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?
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.
In May 2016 Professor Ireland was subject to disciplinary action concerning this report. She was 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. However, on June 8th 2016 ALL CHARGES DISMISSED
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.
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) . 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’.
For a further example of the serious consequences that arise when an expert goes beyond their remit see G, Re  EWFC B70 (13 June 2019) where the court agreed a complaint should be made to the expert’s regulatory body.
Some appointed experts in various fields such as counselling are not required to be members of any regulatory body and therefore careful thought should be given about whether or not they should be instructed.
This matter has been raised directly with the President at the end of 2019 and it is hoped that serious consideration will be giving to amending the Practice Direction so that any expert reporting on a child must be a member of an external regulatory body. For further discussion see this open letter to the President of the Family Division.
Guidance from The Transparency Project
The Transparency Project published a guidance note on the use of experts in family proceedings in September 2018 and this can be downloaded here.