In July 2006 the Department for Constitutional Affairs issued a consultation paper entitled “Confidence and confidentiality – Improving transparency and privacy in family courts.” The consultation closed on the 30th October 2006. Ministers are still considering how best to proceed.

In October 2006 the Chief Medical Officer, Sir Liam Donaldson, produced a report called “Bearing Good Witness - proposals for reforming the delivery of medical expert evidence in family law cases.” The public consultation ran until 28 February 2007.

Confidentiality in the family courts – anonymity for experts?

“Confidence and confidentiality” presumes that there is widespread dissatisfaction with the family courts due to lack of transparency – most hearings are in private with the public and press excluded. The consultation paper (still available at www.dca.gov.uk) shows just how confusing and inconsistent the current legal position is as it depends on the type of family hearing and the level of court.

The consultation document asks if the media should be allowed to attend proceedings as of right with the court having power to exclude them where appropriate. (Adoption would be treated as a special case: there would be transparency up until the placement order but after that proceedings would be private.)

The consultation paper sets out the experience in New Zealand where the law was changed on July 1st 2005. In New Zealand, children’s cases may be attended by accredited members of the media and the courts may permit attendance by members of the public with a legitimate interest. Anyone is allowed to publish reports of children’s proceedings provided all identifying details are removed.

As for some of the responses, The Law Society (October 2006) favours the position that family hearings “should be in private unless the court orders otherwise.” The Office of the Children’s Commissioner is “not convinced that the family courts should be opened up to the press”. However Liberty, whilst recognising that it is a difficult balance, thinks there should be a presumption that the press will be entitled to attend.

The Royal College of Paediatrics and Child Health response shows that identification of experts is as controversial as that of identification of the parties. Paediatricians have concerns about inaccurate reporting in the press and being “pursued by parent groups”. They ask that if the proposal goes ahead, the DCA works closely with them to “offset any negative impact on willingness of paediatricians to undertake this essential area of work”.

The judgment of Munby J in Norfolk County Council v Webster [2006] EWHC 2733 (Fam) contains a fascinating and detailed account of the law of confidentiality in family proceedings. It includes the judge’s comment that: “The press and other media play a vital role in ensuring the proper functioning of our democracy, as also in furthering the rule of law and the administration of justice. The role of the court reporter is that of public watchdog over the administration of justice.”

In this case the parents of a five month old boy, the subject of care proceedings, sought to have media restrictions lifted so that the care hearings could be attended by the press. The reason was that they had had three older children removed in previous care proceedings and maintained that they had been the victims of a miscarriage of justice. Munby J, at pains to point out that he was not in any way commenting on the merits of the parents’ claim of a miscarriage of justice, granted the parents’ application for press restrictions to be relaxed in relation the youngest child Brandon, though not in relation to the older children identified only as A, B and C.

In a subsequent decision dealing with a number of related press issues (see Norfolk County Council v Webster [2006] EWHC 2898 (Fam), Munby J, prevented the identification of the expert in the ongoing care proceedings for the time being.

Previously in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) the same judge prevented identification of experts and commented, “There may come a time when the balance requires to be struck differently”. Looking at both sides of the argument he said, “In the first case, there might be a powerful public interest in the discredited expert being identified; in the other case there might be a powerful public interest in the public vindication of an expert who had been unjustifiably and unjustly attacked”.

Clearly when the court is exercising its decision it is done so on a case by case basis. An expert cannot be guaranteed anonymity in child protection cases and it may well be a contributing factor to the shortage of medical experts.

Attempting to address the shortage

In “Bearing Good Witness” the CMO states that the government requested the report as a result of some very high profile cases (namely R v Clark, R v Patel and R v Cannings) that “called into question the quality of medical expert witnesses in certain types of case.” As he investigated, the CMO realised that it was “more a question of supply than of quality” and he made proposals to address both.

It is not a new problem; even before the consultation Sir Alan Craft, President of the Royal College of Paediatrics and Child Health, wrote to The Times and his letter was published on 2 February 2004, “Many medical posts in the field of child protection remain unfilled and paediatricians are, not surprisingly, increasingly reluctant to act as expert witnesses in these complex cases.” He went on, "Unless confidence is restored, the recent crisis in child protection work will worsen. The present state of affairs cannot be allowed to continue”.

Experts to work in NHS Teams

One of the most significant of the CMO’s proposals is that experts work in local teams in the NHS rather than as now, doing expert witness work in private as individuals. This proposal is not without potential problems.

Local teams who know local resources would be an advantage particularly when focusing on care planning. However checks and balances will need to be in place to ensure that experts do not become less independently minded as a result. There is a danger of opinion by consensus with for example the views of one forceful or senior member carrying more weight than they ought to.

The proposals suggest a team approach to the proffering of an opinion to court. But lawyers and judges will not be satisfied with anything other than individual accountability when it comes to giving evidence. The team approach can’t avoid the need for the person who expressed the opinion to appear at court and be cross-examined if that opinion is disputed.

It is also vital that the local team is not the only team that can be used. There always exists the possibility that the child or family should be seen by an expert from outside the local team. This could be for any number of reasons: conflict of interest, an appearance of bias, lack of expertise or unacceptable delay. It must be possible for the party/ies to go to another resource where the court sanctions this.

Whilst we await the government response to “Bearing Good Witness” it is interesting that the chambers of 1 Garden Court have already been piloting a scheme aimed at extending the pool of experts available to assist courts in family cases. Devised by a group of lawyers and child psychiatrists, it was launched on 1st October 2006 and was endorsed by the Family Justice Council and Royal College of Psychiatrists. The project emphasises the need for excellent training and mentoring and support for those entering this field of work. Further details of the scheme can be found at the chambers web site www.1gc.com

Education and Training required

Lord Justice Thorpe, Deputy Chair of the Family Justice Council, introducing the 1 Garden Court initiative noted “For almost 10 years now the Interdisciplinary community has struggled to secure the future both by alerting ministers and officials to the vulnerability of the [expert witness] service and by encouraging education and training initiatives to encourage young clinicians to enter the field.”

“Bearing Good Witness” seeks to improve the quality and supply of medical experts in family cases. However “Confidence and confidentiality” calls for the family courts, and therefore expert opinions, to be opened up to greater press scrutiny.

The medical and the legal profession alike urgently await Ministers’ carefully balanced responses to both the CMO and the confidentiality consultations. Let’s hope the results of each don’t cancel each other out.

Re B and the Norfolk County Council v Webster judgments can be found in full at http://www.bailii.org/ew/cases/EWHC/Fam

Penny Cooper is an Associate Dean at The City Law School and teaches on The City University Expert Witness Certificate. She is the author of Reporting to Court under The Children Act 1989 (TSO, 2006) and co-author of Experts in the Civil Courts (OUP, 2006). She is currently undertaking the largest ever expert witnesses training survey. If you would like to take part please contact her at p.cooper@city.ac.uk