Expert Opinions In Family Courts Must Be Open To Objective Scrutiny

- 28 September 2009;The Times

Analysis: By Sarah Harman

After decades of obsessive secrecy, supposedly to protect the interests of vulnerable children, the family courts will be required to open their doors a few centimetres wider as the Minister of Justice builds on rules introduced earlier this year that allowed some degree of media access but limited rights for them to report their observations.

More steps towards transparency potentially will mean witnesses, experts and childcare practitioners being identified and wider access being given to court documents.

Miscarriages of justice that undoubtedly occur, and can lead either to a child losing his family and ending up in long-term care or leave a child at risk with abusive parents, usually arise from courts relying on dubious expert evidence. The science that medical experts rely on when trying to decide between accident or wilful abuse where a child has a serious head injury or an unexplained fracture is not based on sound evidence. But the courts often treat it as though it is.

Experts who claim to be able to advise the courts with certainty in such difficult situations need to be named, and the opinions in their reports open to objective scrutiny. There needs to be dissemination of information and far more research to ensure that the courts are not misled. Access to court reports and naming of experts will help this process.

Family courts opened to media scrutiny The argument against is that experts who currently do court work will be reluctant to continue as they fear being targeted by aggrieved parents if their reports are publicly available and if they are identified. It is said that the pool of expertise available to the court will then diminish.

In fact research by the Chief Medical Officer suggests that the main reason potential experts give for not doing court work is that they have not been asked. It is worrying that the courts rely on such a small group of experts and that the net is not cast wider.

More prosaically, we should know which experts give evidence and what is in their reports because the cost to the public purse, paid out of the legal aid fund, is so high. Many who work in the family courts believe that too many experts are called to give evidence, when child protection practitioners ought to be able to assist the court, such as whether a family is functioning in a safe way. Overuse of experts in family cases has caused costs to spiral and, even more important, has resulted in unacceptable delays before a child’s future is determined.

There is still huge opposition throughout the legal and social work professions to more transparency in the family courts, most of which is due to self-interest. But there are many good reasons for the minister to move ahead with his reforms as long as they are implemented slowly and carefully, ensuring that the anonymity of children and families is not jeopardised in the process.