Allowing medical experts to give evidence in the family court remotely is one of several wide-ranging recommendations made by a judge-led working group to tackle a shortage that is contributing to harmful delays for children.
Sir Andrew McFarlane, president of the family division, discovered the shortage in experts during a nationwide tour of the family courts shortly after he assumed his post. In autumn 2018 he asked Mr Justice David Williams to convene a group of legal and health professionals to investigate and identify solutions.
The working group makes 22 recommendations in a 123-page report published last week.
Shortages were found in the availability of child and family psychiatrists and psychologists, paediatricians, radiologists and neuroradiologists, neurosurgeons, ophthalmologist, haematologists, neonatologists and geneticists.
The main impact of the shortages is delay. 'The detrimental impact of delay is enshrined in statute and in particular in relation to children under the age of three, where delay may have a direct detrimental impact upon the success of future placement, the working group were satisfied that the shortage of experts was likely in some cases to be harmful to children,' the report states.
Barriers include remuneration, court processes, lack of support and training, and perceived criticism by lawyers, judges and the press. But the working group 'reassuringly' found considerable interest expressed by the medical profession to do expert work.
The group says the Royal Colleges and professional bodies should create online resources to support expert witness work. Consideration should be given to amending employment contracts to allow for expert witness work.
Legal aid remuneration rates should, in some assessment categories, reflect the amount of work involved. Experts should receive only the necessary paperwork to consider.
Experts should only be required to give evidence where the court is satisfied an issue exists in relation to their report. Their hearing attendance time should be fixed. They should be allowed to attend remotely unless physical attendance is absolutely necessary. Experts should be treated appropriately during court hearings and within judgments.
Sir Andrew McFarlane said: ‘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.’