Expert witness publicly criticised for conduct

A Family Court judge has made public a judgment in which he criticises the conduct of the expert witness.

Re X and Y (Delay: Professional Conduct of Expert) [2019] EWHC B9 (Fam)

Executive summary

In what is acknowledged to be an unusual step, a Family Court judge has made public a judgment in which he criticises the conduct of the expert witness instructed in the matter, who failed to provide reports on two children within court timetables or indeed at all. The judge found the witness’s conduct to be unacceptable and below the standards which were expected by the court.

Background

The expert was a highly experienced paediatrician who had regularly been instructed to prepare expert witness reports in the Family Court. In this case, she had been instructed to prepare reports on two children, referred to simply as X and Y, in respect of care proceedings instigated by a local authority.

The judgment, details the chronology of the instruction of the expert in respect of both X and Y, together with the subsequent dialogue – such as it was – between the expert and the solicitors instructed on behalf of the two children about production of the reports. The nub of the issue, however, was that by the time of the hearing which gave rise to this judgment, which was handed down on 11 March 2019, no reports on either child had been prepared, neither had either of them been examined by the expert, some six months post-instruction in the case of X and four months post-instruction in the case of Y. It also appeared to be the case that the expert had, by that time, spent little if any time reading the medical records that had been made available to her.

Having detailed the relevant timelines, the judge moved on to look at the relevant legal provisions, namely the duties of an expert as set out in Practice Direction 25B of the Family Procedure Rules 2010. The provisions make it abundantly clear that time is important and that an expert must advise when they are initially approached if they will be unable to complete the work required within the proposed court timescales.

The judge also referred to the guidance published in August 2018 by the Family Justice Council and the Royal College of Paediatrics and Child Health entitled ‘Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations’ and in particular paragraph 1.8 thereof which makes reference to section 32 of the Children Act 1989, namely that the timetable for public law applications is 26 weeks, which should only be extended if that is required in order to resolve the proceedings justly.

Conclusions and comment

The judge acknowledged that there would be occasions when, due to a change in circumstances after instruction, an expert would find themselves genuinely unable to complete a report within the prescribed timeframe. If that occurred however, it was the duty of the expert to advise their instructing solicitors accordingly who would work with the court on variation of the timetable. This, however, had not happened in this case and the judge concluded by noting that a draft of his judgment had been sent to the expert in advance of the hearing and that she had been invited to attend in order to make representations before judgment was handed down. The expert had not done so, instead handing in a letter which detailed the personal and family difficulties which she had faced in recent months, some of which had become apparent during dialogue with the solicitors acting for X and Y. She was, however, profusely apologetic for her failings in the case and indicated that she had decided not to accept any further instructions in Family Court cases.

It is the penultimate paragraph (number 53) of the judgment however which demonstrates the extent of the judge’s frustration with the expert in this case: “I am deeply concerned about the way [the expert] has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.”

The key lessons here for expert witnesses are painfully apparent: when you accept instructions, make sure that you can honour the court deadlines. If circumstances change, notify your instructing solicitors quickly. However, there must be lessons for solicitors and others involved in such cases too. Both sets of solicitors in this case had made numerous attempts – some successful and some not – to discuss the progress of her reports with the expert and she was fully aware of the court deadlines. It is incumbent on solicitors to ensure that their appointed experts are well aware of the court timetable and that they are provided with medical records in a timely fashion, as happened here. It is also vital that the court is kept updated of any difficulties and any necessary applications made in a timely fashion. Unfortunately, in this case, there was no alternative other than for the parties to agree (with the court’s approval) to the instruction of a new expert, some six months after the instruction of the first, which can only be to the detriment of the vulnerable children who were and remain the subject of the proceedings.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Morris Hill, Associate on 0151 242 7990 or morris.hill@weightmans.com, or Ken Slade, Associate on 0151 242 7953 or ken.slade@weightmans.com.

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