Local authority social workers are crying out for specialist training to enable them to provide effective evidence to courts during family court proceedings following an increased reliance on them to fulfil this role, writes Clare Jerrom.
New rules introduced in the Children and Families Act following the Family Justice Review means that experts should only be used in family proceedings “where necessary” to resolve a case justly. As a result, local authority social workers are being expected to fulfil this role alongside heavy caseloads.
The MoJ report finds:
“Additional training may assist social workers”
A Ministry of Justice report into the effectiveness of the new rules found that use of experts in family court cases had reduced by almost 50 per cent since the rules came into effect. In 2012, an expert was commissioned in 201 cases but by September 2013, this was reduced to 97 cases representing a 48% drop in the number of cases following the introduction of the new Rules in January 2013.
As a result, local authority social workers were being relied upon far more heavily to carry out this type of work. While there were some advantages to this, such as their ongoing relationship with the family and familiarity with the case, concerns were raised by professionals in the report - including local authority social workers themselves - that they lacked the specialist training required for this role.
In some areas, the new rules had led to a marked change in social work practice, including the provision of additional training for social workers and through the creation of dedicated social work assessment teams.
However, not all social workers had received appropriate training, or were able to display the same level of skill or confidence as independently appointed experts. Some participants in the research felt this issue was exacerbated by heavy workloads of social workers and stretched resources of local authorities. In one example given, more than ten local authority social workers had been involved in an individual case due to a high staff turnover.
One of the conclusions of the report said: “Local authority social workers, as well as other professional groups, suggested that not all social workers have the same level of necessary skills or confidence as independently appointed experts to present evidence effectively to the court. Additional training may assist local authority social workers with this aspect of their role.
“Alongside this, when assessing the workload and resources of the local authority it is important to recognise that providing evidence to the court is an integral part of the social worker’s role,” it added.
Director of WillisPalmer, Mark Willis said: “There are some really good social workers working in local authorities but many are inexperienced in undertaking court work and giving evidence. Whilst you can’t teach experience you can help frontline workers learn new skills, particularly in assessment, understanding and evaluating risk and improved report writing. Without these skills social workers leave themselves vulnerable to cross-examination”.
A need for ISWs
Some judges agreed that local authority social workers may not have the time to complete assessments with their other workload demands and argued there was still a need for ISWs for this reason.
Participants in the research also noted that the conflicting and complex roles and relationships that local authority social workers have with families may also present challenges in providing evidence to the court. In addition, while a social worker’s professional obligations requires them to make their own independent views known in any assessments undertaken for the court, not all judges were confident in social workers’ abilities to ignore the ‘corporate view’ of their local authorities, which may bias expert evidence, the report added.
Participants also raised concerns over whether the use of local authority social workers was always appropriate, for example, that an assessment of attachment required psychological input and social workers were being asked to assess issues beyond their expertise under the new rules, although judges in the research disagreed with this point.
The rules introduced in the Children and Families Act followed the Family Justice Review in 2011 which concluded that there was a culture of ‘routine acceptance’ of the need for experts in family law cases and raised concerns that this was duplicating the work of the local authority, leading to delays and potentially compromising the welfare of children. As a result, a move towards a “more proportionate use of experts in family proceedings,” was introduced in the Act.
The government also developed standards to improve the quality of expert evidence by setting minimum criteria that an expert must meet in order to be appointed by the court.
Decline in the use of experts
The Ministry of Justice commissioned this research to review the system since the changes were initiated. The report ‘The use of experts in family law’ found that the new Family Procedure Rules had led to a decline in the instruction of experts, although there was less consensus across professions that this had led to more appropriate use of experts.
Experts were now more likely to be appointed for particularly complex cases, such as those that required medical evidence, or when a capacity, cognitive or forensic assessment on the parents was required by a psychologist.
Judges placed considerable emphasis on the importance of medical experts, such as radiologists, because they have specialist knowledge that is beyond that of the court. However, this was in contrast to ISWs and psychologists appointed to provide evidence relating to the welfare of the child as these experts were less frequently appointed since the introduction of the new Rules as the judiciary required more justification before agreeing them ‘necessary’.
The perceived decrease in the use of ‘welfare experts’ was believed to be linked to the more effective use of local authority social workers although many professional groups believed that this type of expert evidence was still necessary and could make a valuable contribution to a case.
ISWs were however only used in “unique circumstances” such as where there was a specific issue of trust between the local authority and the family, or if the local authority social worker did not have the capacity to complete assessments.
Mark Willis added: “ISWs play a vital role in many cases when local authority social workers simply don’t have the time to complete complex parenting or kinship assessments; this has been exacerbated by the 26 week limit on proceedings. I advocate a partnership model whereby local authorities can call on the services of an ISW – most of whom are highly experienced in court work – when their own staff are under pressure”.
Warning against further fee capping
However, the report referred to research carried out in 2012 which concluded that ISWs’ assessments added information, often in relation to new circumstances or developments within the case, rather than simply duplicating the evidence. The independence of ISWs working with complex cases or parents with entrenched difficulties with the local authority was cited as another benefit. The same research also found no evidence that the appointment of ISWs routinely caused delay through the late delivery of reports.
During the research, many participants expressed considerable frustration in relation to the reduction in fees for publicly funded expert work - an issue WillisPalmer previously campaigned vigorously against - and the timescales for completion, meaning that some experts were no longer willing to undertake this work. The report concluded that ongoing monitoring of the availability of experts could be considered to estimate the extent of this concern.
“These findings also highlight some potential risks of making any further reductions in the fees and hours available for publicly funded work,” the report warned.
Throughout the report, there was widespread acceptance that good quality expert reports help judges to make good decisions. The use of experts did not impact on the timeliness of the case – a conclusion of the Family Justice Review.
The research also looked at what made a good quality report for the courts and it was considered that a document of no more than 20 pages including only information specific and relevant to the case was required. Information should not be repeated from other documents and technical language, a large number of quotes or lengthy discussion of interviews and assessments with clients should be avoided, the report concluded.
Report: The use of experts in family law
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