Use of expert witnesses decreases in family courts: Cafcass

The proportion of s.31 care applications involving the use of an expert witness has declined from 92% in 2009 to 70% in 2011-12, according to new research published by Cafcass.

Cafcass said that its research showed that the use of experts is becoming more selective in line with Family Justice Review (FJR) recommendations (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181133/FJR-2011.pdf) published in 2011. The FJR said that the the "increasing and unjustified" use of expert witness reports was causing delay for children in some cases, although it also acknowledged the positive contribution to proceedings of expert evidence where appropriate.

The study - entitled The Instruction of Expert Witnesses within Section 31 Care Applications - also found that 88% of the Cafcass Children’s Guardians surveyed felt that those expert witnesses who were instructed were beneficial to cases.

Cafcass Chief Executive Anthony Douglas said: “Cafcass’ research yet again shows that the family justice system is responding to the government-approved recommendations made by the Family Justice Review, even before legislation has been put in place.

“At a time where scarce resources must be directed to the right areas, we agree with the Family Justice Board that the use of expert witnesses should be limited to cases in which they are absolutely necessary, in accordance with the latest Practice Direction from the President and emerging case law. Cafcass Guardians have found the input that experts have in their cases to be really helpful. The right expert can offer unique insight and value about into a child’s needs. In such cases, Cafcass Guardians said that the evidence offered by expert witnesses has increased the speed of proceedings.

“We know the negative impact that delay has on children and Cafcass will continue to work with agencies in the family justice system to ensure that experts are only commissioned where additional expertise to that of the social worker and Children’s Guardian is required.”

Other findings recorded by the survey included:

Half of expert witnesses instructed focus on adults

The survey found that adult psychologists were the most commonly instructed type of expert, accounting for 30% of all the experts instructed in the sample cases. Adult psychiatrists were next, comprising 20% of all the experts instructed. These two types of experts account for half of all experts instructed in the care cases that made up the sample. Child psychologists and psychiatrists made up 10% of all the experts instructed and paediatricians, 6%.

Significant drop in use of independent social workers

Independent social workers (ISWs) accounted for 7% of all the experts and were instructed in 9% of all the sample cases, demonstrating that there has been a substantial reduction in the instruction of this type of expert in recent years: a review of public law cases which concluded in 2009 found that ISWs were instructed in 33% of cases. This reduction chimes with the FJR’s recommendation that “independent social workers should be employed only exceptionally”.

Association between the instruction of experts and case duration

The study also found an association between the duration of the sample cases and the instruction of experts: those with experts instructed lasted an average of 12 weeks longer than those without. Reducing delay in care cases is a key aim of the Family Justice Board, with positive progress already made towards the proposed limit of 26 weeks duration, as set out in the Children and Families Bill.

A copy of the full report can be downloaded from the following link: http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf