Family law experts advising the Courts have been put under the spotlight in a new study from the University College London. Two serious situations clearly require urgent government intervention and reforms to family law. And although it’s discussing the situation in England and Wales, it might as well be talking about Australia too.
We take a look at what this latest study reveals about family law experts, and where the debate is at over two controversial subjects: parental alienation and family court experts. Amid fresh calls for UK family law experts to be better regulated (or indeed, regulated at all), part 1 of our blog looks at the comparable situation in Australia. Do we have a problem with unregulated experts, too?
In Australia, and in the UK, decisions about who should have primary custody of the children are routinely made by judges who must give weight to family law experts’ opinions, since the judges don’t directly observe family dynamics themselves. As such, they have to trust what the experts are telling them. And the opinions of such experts are often quite pivotal in parental disputes in the family courts.
The problem is, when family law experts wield substantial influence in court outcomes, there needs to be oversight. When unregulated experts provide potentially incorrectly-formed opinions to family court judges, there can be massive ramifications for families, as the UK study’s heartbreaking details demonstrate.
The peer-reviewed, qualitative study, by University College London researcher Dr. Sonja Ayeb-Karlsson and published in the Journal of Social Welfare and Family Law, “describes three devastating cases where [six] older children (aged 9 to 17) were removed from their mothers against their will, and were forced to live with their fathers despite allegations and sometimes court findings of abuse.”
The study discusses how unregulated experts who may not have the appropriate training and experience are giving opinions including on highly nuanced, complex issues such as parental alienation.
“These family court orders were made on the advice and guidance of unregulated family law experts who proposed to have identified so-called “alienation”—or that the mother was manipulating the children and had unjustly turned them against their father.”
When such family law experts are unregulated, the study author notes, “that poses a risk to the public, as family court users may be persuaded into believing that a professional put forward in the court is clinically trained to assess and diagnose their children. Unregulated experts should not be guiding the courts on something as valuable as our children’s futures.”
What about family law experts in the Australian Court system?
The role and influence of expert report writers in how Australian courts decide parental disputes has been a topic of debate for at least the past decade. Last year, the ABC again turned to the subject, with the report “False Witness” unveiling fresh concerns over the problematic behaviour of unregulated private court experts.
The ABC program alarmed the Attorney-General’s office enough that it issued a statement in response, in which the A-G expressed alarm at the allegations, and explained that experts like family consultants or court child experts, who are employed by the court, are subject to a “clinical governance framework”, but the courts have “no oversight or regulatory authority over private practitioners.” Complaints about private practitioners can only be made to the relevant experts’ professional regulatory authority.
In Australia, the issue of regulation of court experts was raised in the various family law reform inquiries over the years, with strong feedback both from the public and from practitioners that there needs to be reform, especially in terms of having mandated standards on qualifications, core competencies, accreditation and experience working with children and families.
And now, with the passing of the Family Law Amendment Act 2023, it looks as if the Government has heeded the call for change, incorporating various amendments relating to family report writers into the Act, including regulations to, among other things, prescribe standards and requirements for family report writers. It’s about time, though it remains to be seen if the changes go far enough in terms of regulating family law experts advising the Courts.
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In part 2 of our blog, we’ll take a look at how the debate about parental alienation is advanced by the UK study.
To speak with Canberra family lawyer Cristina Huesch or one or our other experienced solicitors here at Alliance Family Law, please call (02) 6223 2400.
Please note our blogs are not family law advice. For information on how to obtain the correct family law advice, please call Alliance Family Law.
