Instructing Unregulated Psychologists as Experts
Guidance in Re C [2023] EWHC345 (Fam) for Instructing Unregulated Psychologists as Experts
The Appeal
A mother appealed a family court order made by HH Judge Lindsay Davies on 15 June 2022. This order refused the mother permission to reopen findings of fact made in a judgement given on 24th June 2021. The appeal also challenged the judge’s decisions to impose a restriction on further applications under s.91(14) of the Children Act 1989 and to order the mother to pay costs.
On 15 July 2022, Judge Peel granted the mother’s appeal ‘for some other compelling reason’. This being that it was in the public interest for the court to consider the instruction of unregulated psychologists as experts in the Family Court.
Background
In a final hearing in February 2021, Judge Davies made orders for both of the mother’s children to live with their father and after a period of suspension, the mother’s contact with the children was to develop in a structured manner. Judge Davies in her judgment relied on a report which was filed on 12 October 2020 by a psychologist, instructed as a joint expert, which concluded that the mother had alienated her children from their father.
The mother argued that the psychologist was not qualified to carry out the assessment. Therefore, the fact -finding determination could not stand.
The ACP (Association of Clinical Psychologists) - UK
The ACP- UK applied to intervene in this appeal on the following basis:
‘… to assist the Court by providing independent submissions on the issues that arise in the present case from the unique perspective of the representative body of psychologists who are qualified to report in cases such as these. It is able to offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.’
Key Points From Guidance
There was no definition of an "expert" in family proceedings, save for the circular procedural definition in the Family Procedure Rules 2010 r.25.2(c).
Certain statutory exemptions to the term were set out in the Children and Families Act 2014 s.13(8).
Expert evidence would only be permitted in children proceedings if it was necessary to assist the court to resolve the proceedings justly (s.13(6)).
An expert witness may give factual evidence on a matter that he is not qualified to give expert evidence upon, but his opinion will only be admissible ‘on any relevant matter on which he is qualified to give expert evidence’ [Civil Evidence Act 1972, s 3]. There is no definition of ‘qualified’ in CEA 1972.
Save for those individuals who are excluded from giving expert evidence by C+FA 2014, s 13(8), the question of whether an expert is ‘qualified to give expert evidence’ [CEA 1972, s 3] is a matter for the court in each individual case.
The instruction and role of experts in the Family Court is already the subject of extensive coverage within FPR 2010, Part 25 and PD25A-D.
The generic label "psychologist" was not protected and could be used by any individual, whether registered or not. A report by an unregistered person calling themselves a psychologist could be called a "psychological report".
The open-house nature of the term "psychologist" was unhelpful and potentially confusing. It was a matter for the psychological profession and, ultimately, Parliament whether a tighter regime should be imposed.
Judgment
The appeal was dismissed.
Costs order against mother to pay costs in region of £26k to respondent father and £20k to psychologist.
Costs order of £20k against ACP-UK to be divided equally between the respondent father and the psychologist.
To read the full judgment please see the below link
https://www.judiciary.uk/wp-content/uploads/2023/02/Re-C-Parental-Alienation-judgment-220323.pdf