In the last year the UK Family Courts have been criticised by British MPs and the governments of foreign countries such as Slovakia. The Norgrove Report described it as “a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works”. Now the Association for Improvements in the Maternity Services has joined in the chorus of complaints. The Witchfinder calls for change.

The Government has no money. Thanks to the reckless mismanagement of Gordon Brown and Tony Blair’s discredited government the incoming coalition have been forced to make cut after cut against services that many rely on. Curiously however there is one black pit of government waste that has escaped almost unscathed.

I refer of course to the Family Courts. The existence of such an institution in some form is a necessary evil. As a law student I am often asked for my help and sadly, about 75% of the time on looking at the case I would be driven to make the same decision as the social workers or the judge. The problem is that with the other 25% where the decision was wrong or arguable the system makes it hard to challenge social services or Court decisions. In nearly 100% of the cases it is too slow and vastly too expensive for public and parent alike.

This month the Association for Improvements in the Maternity Services weighs in. AIMS is a highly regarded organisation. It was founded in 1950, making it 53 years old and is made up of both professionals and parents. It is a serious organisation and its respected journal has a history of worthy articles with titles along the lines of ‘NICE guidelines for caesarean section’, ‘Consultation Conundrums’ and ‘Breastfeeding – Supporting Success’ to pick three examples. All very interesting but hardly the stuff of revolution.

The uncontroversial history of this organisation makes it all the more noteworthy that they have devoted the entirety of the journal’s most recent issue, (25 vol 1) to be published later this month to a full frontal broadside on Britain’s failing child protection system. The front cover this time discusses not really exciting previous topics like ‘meconium in the amniotic fluid’ but instead stridently denounces ‘Social Services Bullying’ and ‘Policing Pregnancy’.

Courageous Vicki Williams takes no prisoners.

The leading editorial by editor Vicki Williams says this – “[…]All the women’s stories in this Journal are of attempts by health professionals to bully them into compliance or seek revenge when they have made their own decisions[…]”

The statement (not to mention the identity of the person making it) says it all. Gone are the days of when serious critics like John Hemming MP and Camilla Cavendish of the Times could be dismissed as eccentric or exaggerating. What was a fringe issue is now moving into the mainstream with a vengeance. Heavy duty academics like Professor Jane Ireland have severely criticised the quality of expert witnesses in the family courts whilst the number of Court applications for care orders skyrockets in the wake of the Baby P scandal.

So what is the problem? To my mind having assisted and represented people in Court, there are three –

Expert Witnesses

The most important problem in the family Courts is the system for commissioning independent expert witnesses. In a criminal court the way it works is both sides are allowed to pay for their own experts on contested issues. Experts tend to side as far as possible with those paying them. Both sides cross-examine the witnesses and then the judge makes up his mind. This is important because the rules of evidence clearly state that in general an expert’s evidence outweighs that of a normal person.

In the Family Court and the Court of Protection parties are generally forced to instruct independent, joint, experts. The idea is to get one expert being honest instead of two experts taking the side of their paymasters. There are several problems. Because judges are often forced by the rules to go along with the experts it transfers power from an impartial judge to a hired gun. The difficulty is that there are strong financial incentives for experts to take the side of state institutions. The reason for this is that local authorities tend to deal with many family cases whereas families only deal hopefully with one a lifetime. Therefore to get repeat business the expert will want to get onto the local authority’s list.

In addition, there is the human factor that even an honest expert will deal with the local authority’s people regularly and tend to form positive professional relationships and sometimes friendships that may cause subconscious bias.

This phenomenon (the Repeat-Player Effect) is academically recognised, especially in United States law where there have been significant studies into similar problems in some types of consumer and employment arbitration. Some companies in the United States have tried to write mandatory arbitration clauses into consumer contracts and employment contracts so aggrieved customers must use an arbitrator selected by the company instead of suing. Academic papers include –

• Bingham, Lisa Blomgren, Employment Arbitration: The Repeat Player Effect (January 1, 1997). Employee Rights and Employment Policy Journal, Vol. 1, p. 189, 1997. Available at SSRN: http://ssrn.com/abstract=1324411
• Schwartz, David S., Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration (1997). Wisconsin Law Review, Vol. 1, p. 33, 1997; Univ. of Wisconsin Legal Studies Research Paper Archival Collection . Available at SSRN: http://ssrn.com/abstract=1499953
• Bingham, Lisa Blomgren, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards (November 30, 1997). McGeorge Law Review, Vol. 29, p. 223, 1998. Available at SSRN: http://ssrn.com/abstract=1827242
• Colvin, A. J. S. (2011). An empirical study of employment arbitration: Case outcomes and processes [Electronic version]. Retrieved 01/04/2013, from CornellUniversity, ILRSchool site: http://digitalcommons.ilr.cornell.edu/articles/577

Professor Jane Ireland’s recent report points out that many so-called psychological experts do not actually treat people, whether privately of in the NHS. They make their entire living out of writing reports for public law court cases. This can only enhance their need to develop a positive commercial relationship with the state bodies in the system.

