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The value of independent Expert Witnesses in care proceedings

Peter Dale, John Gumbleton & Colin Luger, all independent social workers, explain the value that their profession brings when appearing as expert witnesses in care proceedings

The role of independent social workers in contested care proceedings is under threat from the joint proposal by the Ministry of Justice and the Legal Services Commission to restrict the fees charged by independent social work expert witnesses to the nominal Cafcass cost for children's guardians of £30 per hour [Consultation paper 19/09, published 20/8/09]. The hourly rates being proposed for independent social workers are less than one-third of those being mooted for some medical consultants, psychiatrists and psychologists. However, the reports of expert witness independent social workers and their role in experts' meetings have equivalent status and impact as such other experts. It is not unusual for courts to accept expert witness independent social work recommendations in preference to those of other such experts, given their specialised knowledge and experience of child protection cases.

This proposal on fee reductions has been made without any evaluation of the cost effectiveness of the expert witness independent social worker role in complex care proceedings. The disparity in rates between social work and other experts is unjustified and runs contrary to the Government's stated intention to raise the standing of the social work profession.  If implemented, it will render unviable the work of many highly experienced social workers who work independently. This proposal does not appear to have been clearly thought out by the MOJ/LSC, particularly with regard to the additional costs that will arise in an increased proportion of cases that experience significant delays, and the need for high cost contested final hearings in the absence of independent social work expert witness input.

Independent social workers provide a wide range of services across health and social care, but this paper concentrates on the expert witness role in complex (and usually contentious) care proceedings concerning child protection and child welfare. In such cases the local authority will have intervened in a family because of concerns about child protection and/or neglect, and the children involved are likely to have been placed in foster care on the basis of emergency protection orders and interim care orders. Parents often dispute the validity of the concerns of the local authority, and are often highly defensive and/or hostile to the local authority social worker and the local authority as a whole. Many cases are complicated by the parents having complex psychosocial histories including combinations of: being abused as children, adverse experiences themselves of the 'care' system', learning difficulties, volatile interpersonal relationships, and drink/drug problems. (However, a significant minority of parents who become involved in contested care proceedings manifest few or none of such problems.)

Disputes arise at both stages of care proceedings: at the 'finding of fact' hearing there are often challenges from parents with regard to whether medical evidence demonstrates that 'significant harm' has occured. At the 'welfare' stage crucial evidence is heard regarding the prospects for safe reunification of the child(ren); whether a specific kinship place is appropriate; or whether the child(ren) is to be subject to compulsory adoption by strangers. This latter outcome has been noted to be draconian: "What other area of forensic activity, since the abolition of the death penalty, empowers the state to intervene so drastically in the family life of the private individual?" [Coleridge, J. 2003 Comment: Another big bang. Family Law ].

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