: assessors.
Assessors
The role of medical experts as assessors is not touched on by the draft report; yet assessors in children proceedings is a role for which Senior Courts Act 1981 s 70(1) might be though tot have been designed. For example, in a case where (say) a clear medical issue requires definition and adjudication upon and on which – for a suitable fee – the court could give directions which did not impede parties’ entitlement to a fair trial and called upon an assessor to deal with the issue. A judge with medical expert assessor together could define the issue for trial and the assessor – with or without the judge – could try that issue and adjudicate upon it within defined terms.
FPR 2010 r 25.20 sets out rules for appointment of an assessor and the way they can be dealt with by the court, backed by the brief PD25F. For example, an assessor may prepare a report and it will be sent to the parties who may refer to it as part of their case. The exact role of the assessor and the assessor’s powers of decision-making are not clear as the law now stands. These may need definition in rules – even in substantive law – if this role is to be explored.
What is beyond doubt is that, in an inquisitorial area of work, such as children proceedings, the role of the assessor could be considered more extensively. For many years the courts have deployed children’s guardians whose expertise is rarely challenged by separate opinion evidence (though ISWs are involved in cases with increased regularity). Guardians’ recommendations guide the court. The role of the medical expert could be developed, even within the existing law, and can be similar to that of children’s guardian in the way they are deployed in cases?
(3) ‘VIEWS’ AND WELFARE OF CHILDREN CONCERNED
Child’s best interests
Despite the terms of CA 1989 and UNCRC 1989 and their emphasis on children’s rights, especially their ‘views’ the report makes no reference to those views or to the wishes and feelings of the mature child affected by any decision as to appointment of an expert or assessor. As relevant for present for present purposes, UNCRC 1989 Articles 3 and 12 reads, respectively:
1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
The child’s view cannot be determinative; but surely a child of age and understanding is entitled to have that child’s views taken into account (whether through a children’s guardian, the child’s lawyer or by the child to the judge in person)? These are ‘matters affecting the child’.
A procedural rule should be set out in clear terms in FPR 2010 Pt 16 or 25 to deal with this and to put the rights in Art 12.1 beyond doubt on appointment of an expert. It is there is statute and charter law. It should be beyond doubt as part of procedural law.
David Burrows
29 January 2020
[1] For example: s 3 does not seem to have been drawn to the attention of the Court of Appeal in F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244. This was a case which turned on the extent to which a medical witness could give non-expert evidence – that is factual evidence outside her expertise. By contrast CFA 2014 s 13 (which deals with opinion evidence in children proceedings) was given prominence in the case. Moylan LJ was asked to give ‘guidance on the application of [CFA 2014 s 13] and [FPR 2010 Part 25] when a treating clinician or other treating healthcare professional becomes involved as an expert in care proceedings’; but still without reference to s 3. He said not, in the light of ‘the President of the Family Division has set up a Working Group to report on Expert Witnesses and that report might impact on matters of practice’ ([37]).
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