New proposals on minimum standards for expert witnesses

The Ministry of Justice and the Family Justice Council have put forward new proposals for minimum standards for expert witnesses providing evidence in the family courts in proceedings relating to children in England and Wales.

The proposals are contained in a new consultation published yesterday in response to a recommendation made by the Family Justice Review that standards should be developed for expert witnesses in the family courts.

The consultation follows an amendment to the Family Procedure Rules in January which changed the test for admitting expert evidence from ‘reasonable' to ‘necessary'. The change has already had an effect in practice. In April when Ryder J held in the case of J (JG) v Legal Services Commission [2013] EWHC 804 (Admin) that a psychologist assessment should not be wholly paid by the publicly funded child and the parents would have to contribute to the cost of an expert's report.  

The Ministry of Justice now proposes that, in publicly funded family proceedings relating to children, solicitors may only instruct experts who meet the relevant standards. In both publicly and privately funded cases, the expectation is that parties will provide sufficient information to satisfy the court not only that an expert is needed, but also that the proposed expert meets the standards. The standards have been drawn up by the Family Justice Council, with input from the Ministry of Justice and the Welsh Government.

In the consultation's forward, Sir James Munby, President of the Family Division comments: "There are many types of case in family proceedings which benefit from high quality expert evidence. In some cases, those involving allegations of non-accidental injury for example, expert evidence is essential in order to reach a just determination. However, sometimes the parties seek to submit evidence which is of little value in helping the judge to reach the decisions which need to be made in the case. This has become something of a trend in recent years and, as the Family Justice Review highlighted, has been a major cause of delay in public law proceedings."

Subject to the outcome of consultation, the MoJ expect that the standards would come into effect later in 2013.  The consultation ends on 18 July 2013.