Tag Archives: expert evidence

Who Guards the Guards? Expert witnesses and abuse of power

I am grateful for this post from one of our readers, who shares her own experiences of being assessed by an expert witness and her concerns about those in positions of authority who abuse their positions of trust. She raises some important issues regarding potential consequences that can flow from a relationship where the balance of power is weighted so heavily against the parent. 

I AM therefore I CAN (with apologies to Descartes)

I recently read a blog post on Twitter by @suesspiciousminds. It was about an expert, a clinical psychologist who had misrepresented comments made by a mother and a child in public law care proceedings. In his blog, @suessspiciousminds writes:
“I am genuinely shocked by this. It undermines a lot of credibility of expert witnesses”

Sadly, I am not at all shocked by this. I was up against an expert in his field, a psychiatrist who not only assessed mothers facing care proceedings but who was also an expert witness. For reasons known only to himself, he wanted to have my children put up for adoption.

It started off with an allegation. A false one. My then husband and I had a row over money. We had two children aged 5 and 7 weeks. I was the only one earning at the time and under huge strain to get back to work as I was self-employed and we faced eviction. My husband had been promising for a while that a client would pay him. I found out it was a lie and so we rowed.
It was an almighty row – not physical but a lot of shouting. As he stormed out of the house, I shouted at him not to bother coming back until there was money. An hour or so later, the police came knocking on my door. My initial thought was that my husband must have died in a car accident, such was the speed with which he drove off. I was wrong. The policemen wanted me to come to the station to answer some questions. They would not tell me anything else. My 7 week old baby was already in the car seat asleep as I had intended to drive to see the landlord and plead with him not to evict us.

We were put in an interview room where we stayed all day. Every so often a police officer would walk in the room and tell me that my husband was doing his statement, that when he had finished, they would ask for mine. I remember not being worried. I was desperate to speak to the landlord and saw this as a hurdle to a more pressing problem. My husband lied. It was what he did and they would see it for what it was. At the time I did not know what ‘it’ was.

I started to get anxious after 3pm as my older child was due to finish school. It was all taken care of, the police officer told me. Arrangements had been made for my child to be picked up but they would not tell me what those arrangements were or how much longer I would be. They just kept repeating the mantra: When my husband had finished with his statement, they would ask me for mine. By this point I was getting scared. Why was his statement taking so long? What was he saying? He lies, that’s what he does I kept repeating to myself. They’ll find out.

At maybe around 5 to 6 pm, a police officer came into the interview room that my baby and I had been kept in all day. He told me that my baby was going to be checked over at hospital. I stood up as I fully expected to go too but one of the officers put his hand on my chest and pushed me roughly into a chair.
“You’re not going anywhere” he said.

At this point I became really alarmed as I watched my 7 week old baby being taken away by an officer as the other one kept me firmly in the chair. I started crying, “I need to go with my baby, I’m breastfeeding” I was still sobbing when some moments later the door opened. Two people walked into the room, looked at me crying, went back out. I could hear whispering behind the door. When it did open, I was sectioned under the Mental Health Act. I still had no idea what my husband had said.

In the psychiatric ward, I asked for a solicitor and a breast pump. I was told I could ask for a solicitor at 9 am the next morning but was denied a breast pump. “You won’t be needing it where you’re going” the midwife said to me.

By 11am the following morning, I had a solicitor to appeal the detention, a visit from a social worker, a family solicitor and a breast pump. I then found out my husband had alleged I had thrown our 7 week old baby across the room, that I had a history of severe psychiatric illness including schizophrenia. It was actually my sister who was schizophrenic. I also found out that my children had been taken to a foster carer at a secret location as I was deemed too dangerous to know their whereabouts. I asked why the children weren’t with their father. The social worker told me that anyone who leaves a 7 week old baby with someone who has just thrown them across the room was just as guilty.

I was under 24 hour observation to spot signs of aggression and mental illness for 2 weeks, until the appeal hearing. The hearing took less than 10 minutes. They had acted on information giving to them by my husband and they had failed to verify. My 7 week old baby was healthy and well looked after and I did not have a mental illness nor showed any signs of aggression.

End of story? Not quite.

I was told that proceedings had started and it would take about a year before the children could come home to me. I would need to be assessed with the children. The Guardian insisted that I be sent to an extremely expensive residential assessment centre which was run by a highly qualified psychiatrist who was also an expert witness to the court. The children and I would be there for a month.

The psychiatrist lived next to the assessment centre but, apart from watching him jogging, or seeing him when he came into the kitchen to use the washing machine, we hardly ever saw him. It was not until about the 3rd day that I had a ‘session’ with him. I walked into his office and the first thing he said was “You don’t like me, do you?”

