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Independent assessment in family courts

Volume 700: debated on Monday 6 September 2021

Petition of a resident of the United Kingdom

The petitioner Aaliyah Spence, the mother of three children who lives in England,

Declares that two of her children have bradykinin-mediated angioedema. This is a disease where the children appear to have blemishes just like bruises.

Further declares that this was first noticed when she took one of her children for medical attention. Further declares that much like the case of Sabrina Dietsch and Yoan Bombarde in France her children were then taken into care. Notes, however, that whereas in France the children were returned to their parents, in England, it is very difficult to obtain independent assessment that enables the review of her case and therefore her children remain in care. Further declares that, even though the blemishes that were thought to be bruises continued to appear whilst the children are in foster care, the local authority continues to be set on keeping control of the children. Notes that this is not in the long term interests of the children.

The petitioner therefore requests that the House of Commons refers the issue of the lack of independent assessment of expert reports in the family courts to the Justice and Education select committees for review.

And the petitioner remains, etc.[Official Report, 27 May 2021; Vol. 696, c. 5P.]

[P002668]

Observations from The Parliamentary Under-Secretary of State for Justice (Lord Wolfson of Tredegar, QC):

There is already detailed legislation in this area which emphasises the independence of experts and the key role of judicial discretion in determining when and what area(s) of expert evidence should be put before the court.

Section 13 of the Children and Families Act 2014 makes detailed provision in relation to the control of expert evidence, and of assessments in “children proceedings” (which term includes care proceedings). Points of particular relevance to this petition are:

the court controls who is given permission to instruct an expert to provide evidence;

the court may only give that permission if “it is of the opinion that the expert evidence is necessary to enable the court to resolve the proceedings justly”; and

there are a list of factors to which the court must have particular regard, including the impact which giving permission would be likely to have on the welfare of the child, the issues to which the evidence would relate, the questions which the court would require the expert to answer and the cost of the expert evidence.

Section 13 of the Children and Families Act 2014 is underpinned by detailed rules of court practice and procedure set out in the Family Procedure Rules 2010 and the supporting Practice Directions. These rules and practice directions are developed by the Family Procedure Rule Committee, working in close conjunction with Government officials. The Committee is made up of judges and legal and lay practitioners, all of whom are experts in family law.

The Family Procedure Rules 2010 and the supporting practice directions set out a comprehensive framework. New provision in relation to experts was put in place in 2014 to support the coming into force of section 13 of the 2014 Act. Part 25 of the Family Procedure Rules 2010 provides direction regarding the use of experts and assessors in family courts.

Rule 25.3 sets out that the duty of an expert is “to help the court on matters within their expertise”, and that this “overrides any obligation” to the person instructing or paying the expert. Particular duties of an expert are set out in Practice Direction 25B (The Duties of an Expert, the Expert's Report and Arrangements for an Expert to Attend Court). It follows that any person giving expert evidence in family proceedings must be independent and must be in no way obliged to support a given party’s case.

The president of the family division, Sir Andrew McFarlane, established a working group to identify the scale of the problem of medical expert witness shortages in the family courts, to look at the causes and to identify possible solutions; the final report was published in October 2020. The report concluded with recommendations which suggest a number of improvements in relation to payment, court process, treatment of experts, training required and how these changes could be sustained.

Recently, the Family Justice Council co-ordinated an event aimed at medical and allied health professions, family lawyers and judiciary to encourage such experts to offer their services in family justice system.

It is evident, then, that the Government, the Family Justice Council and the Family Procedure Rule Committee continue to consider the role of the experts and independent assessors in the family court.