Fees cut threatens case delays

The introduction at the start of December of new fee scales for expert witnesses to give evidence in family courts will, according to some, have far-reaching implications for the smooth running of the family justice system, not to mention those children whose futures it will be deciding.

The move by the Ministry of Justice will see the hourly rate paid by the Legal Aid Service to social care and medical professionals for giving expert testimony in a care proceedings case fall by 20 per cent across the board.

It is one of a series of changes agreed by the MoJ earlier in the year to reduce the UK's legal aid bill, some of which are already making it harder for expert witness evidence to be introduced in court, according to senior figures in the children's legal system.

Expert witnesses usually give evidence in public law cases to help the court reach a decision on the best course of action for a child's future care. They can be applied for by legal teams representing the council or the family, or by children's guardians.

Challenging nature

Barbara Hopkin, a children's lawyer and spokeswoman for the Association of Lawyers for Children, says it is already difficult to find some clinical experts, such as paediatric radiologists, child psychiatrists and psychologists, to take on work because of its challenging nature, and that the fee cut will only make this worse.

"Lots of people have stopped doing fantastic work because they don't like the way they are treated. We won't be able to get them in," she says.

Phil King, director of the National Association of Independent Social Workers, also predicts there will be a shortage of experts willing to give evidence with potentially worrying consequences. "It will restrict the amount of opinion judges say they need to make some of the most fundamental and far-reaching decisions in a child's life."

Since July, local courts have been managing cases using the public law outline (PLO) legal guidance that paves the way for the introduction in April 2014 of legislation that sets a target of 26 weeks for completing care proceedings.

Although the legislation will allow judges to override the target in exceptional circumstances, there is a concern it will make them less likely to appoint expert witnesses because of the possibility this could delay proceedings.

King says: "By all means let's have a target, but you shouldn't fetter the discretion of judges. There are cases where judges will need to say it will take a bit longer."

Christine Carter, managing director of Carter Brown, one of the largest providers of expert witnesses, says cases are being "rushed through" court since the introduction of the PLO.

"It's very clear that they don't want experts in the case," she says.

The proportion of applications for expert witnesses Carter Brown has had accepted to public law cases has dropped from 30 per cent to 17 per cent in the past year. Carter admits this could be due to work going to other companies, but thinks it a reflection of the reduction in courts using them. "Courts are no longer appointing an independent paediatrician to do an assessment - they say that's no longer necessary and are using a hospital paediatrician to do a longer report."

She adds: "Children could be removed and permanently adopted without having a second opinion of the causes of injuries."

Time restrictions

Courts also now cap at 30 hours the amount of time they will pay an independent social worker to do a family assessment, even though Carter says it cannot be done in that time. "It is difficult to do an assessment in 50 hours. You either can't do the work or spend more time on it than you get paid.

"You are losing the most experienced and dedicated people - every time an expert takes a case, their reputation is on the line."

Carter believes the cumulative effect of all the changes will be that decisions about children's futures will be taken quicker and be based on less information. "I think there will be more appeals on the basis of what is happening," she adds.

Despite the fee cut, Kevin Gibbs, head of service at the Children and Family Court Advisory and Support Service, thinks experts will still be available to courts when needed. He says: "They do it to give their opinion on the life chances of a child rather than being driven by finances. Our expectation is that will continue."

Andrew Webb, president of the Association of Directors of Children's Services, is also sceptical that the fees cut will have a lasting impact on the system. "Family courts have become too used to using experts when they are not necessary. If there's a reduction (in expert witness use), then it won't do anything other than reduce costs and speed up the process," he says.

Webb thinks there needs to be a register for the accreditation of experts in all professions so that when a court allows their use, the expert's level of expertise is known.

"It would be run by a royal college or other body and create minimum standards expected of experts," he adds.

Expert witnesses

Early this year, the Children and Family Court Advisory and Support Service (Cafcass) published findings from a survey of children's guardians about how effective they thought expert witnesses had been in care proceedings cases during a period in 2012. It found:

• Expert witnesses had been used in 70 per cent of cases in 2012, compared to 92 per cent in 2009
• Independent social workers were instructed in nine per cent of cases in 2012, compared to 33 per cent in 2009
• Adult psychiatrists and psychologists were the most frequently instructed experts, contributing in 25 and 38 per cent of cases respectively
• Cafcass guardians said that evidence provided by 88 per cent of experts helped the court make a decision on the care application
• Child psychologist were deemed to be beneficial in 75 per cent of cases, compared to 100 per cent for drug and alcohol testers, paediatricians and multi-disciplinary assessments