Reports for family law courts on ‘best interests’ of children are inconsistent, unregulated

Expert reports for family law courts on the “best interests” of children are inconsistent, unregulated and “can become an additional site of conflict” in “already highly adversarial” disputes, a briefing note for acting Minister for Justice Simon Harris, has warned.

The note, written by department officials , says the “future use and application” of these reports, frequently written by unregulated experts, must be reviewed to ensure children’s needs are at the “centre” of the family law system.

Where a judge in a family law dispute requires an opinion on the best interests of a child or children they may order an expert report under either Section 47 of the Family Law Act 1995, or Section 32 of the Guardianship of Infants Act 1964. More recently, they have been extended to Section 27 of the Domestic Violence Act 2018.

These are conducted by court-appointed experts who could be clinical psychologists, forensic psychologists, social care workers, psychotherapists, or, family therapists. Many of these professions are not subject to regulatory oversight by Coru, the statutory regulatory body for health and social care professionals, and their reports cannot be appealed.

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They may make recommendations on which parent has custody of children, whether a parent should have access to their children and what form that access should take. The recommendations are generally accepted by the courts which in turn make orders affecting children’s lives.

Concerns have repeatedly been raised about the absence of regulation and oversight over these experts; the lack of transparency about their qualifications, and, the costs of the reports – which can run to several thousand euros and which must be borne by parents.

Women’s advocacy organisations – particularly those working with domestic violence survivors – have for decades warned about an apparent lack of expertise among some experts on the dynamics of abuse and coercive control, the impact on children, and how abusers may continue their abuse through the legal process.

A 2003 report from Women’s Aid, ‘Child custody and access in the context of domestic violence’ said on these reports: “It is essential that such reports are carried out by professionals trained in the dynamics of abuse”.

It noted its service users, “spoke of their children’s wishes not being adequately reflected” by experts.

The Family Justice Strategy, 2022-2025, published by Minister for Justice Helen McEntee before the start of her maternity leave last year, commits to a review of reports as part of an overhaul of the family justice system.

The note says the review will start this year, take between nine and 12 months and will examine the “commissioning and availability of expert reports” and “make recommendations regarding their future use and application”.

The note continues: “While it is not the role of an expert to determine any facts at dispute between the parties, the expert report process can become an additional site of conflict in what can already be a highly adversarial situation”.

A central aspect of the review will “be to ensure that stakeholders are consulted,” it adds.

“This is particularly relevant where an element of legal proceedings which are held in camera is being examined. There is also an absence of systemic research or data on these matters. Stakeholders will have practical, general knowledge and information relevant to the review. Their participation will also be central to generating buy-in for any emerging recommendations from the review.”