I was thrown by this comment and all I could say was; “I don’t think it’s a question of whether I like you or not, I think it’s a question of whether we can work together.” Apparently it was not the answer he was looking for. Observations were done by the (largely) unqualified staff and he would then look over their notes and make his assessments from those notes and the weekly sessions he had with the residents. In my next session he spent the whole time telling me that my husband had not lied and that I had made it all up, refusing to believe me but then ending the session with “If it’s too good to be true it’s not true”. I felt as though he was trying to catch me out, as though there were answers he wanted to hear that I was not giving him. I could only answer as I felt but it felt wrong.

To pass the time, I baked bread and would bake a loaf daily for all the residents to share. One morning a staff member told me that he had cut the loaf in half and taken the half with him. That was the day he chose to keep coming in the kitchen – something he never did. He was obviously expecting a reaction from me so I told him that I had made the bread for the residents and that if he wanted some he should have asked as it meant there wasn’t enough to go round. Perhaps, not surprisingly, that did not go down well. I failed ‘the test’ again when he came in from his customary jog and put his running shorts in the washing machine. He had left his phone and car keys in the pocket and I burst out laughing.

I later found out that it was all deliberate (perhaps not the car keys/phone). He liked to press the residents’ buttons to see how they would react under pressure. This would include giving us various tasks. Asking us to do things when the children were hungry or upset or tired. He would probably justify it as making sure the mothers could cope with day to day life. I got a feeling that he had more than a sadistic streak to him.

The Court hearing was heart stopping. This ‘expert’ psychiatrist diagnosed me as of below average intelligence and it was his recommendation that my children would be best placed if they were put up for adoption. The Guardian agreed with him. The Local Authority did not.
On the day, of the hearing, the Guardian, Local Authority, and the lawyers had a meeting which excluded my solicitor. I remember my barrister, who had caught a train from London so arrived after everyone else, walking straight into their meeting saying something about not having a meeting without him.

I believe that in that meeting, the Guardian was trying to convince the Local Authority that my children should be put up for adoption. In Court, the Local Authority did not agree with the Guardian and the ‘expert’. The Judge agreed with the Local Authority.

I came so close to losing my children permanently based on I don’t know what reasoning. What I do know is that there are people in positions of power, who are trusted by the Court, in their capacity as experts in their field, who exploit and abuse that power. In the case of this psychiatrist, children were removed from mothers he diagnosed as mentally ill, as unable to parent. How many of these mothers were, in fact, capable?

Bullies and abusers use their position of power to intimidate those who, often, are unable to fight for themselves. I was incredibly lucky that a social worker was able to stand up to not just the Guardian but an expert’s opinion. But where this is not the case, who is there to keep us safe from the experts?

Fact Finding in Care Proceedings

What is meant by a ‘fact finding hearing’ ? What does the Judge have to do? What needs to be proved? This post appears at the Children In Law website, curated by barrister Jacqui Gilliat. This summary of the law relating to fact finding hearings was written DJ Simmonds at the Central Family Court in London, in collaboration with HHJ Hess. 

 

The law relevant to fact finding hearings in care proceedings can be summarised as follows.

I should have in the forefront of my mind the provisions of Articles 6 and 8 of the ECHR. In particular it is important that I ensure that any person who might be affected adversely by my judgment, for example by being in the pool of possible perpetrators, has had the opportunity to be represented within the proceedings and been able to put their case.

The fact finding decisions need to be made in the context of the provisions of Section 31(2) Children Act 1989, the “threshold criteria”. This section reads:-

A court may only make a care order or supervision order if it is satisfied –

that the child concerned is suffering, or is likely to suffer, significant harm; and that the harm, or likelihood of harm, is attributable to …the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.

 Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”.

The relevant date for assessing whether the child “is suffering” harm is the date of the care order application or, if temporary protective arrangements have been continuously in place from an earlier date, the date when the arrangements were initiated. In cases where the “is suffering” limb of the test is engaged (as in the present case) it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did, the court must be satisfied that the child was actually harmed: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.

Burden and Standard of Proof

The burden of proof lies on the party who makes the allegation, in this case the local authority.

The standard of proof is the balance of probabilities: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.

Binary system – it either happened or it did not happen

If a fact is to be proved the law operates a binary system. It is open to the Court to find on the balance of probabilities either that an allegation is true or that an allegation is false. As Lord Hoffman observed in Re B (supra) : “if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one”.

 

Evidence not speculation

Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”. The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof”.

One part of the assessment is an analysis of the credibility and reliability of the witnesses and potential perpetrators. I need to remind myself, though, of the important warning to be derived from R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert Evidence

Where, as here, an important part of the evidence is provided by expert witnesses I need to remind myself of two propositions in weighing the importance of that evidence. First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is ultimately the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370. Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts and that scientific research may one day throw light into corners that are at present dark. There may be cases where criticism of even a clear expert opinion is more than fanciful. The case of LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) is a useful cautionary tale in this respect. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

 

When a child has suffered injury

In structuring my analysis in this fact finding hearing I remind myself of the Supreme Court decision in Re S-B (children) (non-accidental injury) [2009] UKSC 17. This decision informs the structure of the analysis, broadly encouraging the route set out below.