Whilst there are some decent, ethical expert witnesses others milk the system – one charged £35,000 for a single report. I have known more public spirited psychiatrists, exceptionally well qualified, charge as little £200 for a private report.

Economics tells us that monopolistic bargaining power should be used to get a bad deal.

The state’s need for expert evidence in public law cases has created a market that exists solely to cater for that need. This is known as a monopsony – a reverse monopoly where the buyer has all the power. Basic economics (and I mean A-Level) tells us that in a situation like this the state can use its bargaining power to cut prices and get a better deal for the taxpayer.

Unequal Spending Power

To quote well known Birmingham solicitor Brendan Fleming, a staunch fighter for families, at present local authority legal departments are allowed to pay their lawyers in family proceedings three time the rate legal aid will pay the same lawyers to act for parents. How can this be possible? My degree is in economics. If the market equilibrium price is p, why is any organ of the state paying 3p?

In these days of legal aid cuts why is the state artificially inflating the price it pays for supply of services in a given market sector?

Variable Quality Practice

One of the difficulties of the Family Courts is that the secrecy, coupled with a lack of collection of statistics, has made it hard to properly assess performance. Anecdotally there are some very good judges. I have previously written articles praising Wall LJ and Mostyn J.

However, not all judges are so kindly or capable especially at district level, tolerating misconduct of all kinds from local authorities. For example, ordinary people in both Family and Court of Protection are often ambushed with unnecessarily late service of evidence or even emergency applications to put people (children or adults) in care – perhaps the night before or even the morning of a directions hearing. It is one thing for some litigant in person to get a document in late (although litigants I am assisting tend to get their stuff in on time) but why should a local authority lawyer paid 3 times the market equilibrium price get away with it?

Sometimes I feel that there can be a wrong-headedness in the judicial approach to criticism of the family division. The reasonable man or woman in the street firmly believes that some children, as in the Baby P case, should be taken away from their parents. However they also acknowledge as self evident the enormous powers that local authorities now wield and the great power imbalance.

Put simply, the public see the role of the judiciary as to be the bulwark against local authorities. The public doesn’t want judges to be cuddly with local authorities. Nearly everyone I have spoken to, even some council workers, would prefer something more along the lines of Judge Dredd. Unfortunately in some cases local authority litigation misconduct has almost become routine.

If solicitor Sue Grabbit gets her papers in late for a local authority then lay into her. Frighten them. Refer repeat offenders them to the Solicitors Regulation Authority. Even if the local authority has to succeed in the substantive application the Courts no longer have the time or money to tolerate deliberate or lazy flouting of directions orders by public authorities. If some poor litigant in person gets their papers in late – cut them some slack. I say some – if the judge has helped the litigant, explained what is necessary and they are being unhelpful their patience can and should run out.

Ryder Reforms

Recently, there have been some movements towards reform in the Family Justice System. Most importantly the High Court Judge, Ryder J, in charge of these reforms has worked with a variety of stakeholders to put in place robust case management information systems. He is to be commended.

The upshot of his work is that, for the first time we will have detailed figures with which to assess anecdotal claims of poor case management by local authorities as well as the inevitable impact of legal aid cuts. The reduction in independent witnesses is a step in the right direction.

Conclusion

The state is burning money. In a bizarre overturning of the laws of economics begun by New Labour and not yet halted by the coalition, the state is using its overwhelming bargaining power to pay three times over the odds whilst tolerating flagrant Article 6 breaches by local authorities.

The Witchfinder calls for three simple reforms –

1. Cap the hourly rate of local authority lawyers in all welfare proceedings whether concerned with children or vulnerable adults to the same rate as legal aid lawyers.
2. Similarly cap the costs of all expert witness reports
3. Allow both sides in civil proceedings their own expert witnesses. Generally the judges are pretty good – let them decide