The Extinction of the Expert Witness

29 Apr

There is an arrogance to the governments reforms of the family courts which will have a cause and effect far beyond the cost reductions the Government is striving for. There has been nearly 200 years of expert evidence available to the family courts from psychiatrists and psychologists. This evidence has, in the main, been valuable and useful to those that have to both advise and decide on family cases.

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Dodo

There is an arrogance to the governments reforms of the family courts which will have a cause and effect far beyond the cost reductions the Government is striving for. There has been nearly 200 years of expert evidence available to the family courts from psychiatrists and psychologists. This evidence has, in the main, been valuable and useful to those that have to both advise and decide on family cases. Not least that evidence has been valuable in determining the future wellbeing of both children and parents where, in its absence, there would be informed speculation or amateur psychology. Pragmatism can take a case and child’s future only so far; informed and properly counselled decisions are the thing that make our current system of family justice so good.

The recent changes in legal aid are reducing the number of expert witnesses available to family courts. Why would a psychiatrist or psychologist who does private work at a rate of £2/300 per hour do family and child care work for half that or less? The effect is simple they move out of the area of family and child care litigation all together.

The Government seems to believe that there is a new generation of judges and lawyers who are able to live without the assistance of expert witnesses. Indeed judges are asked to closely scrutinise whether an expert is “necessary”. How does this square with the areas of personal injury, clinical negligence and criminal law where the demand for experts carries on unabated? It simply doesn’t. The introduction of the PLO reduced the number of experts being used only to see the number of expert reports and opinions jump with the sad advent of Baby P. The need is still there and pragmatism cannot overcome it.

The lasting effect of the government’s changes is that seasoned and able experts will gradually fade away. They will be attracted away by other areas of work, private work or through eventual retirement. To think that a consultant can be plucked from his  or her outpatients clinic to give evidence in a hotly contested child care case with no experience or background in the court environment is setting many experts, and their opinions, up to fail. In time the experts we relied upon a year ago will not be there when there is another Baby P or another tragedy provoked surge in work. We are not a generation of lawyers or judges who can live without expert’s advice and counsel – the arrogance that suggests that we all are is profoundly misguided.

Dylan Morgan

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