Expert Evidence, Judicial Reasoning, and the Family Courts Information Pilot
| Author | Tony Ward |
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00598.x |
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 4, DECEMBER 2012
ISSN: 0263-323X, pp. 515±40
Expert Evidence, Judicial Reasoning, and the Family Courts
Information Pilot
Tony Ward*
The Family Courts Information Pilot took a modest step towards open
justice in Children Act cases by publishing 161 judgments of the
County Courts and Family Proceedings Courts. Combining socio-legal
and philosophical analysis on lines inspired by the work of Habermas,
this article examines the epistemology of expert testimony implicit in
the judgments. What emerges is a form of reasoning based on `infer-
ence to the best explanation': judges seek to show that the best
explanation for experts saying what they do is that they have good
reasons for their opinions. While this approach is not blindly deferen-
tial, it has serious limitations in cases where the only experts are local
authority social workers and the guardian, and an awareness of these
limitations is one reason for the courts' willingness to allow other
experts to be instructed. The article also criticizes the analysis of the
courts' use of experts by the recent Family Justice Review.
`FORENSIC SUNLIGHT'
In Av. Ward,
1
Munby LJ declined to preserve the anonymity of experts in a
child protection case, pointing to the `drastic' nature of the order the court
had been asked to make, and to the `decreasing confidence in some quarters
in the family justice system', which he attributed largely to `ignorance,
misunderstanding, misrepresentation or worse'. Borrowing a metaphor from
Louis Brandeis, he observed that `the remedy for such ills is not the enforced
silence of judicially conferred anonymity but rather the disinfectant power of
515
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Law School, University of Hull, Hull HU6 7RX, England
a.ward@hull.ac.uk
I am grateful for the detailed comments of the five anonymous reviewers, and of Rob
Clucas, Julie Doughty, and Martin Parry.
1Av. Ward [2010] 1 FLR 1497.
exposure to forensic sunlight.'
2
That seems as good a metaphor as any for
the idea that legal decisions that depend on the advice of experts must, in
order to be legitimate, be publicly accessible in two senses: the decision and
the reasons for it must be publicly promulgated (subject to legitimate
interests in privacy), and the reasoning must be such as the public at large
can understand and accept.
In order to explore how the family courts go about justifying their reliance
on experts, and their occasional departures from expert advice, this article
draws both on the epistemology of testimony, of a kind usually discussed in
more abstract terms by analytical philosophers,
3
and on a socio-legal
interpretation of judicial reasoning in its institutional context. In bringing
these approaches together, it draws on the work of Ju
Èrgen Habermas, who
has long combined a `rational reconstruction'
4
of social practices of given
reasons ± culminating in his major work on legal and constitutional thought
5
± with a sociological analysis of the structures within which reasoning takes
place and by which it is constrained and distorted, including, as it happens,
child welfare proceedings in the German courts.
6
While the details of the
analysis are not exclusively Habermasian, it shares his normative orientation
towards a form of practical rationality that gives as full and equal a voice as
possible to all those affected by a decision.
The use of expert evidence in the family courts is especially topical given
the recent publication of the Family Justice Review,
7
which criticizes courts
for hearing too much expert evidence about children. The government
intends to introduce a Families and Children Bill that will implement some
of the Review's key recommendations aimed at reducing delay in taking
children into care, including a six-month time limit on care proceedings,
8
and a provision that `the courts should only give permission for expert
evidence to be commissioned where it is necessary to resolve the case and
the information is not already available through other sources.'
9
516
2 id., [133]; L. Bra ndeis, Oth er People' s Money (191 4) ch. 5, at ttp://
www.law.louisville.edu/library/collections/brandeis/node/196>.
3 For example, J. Lackey and E. Sosa (eds.), The Epistemology of Testimony (2006).
4 J. Habermas, Communication and the Evolution of Society (1979) 8±14; J.
Habermas, Between Fac ts and Norms (1996) 82; K. Baynes, `Habermas 's
Interpretive Social Science' in Hermeneutics and Critical Theory in Ethics and
Politics, ed. M. Kelly (1992).
5 Habermas, id. (1996).
6 J. Habermas, The Theory of Communicative Action, Vol. 2 (1987) 368±70.
7 D. Norgrove et al., Family Justice Review: Final Report (2011) (`Review'), at
review-final-report.pdf>.
8 See 00208753/childrens-bill-
family-support>.
9The Government's Response to the Family Justice Review (2012; Cm. 8273) para.
42.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
To continue reading
Request your trial