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Delays in judicial system attributed to shortage of independent social workers and other experts

A shortage of social work, medical and psychological professionals has been blamed for the delays in the judicial system, a report has suggested.

The Working Group on Medical Experts in the Family Courts was established in Autumn 2018 by the President of the Family Division, Sir Andrew McFarlane to identify the scale of the problem of medical expert witness shortages in the family courts, to look at the causes and to identify possible solutions.

However, a report published by The Working Group, revealed that there was a broader concern about shortages of a wide range of experts including medical but also allied health professionals and independent social workers.

The Working Group carried out a survey with 412 medical experts and 297 legal professionals.

“The results of the legal survey and consultation confirmed that difficulties in securing expert witnesses were experienced across the country and in a wide range of specialisms. It also emerged that the shortages were not confined to medical experts but to other allied professions in particular psychology and independent social workers,” said the report.

“The impact of the shortages was principally in creating delay although there were also concerns about the quality of some expert evidence which appeared likely to be linked to the shortages. The detrimental impact of delay is enshrined in statute and in particular in relation to children under the age of three, where delay may have a direct detrimental impact upon the success of future placement, the working group were satisfied that the shortage of experts was likely in some cases to be harmful to children,” it added.

The medical survey and consultation supported the conclusion that the pool of experts, in particular in some areas of specialism, was diminishing and a combination of factors was causing those who had previously reported to cease reporting and were acting as a disincentive to senior registrars or consultants considering taking on expert work in the future.

The main factors which were identified as barriers or disincentives were:

a. Remuneration linked
b. Court processes
c. Lack of support and training
d. Perceived criticism by lawyers, judiciary and press

The Legal Aid Agency prescribed rate was identified by lawyers as a significant barrier and other elements of concern about finances included delays in payment, the payment system (multiple invoices and having to submit invoices through solicitors and not direct to the Legal Aid Agency) and the tax/pension implications.

The Ministry of Justice and the Legal Services Commission decided the fees of independent social workers (ISWs) should be capped at £30 per hour outside of London and £33 in the capital from October 2010. The reduction in fees naturally proved to be a disincentive for independent social workers providing evidence in courts.

Chief Executive of WillisPalmer Mark Willis said: “Many good quality independent social workers don’t want to work for Legal Aid rates – it discourages the top people from doing that type of work. It is easy to see why expert social workers have drifted away from this kind of work when the majority of social workers – especially in London – can get work through an agency for higher rates.”

“As a company, we want to recruit and retain the best ISWs which is why we pay above legal aid rates and invest in their training as well as working to their strengths. I’m proud that we pay more as it enables us to retain our expertise,” added Mr Willis.

Claims were made during the Family Justice Review that independent social work expert reports delayed cases and added little or no value and resulted in the Review recommending in their interim report that the use of such reports should be restricted.

However, Dr Julia Brophy from the Department of Social Policy and Intervention at The Oxford University led research which found that ISW reports 'add considerable value in cases of high complexity', and in most cases these reports were delivered on time.

The research stated that ISW reports:

- Provide transparent, forensic, evidence-based assessments

- Support better welfare decision-making for children and families in care proceedings

- Provide detailed important information about the parents involved in care proceedings including their willingness and capacity to change, issues of current and likely future cooperation with health and social care agencies, whether they understand local authority concerns about their care of children, and whether they are capable of meeting their children’s needs, both now and in the future.

It also argues that most reports are submitted to the lead solicitor on time and any risk of delays could be reduced if the social workers were appointed as experts at an earlier stage.

Restricting access to independent social work experts will lead to 'poor decision-making', with more children being exposed to further risk of abuse or being removed unnecessarily from their families. Most reports were of high quality and many were 'excellent', says the report.

Principal Investigator Dr Julia Brophy said: “While strong views were expressed about the use of independent social work assessments, there was little hard evidence. Indeed, our research has found that these experts provide rigorously conducted and timely assessments which provide robust welfare evidence to assist the court in making life-changing decisions about the future care of children.”

The Working Group report added that:

- 58% of medics expressed concern about criticism in the press, by the judge or in cross examination.

- 38% of medics identified inflexibility in court timetabling (including scheduling witnesses) as an issue

- 37% cited the volume of material.

- Significantly 35% of medics identified lack of support from NHS Trusts.

The wide range of barriers identified means, the Working Group report said, that solutions will need to cover a wider range of areas than might initially have been thought and will require engagement at senior level with Department of Health and MoJ as well as the NHS at a senior level.

The Working Group makes 22 recommendations to reduce the shortages by removing disincentives and creating incentives. These include:

- Amending the Legal Aid Agency’s guidance in respect of the granting of prior authority and payment to experts to simplify the process to enable an expert to render one invoice.

- Seeking changes to the rates of remuneration for certain experts and the prescribed number of hours in respect of some categories of assessments to more properly reflect the amount of work involved.

- Action by the Royal Colleges/Professional bodies to create online resources to support expert witness work and to increase awareness of existing training in 11 the field provided by organisations such as the Academy of Experts and the Expert Witness Institute.

- Create greater training opportunities for medical professionals/allied health professionals including mini pupillages with judges, cross-disciplinary training courses with medical and legal professionals, and mentoring, peer review and feedback opportunities.

“We hope all the recommendations will be capable of being actioned to ensure expert witness work is attractive to health and other professionals and that experts are appropriately supported to provide this work,” said the Working Group report.

“Ultimately, a strengthened expert witness workforce will together with the legal and other professions deliver the best outcomes for children, young people and families,” the report concluded.

The President of the Family Division Working Group on Medical Experts in the Family Courts Final Report

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