Weekly Family Law Update November 12, 2020

Medical experts and a courts review

Report on Medical Experts in the Family Courts

A report has been published on the subject of medical expert witnesses in the family courts. The report was commissioned by the President of the Family Division Sir Andrew McFarlane in 2018 in response to concerns over shortages of medical experts prepared to be involved in family cases.

Medical experts are often used in family proceedings, in particular in care proceedings, for example to assist in identifying the cause of injuries to a child. The report makes a number of recommendations to address the problem, including allowing medical experts to give evidence remotely, rather than having to spend time attending court.

 Responding to the report the President said:

“In recent years it has become increasingly difficult for the Family Justice system to find experts who are willing to give evidence in Family Court proceedings … Expert evidence is often necessary in order to decide cases justly and the reduction in available experts therefore presents a serious problem. In autumn 2018 I asked Mr Justice David Williams to convene a Working Group drawn from the legal and health professions to investigate the problem and to suggest solutions.

“The report of Williams J’s group … is a most thorough piece of work which makes 22 recommendations aimed at reducing expert shortages. Some of these recommendations include the development of online training resources, engagement of professional bodies, amendments to legal aid guidance in payment provision, as well as the requirement for greater efficiency in court paperwork and processes, and better local and regional co-ordination.  Helpfully the working group discerned a silver lining in the COVID-19 cloud in that remote hearings demonstrated real advantages in making attendance at court hearings less disruptive of clinical practice and also in the convening of multi-disciplinary meetings.

“The work of the Group has already led to changes in the Legal Aid Agency processes that will improve witness participation. The Family Justice Council will take many of the recommendations forward, encouraging health and other professionals to put their expertise to use in the family courts.

“It is my hope that a reinvigorated expert witness workforce will enable the Family Court to continue to deliver the best outcomes for children, young people and families.  Mr Justice Williams and I will be monitoring the implementation these recommendations over the next 12 months to make sure we retain the quality and quantity of experts needed.”

Child safety courts review launched

The Government has launched a review which will consider how the current approach to decisions on parental contact made in the family courts is impacting child safety. The review will assess whether the right balance is being struck in private law cases between the risk of harm to a child and their right to have a relationship with both parents.
Currently, the presumption of ‘parental involvement’ which the courts are required to follow in their judgements encourages a child’s relationship with both parents, unless the involvement would put the child at risk of harm.

A recent review into harm in the family courts system found this presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’. It recommended further analysis of how the courts were applying this presumption of parental involvement so that the impact could be properly assessed before determining whether a change in legislation or other reforms are needed

Justice Minister Alex Chalk said:

“We are determined to strike the right balance between making sure children are safe while ensuring they have the best possible family life.

“This is a complex area and any action we take following this review must be rooted in solid evidence. That is why it’s so important we take the time to look at this thoroughly.”

The review is expected to report back next year.