 If I am satisfied that the child sustained injuries I must first consider whether they were caused non-accidentally. In this context I remind myself of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-

 I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

Secondly, I must next consider whether I can identify the perpetrator of the injuries. A Court should not strain to identify the perpetrator, but to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.

Thirdly, if I cannot identify a perpetrator or perpetrators, I should attempt to identify the pool of possible perpetrators. In this context I remind myself of the decisions in Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849. The identification of a pool of possible perpetrators is sometimes necessary in order to fulfil the ‘attributability’ criterion – for example if the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. It is also generally desirable to identify a pool of perpetrators because it will help to identify the real risks to the child and the steps needed to protect him, it will help the professionals in working with the family and it will be of value to the child in the long run. In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt.

Fourthly, if I identify a pool of possible perpetrators which, ex hypothesi, will include more than one person, I should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.

 

Expert Pyschological Reports

Why do the courts need psychological reports?

A tension exists in court proceedings. It is the Judge who hears the evidence and makes the decision. But some matters – such as physical or mental ill health – may be outside the Judge’s understanding. In recent years, instruction of psychiatrists and/or psychologists had become almost the default position in care proceedings, in an attempt to assist the court to understand why a parent was struggling to provide good enough parenting.

However, leading up the Children and Families Act 2014 (see below), there were serious concerns about not only the ubiquity of such reports (used in over 90% of cases), but their reliability and ultimate usefulness in determining care proceedings.

For comment on the widespread use of expert reports in 2010 see this paper by Dr Judith Masson of Bristol University: The use of experts in child care proceedings in England and Wales, benefits, costs and controls. 

Two of the key problems of care proceedings – the time they take and the amount they cost have strong links to the substantial use of experts. Delay has been a major problem in care proceedings since before the Children Act 1989 (Murch et al 1987), at least for the cases heard in the higher courts. It was hoped when the Act was implemented that cases would be completed in 12 weeks but this was never realized. Throughout the 1990s the length of cases increased. Three separate reviews in 1995, 2001 and 2004 failed to do more than describe the problem. The use of experts was identified as a major cause of delay through difficulties identifying suitable experts, chosen experts being unable to take on cases because of their workload or not meeting the court deadline for completing the work and requests for reports being made late in the proceedings. A key factor in this was a shortage of experts but further examination of this with medical experts established that there was a very large pool of potential experts who had never been asked to take on this work (CMO 2006). It has also been suggested by social work academics that the problem is “the pursuit of an unattainable level of certainty‟ through repeated assessments of the parents (in)ability to care (Beckett and McKeigue 2003).

David Bedingfield considered the issue of expert evidence in an article for Family Law Week in 2013:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent to judge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

Judges, and Parliament, have been seeking an answer to that question since at least the late 18th century. One of the responses always canvassed is this: cede the decision to a specialist panel of experts. Courts, however, have been jealous of their jurisdiction to decide disputes, and (it is submitted) for good reason: courts in the United Kingdom have deservedly developed a reputation for fairness and for careful consideration of the competing interests involved in any dispute. Courts have also now developed a considerable body of law, giving to litigants and their advisors at least some reasonable certainty that like cases will be treated alike.

This move to restrict expert evidence must therefore be understood as part of a century-long struggle by the judiciary to maintain its jurisdiction, and to deal with the ever-increasing complexity presented by disputes involving scientific or medical evidence.

The report of Professor Ireland – poor quality of expert reports?

EDIT May 26th 2016

Professor Ireland is now the subject of disciplinary action  concerning this research and therefore caution is advised when considering it. More information will be posted about this as it becomes available. She is accused of reaching conclusions that were not justified by the data and threatening fellow psychologists with legal action if they did not withdraw complaints about her research.

The Law Gazette reports:

An eight-point charge sheet includes allegations that the headline conclusion that ‘one-fifth of experts are not qualified’ was not supported by the data presented in the report; and that Ireland ‘presented unsubstantial conclusions from the report for publication in a national newspaper on 13 March 2012 and on a national television news programme’.

It is also alleged that Ireland failed to declare a conflict of interest and threatened her fellow psychologists with legal action if they did not withdraw complaints.

She is also alleged to have used 126 expert reports from 180 court bundles without seeking the consent of authors or subjects, and allegedly did not properly redact the reports used – meaning those producing the research had access to sensitive and personal information about vulnerable adults and children.

The final allegation is that these charges constitute misconduct and/or a lack of competence, impairing her fitness to practise.

