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The importance of being an expert

The reasons for using expert evidence in care proceedings vary greatly and depending on the circumstances of the case. Where a child has sustained an unexplained injury, appropriate expert medical evidence is often essential in identifying whether that injury was accidental or non-accidental. Getting this right is crucial as it will invariably have a major impact on the decisions made for the child. In cases involving a parent with a mental health issue an expert report can be helpful not only in making the correct diagnosis but also identifying what, if any, treatment or support can be put in place to enable that parent to care for their child.

Changes to the way that expert evidence is used in care proceedings were introduced in the Family Procedure Rules in 2013, and subsequently in the Children and Family Act 2014. The test went from one of the court asking if an expert was reasonably required, to whether the expert was necessary to conclude the proceedings justly.

The impact of the changes has been considered in a report recently published by the Ministry of Justice. This largely focuses on timescales and quality of expert reports, rather than outcomes for children. The general consensus amongst family practitioners that the number of expert reports used in care proceedings had reduced, is borne out by the findings. In the sample taken for the report, the drop was 48%. The Judges who were interviewed for the report were generally positive about the reduction. They acknowledged the importance of robust medical evidence in unexplained injury cases. They were less enthusiastic for experts such as psychologists or independent social workers. A link was made between this reduction and an increased reliance on the evidence of social workers allocated to the family, the benefit being that they would have a great deal of experience of working with the family over a longer period. However, in reality, many social workers are already overstretched, dealing with heavy caseloads. Some social workers interviewed for the report expressed concerns that they had not had the level of training as independent experts whilst others social workers being influenced by the ‘corporate view’ of the local authority.

Participants raised concern that in failing to properly investigate the underlying issue that led to the care proceedings, any fix identified was short term. The study does not address this. In reality, it is probably too early to tell whether these concerns are justified.

The changes may be seen in the context of other reforms to the system including the twenty six week time limit for the completion of care cases. It was widely accepted that reform was needed to allow for the efficient management of care proceedings, thereby minimising delay for the child. However, there is certainly some unease amongst practitioners that these have gone too far and may have an adverse impact on outcomes for children. Time will tell.