Family Law

The Rt Hon Lord Justice Wall

The need for expert evidence in a number of difficult cases under the Children Act is, in my view, incontrovertible. We all need high quality expert advice. In this context, 'we' includes not only the judiciary and the legal profession but, above all, it means the litigants and the children concerned. The work could not be more important or more crucial to the outcome of cases and to individual children's lives. But, and here is the paradox, we cannot accept the advice we receive uncritically. For obvious reasons, it would be an abnegation of our responsibilities to the children concerned, and to their parents, were we to do so. So we are saying to the experts in one breath:
'We need your advice: please come forward and give it to us' and in the next breath we are saying: 'When you give us your advice, we will not accept it uncritically. We will examine it. We may turn it inside out. We will want to know how you reached your opinion, and what factors you took into account. You may be an expert, but that does not mean you are automatically right, nor do you decide the case. And if you depart from the rules we have set, you will be liable to have the book thrown at you'.

The key to this paradox is not far to seek. It lies in the importance of the work. The work decides people's lives. Judges and magistrates in care cases frequently decide whether or not children are to be brought up by their natural parents. There is no more profound decision for children and their parents than whether or not the child in question is to be brought up within the natural family or is to be adopted by strangers. The state has set the boundaries in the threshold criteria for care orders in s 31 of the Children Act 1989, but has left its implementation, its working out, in the hands of the courts. That is the premise from which we all have to start. In turn, the courts have devised a careful structure for the presentation of expert evidence which requires great integrity from all concerned, particularly, of course, from the experts themselves. We have developed an extensive code of rules which we require experts to follow, both in their own interests and in the interests of the children whose futures they are helping to decide. Those rules have most recently been incorporated wholesale into the Practice Direction on Experts in Family Proceedings Relating to Children (the Practice Direction) which came into operation on 1 April 2008. It forms the background to this article and is available from the Practice Guidance section of Newswatch: www.familylaw.co.uk/newsline.aspx. Study it. If necessary, get it by heart. It will, I hope, govern our lives for some years to come.

For the full article, see April [2008] Family Law journal.

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