EDIT ENDS

EDIT JUNE 8th – ALL CHARGES DISMISSED 

Evaluating Expert Witness Psychological Reports: Exploring Quality’ was a study by Professor Ireland in 2012 and funded partly by the Family Justice Council. However, they later distanced themselves from the conclusions of this study over concerns about its methodology. See this post on Pink Tape.

The report examined 126 psychological reports provided in family proceedings. The results were disturbing – over two thirds of the reports were rated as ‘poor’ or ‘very poor’.

There was also evidence that unqualified experts being instructed to provide psychological reports.  One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.

Only around one tenth of instructed experts worked in external clinical settings; most therefore had become ‘professional expert witnesses’  which has implications for the expert’s ability to keep up to date with changing practice in his/her field.

Professor Ireland recognised the limitations of this study, which is of a preliminary nature only, but the findings do raise questions about the quality of such expert reports.

Particular areas of concern were noted:

  • An over-reliance on psychometrics, use of defunct assessments, and using assessments with no validity;
  • The under-use of recognised methods to assess risk in cases involving domestic violence, general violence and sexual violence;
  • a proportion of experts commenting on mental health and yet having no indicated background in that area.

These are significant concerns and merit further research using a larger sample of reports.
The Family Justice Council reported in 2011 (having seen Professor Ireland’s draft report)

[The report] points to serious issues both with the quality of reports and the qualifications of those carrying them out. We are not surprised in view of the concerns we heard expressed throughout our work about the quality of reports generally. We recommend that studies of the expert witness reports supplied by various professions be commissioned by the Interim Board, subsequently the Family Justice Service.

Agreed quality standards for experts in the family courts are clearly needed and we recommend that they should be developed. The FJS should lead this work. Meeting the standards could be a requirement for payments to be approved by the LSC. Criteria could include adherence to set timescales, membership of appropriate professional bodies and completion of specified court focused training, peer review and continuing professional development.

How do the courts now approach the use of expert psychological reports?

The Children and Families Act 2014 has attempted to put clear limitations on the use of expert evidence.

Under section 13(6) the court will now only give permission for an expert to be instructed where it is ‘necessary’ in order to resolve the proceedings justly.

Under section 13(7), in order to decide whether or not such an instruction is ‘necessary’ the court will have particular regard to:

  • any impact which giving permission would be likely to have on the welfare of the children concerned,
  • the issues to which the expert evidence would relate,
  • the questions which the court would require the expert to answer,
  • what other expert evidence is available (whether obtained before or after the start of proceedings),
  • whether evidence could be given by another person on the matters on which the expert would give evidence,
  • the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,
  • the cost of the expert evidence, and
  • any matters prescribed by Family Procedure Rules.

There is now a new Practice Direction 25B which sets out the duties of an expert, how the expert’s report should be set out and what arrangements must be made to bring the expert to court.  With regard to standards expected of experts, the expert must:

  • have knowledge appropriate to the court case,
  • have been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
  • is either regulated or accredited to a registered body where this is appropriate,
  • have relevant qualifications and has received appropriate training, and
  • comply with safeguarding requirements.

Paragraph 9(1) of the Practice Direction sets out onerous requirements for the content of the expert’s report. It must:

  • give details of the expert’s qualifications and experience;
  • include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;
  • state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;
  • give details of the qualifications of any person who carried out the test, examination or interview;
  • answer the questions about which the expert is to give an opinion and which relate to the issues in the case.

When compiling the report, the expert must

  • take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
  • describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
  • indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;

If there is a range of opinion on any question to be answered by the expert, he or she must:

  • summarise the range of opinion;
  • identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
  • give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court.

Importance of the procedural rules on instructing experts.

For a case where it all went horribly wrong, see Re C (A Child) [2015]. The procedural requirements had not been followed and the Court of Appeal noted:

  • Both the Magistrates and the Circuit Judge had ignored the statutory scheme that determines how applications for expert instructions should be made, set out in section 13 of the Children and Families Act 2014, part 12 FPR 2010, part 25 FPR 2010 and PD 25B (paras 24 – 29; para 33).
  • The Magistrates’ reasons were inadequate (para 22).
  • The manner in which the burden had been placed on the Father to demonstrate that a report was unnecessary was ‘simply wrong’ and the entire procedure had been unfair to him (para 13; para 34).
  • There is guidance in existence as to how litigants in person can be afforded access to justice which had not been followed in this case (paras 14 – 16).
  • It was also wrong for the order made to have been worded so as to direct the Father to undertake a medical procedure; this violated an ‘elementary principle’ and was ‘unlawful’. It was also wrong to direct costs to be shared, particularly where those costs were an unknown quantity (paras 35 – 37; para 50).
  • The Circuit Judge’s approach to the appeal of the Magistrate’s decision, that this was a case management decision which was an exercise of discretion which should not be interfered with, was a ‘superficial approach to an important question of procedural justice’.