Commercial Awareness Update – W/C 31st March 2025

UNREGULATED EXPERTS IN FAMILY COURTS

In the third quarter of 2024, over 17,000 new cases were opened at the Family Court of England and Wales, all relating to the care and supervision of children. Due to the sensitive nature of such cases, the Court often takes expert advice into account when making decisions regarding the welfare of children.

Part 25 of the Family Court Procedure Rules (FPR) contains provisions relating to the use of experts in family cases. However, the Family Procedure Rule Committee (FPRC) has recently released a draft of amendments to Part 25 in response to public outcry about the lack of regulation.

Critical issues

An undercover recording obtained by the Bureau of Investigative Journalism (BIJ) and Tortoise Media revealed the deep-rooted bias of Melanie Gill, a Family Court specialist. Gill, an unregulated psychologist in the Family Court, has given evidence in almost 200 child welfare cases and was responsible for the removal of at least a dozen children from their mothers’ care.

The views Gill expressed in the recording ranged from disparaging the new generation of family court judges to criticising domestic violence charities for ‘validating’ women’s allegations of abuse. Specialising in parental alienation, Gill’s comments stand out, as she is one of many experts employed by the Family Court who are not registered with a regulator.

According to FPR 25.3, the expert assessor has an overriding duty to the Court, and the guidance issued by the FPRC imposes a duty of impartiality on all experts. An ongoing consultation conducted by the FPRC aims to impose requirements for appropriate skills and qualifications, as well as regulate experts giving evidence in family cases, further strengthening the FPR.

However, Olive Craig, legal adviser for the charity Rights of Women, criticised these reforms as not doing enough to combat the pushing of personal beliefs by experts.

Melanie Gill is but one of many unregulated experts raising questions about the fairness of practices in the Family Court.

Broader implications

Right to a fair trial: Experts in family cases are required to submit written reports and recommendations to family judges, which can significantly influence the outcome of a case. If judges act on biased recommendations, this could jeopardise the right to a fair trial under Article 6 of the European Convention on Human Rights.

Children’s welfare: If children are compelled to maintain a relationship with a parent who is not the best carer for them, based on a biased report by an unregulated expert, this could be detrimental to their health and welfare. The same is true if they are separated from primary caregivers, such as children separated from their mothers, or if there is a genuine risk of harm, such as in abusive households.

Effect on parents: Being separated from their children could have similarly harmful effects on parents. In cases with vulnerable parents with mental health conditions, separation could have adverse consequences for their safety.

Trust in the system: If families lose faith in the state’s ability to safeguard their and their loved ones’ best interests, they may be less inclined to speak out if they are in danger. Furthermore, it could set a negative trend among parties and practitioners alike, where they may feel compelled to ‘manipulate’ the system to secure victory.

Overburdened courts: The Family Courts are already one of the most backlogged court systems in the UK. It cannot afford to be bogged down in appeals due to erroneous advice given by biased experts. Parties may also feel a sense of helplessness due to the time it takes to secure a court date.

Access to justice: Many people who attend the family courts rely on pro bono and legal aid lawyers to argue their case, stretching resources thin to secure a favourable judgement. If proceedings are unnecessarily prolonged due to erroneous decisions, it could deter people from continuing their cases, allowing injustice to prevail.

How and why a law firm could or would be involved

The current framework should embolden family lawyers, particularly now as the consultation for the FPR’s amendment is still open, to advocate for reform of the system and ensure that the rules are fair to all parties.

As experts in the field, they may be best placed to offer insights during the consultation, as they work closely with families affected by the procedural hurdles of the Family Court. They may also be able to develop guidelines for the training of experts in legal procedure, ensuring that a robust system of checks and balances maintains impartiality in the system.

Fairer proceedings would benefit everyone; families can rest assured that the state has their and their loved ones’ best interests at heart, and family lawyers can deliver advice to their clients with more certainty and faith in the judicial system.

• By Natasha Saeed Ikramullah