Witness anonymity is vital to child safety
Friday, June 24, 2011
The task of keeping children safe is already full of perils and hazards. Now two legal cases may have just made it harder to be an expert witness in child protection cases.
In the case of XYZ, the president of the family division in the High Court has ruled that a paediatrician, acting as an expert witness in child protection proceedings, can be publicly named. He also ruled that the expert report and the expert's fee can be made public.
The second case, Jones v Kaney, ruled that expert witnesses were no longer immune from being sued. Members of the Royal College gave evidence in XYZ and as an organisation we sought to oppose the abolition of anonymity, based on the best interests of the child.
However, it is fair to say that we cannot now expect anonymity for expert witnesses. Freedom of expression rules the roost and we are now in an era of increased transparency and openness, both in family court proceedings and at national government level generally.
We all know how sensitive and complex child protection proceedings are, and what can happen to professionals in the aftermath of a high-profile tragedy. To some, it will feel as if you are damned if you do and damned if you don't, and that criticism – and possibly disciplinary proceedings – will follow whether you over-diagnose or under-diagnose child abuse.
We are in a position where many health professionals are very reluctant to undertake child protection work. This is a pressing issue and ultimately there is only one group that will lose out – the children we all seek to protect. Everyone is scared of being the next scapegoat, and developments such as the two recent cases make it more difficult to reinforce the message that child protection really is everybody's business.
Expert witnesses are already in short supply. There are thought to be less than 100 consultant paediatricians (out of a total of more than 3,000) who are willing to act in that capacity. With judgments like the ones we have seen, there is a real risk that this number will reduce even further. Trying to persuade people to give evidence when they know they will be neither anonymous nor immune from being sued is a real challenge. Without the right number of experts, we will see longer delays and increased costs – not good for either children or taxpayers. Doctors feel stigmatised, targeted and unprotected. We must of course weed out those who do not meet the high standards required. But what we don't want is bona fide experts being unwilling to be involved.
There are advantages to transparency – we can show the public and the media how extremely difficult child protection decisions are, and demonstrate that experts do a good and useful job the vast majority of the time. However, what we don't need at the moment is more disincentives for undertaking child protection work. But this is what we might create.
At the moment, treating doctors are anonymous, and long may this remain. If they are publicly named, it is likely that the identity of the child will be revealed. This cannot happen. Family proceedings are about the welfare of the child, and we must ensure they remain protected.
There are some important developments coming up – the government response to the Munro Review, the final report by the Family Justice Review and the revised General Medical Council guidance on child protection. Let's hope they recognise that increasing support for expert witnesses in child protection is a must.
In the meantime, it is up to all of us, despite the pitfalls, to continue trying to protect vulnerable children to the best of our ability and remain assured that, if we do a good job, we will be fine.
Chris Hanvey is chief executive of the Royal College of Paediatrics in Child Health