Unregulated experts & the need for clarity

With the courts confirming there is no way to define an ‘expert’ in family proceedings, Sarah Keily stresses the need for caution until change is effected, in an article for New Law Journal.

The President of the Family division, Sir Andrew McFarlane, recently gave judgment in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). The judgment provides guidance to family law practitioners about the instruction of unregulated experts, in particular in cases where parental alienation is alleged.

Background

These long-running proceedings relate to the arrangements for two children, now aged 11 and 13, where contact with their father had broken down and the father alleged that the mother had alienated the children from him. Following evidence from a single joint expert psychologist (Ms A), the court found that there had been parental alienation by the mother and an order was made for the children to move to live with the father.

The judge based her decision on three pillars: the mother’s evidence at final hearing, the evidence of the children’s guardian and the expert evidence of Ms A.

The mother made an application to re-open the finding of parental alienation on the basis that Ms A is not regulated by the Health and Care Professions Council (HCPC). The mother argued that the guidance in relation to the instruction of unregulated experts in cases where parental alienations alleged had moved on considerably since the instruction of Ms A was agreed. The mother argued that Ms A was not qualified to carry out the necessary assessment of the children and that her evidence could not be relied upon.

The mother’s application was refused and she was ordered to pay a contribution to the father’s costs. The judge also imposed a restriction under s91(14) of the Children Act 1989 on the mother bringing any further applications for three years.

The mother sought permission to appeal and permission was granted, not because the proposed appeal had a real prospect of success, but ‘for some other compelling reason’, namely that it was in the public interest for the court to consider the instruction of unregulated psychologists as experts in the Family Court, in general, and Ms A’s instruction and role in this case, in particular.

The mother’s appeal was heard in October 2022. Ms A intervened, as did the Association of Clinical Psychologists UK (ACP-UK), who supported the mother’s position. The HCPC were specifically invited to intervene, but declined to do so on the basis that the title ‘psychologist’ is not a protected title and because Ms A is not registered with the HCPC, they have no jurisdiction over her. The appeal was opposed by the father and by the children’s guardian.

Judgment

The President found that whilst Ms A is unregulated, and he accepted that there should have been a greater degree of rigour in identifying the nature of the required expert in this case, it is not for the court to prohibit the instruction of any unregulated psychologist. The mother’s appeal therefore failed.

Guidance for Practitioners– Unregulated Experts

The President confirmed that there is no definition of an ‘expert’ in Family proceedings save that ‘expert’ means a person who provides expert evidence for use in proceedings. Therefore, the question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court. However, he urged caution in cases where an unregulated expert is being proposed and practitioners should be aware of the following:

• Certain categories of psychologist have a ‘protected title’, but the generic label ‘psychologist’ is not protected and may be used by any individual, whether registered or not. A report by an unregistered person calling themselves a psychologist may be called a ‘psychological report’
• The open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing. It is, however, a matter for the psychological profession and, ultimately, Parliament, whether a tighter regime should be imposed
• The court must have its eyes wide open to the need for clarity over the expertise of those who present as a psychologist, but who are neither registered nor chartered
• A clear and well-structured CV showing an expert’s qualifications and experience is needed to be able to see with clarity the underlying basis for an individual’s expertise. In the absence of such a CV the “kitemark” of HCPC registration should resolve the question of qualification
• If a psychologist is unregulated, it is incumbent on them to assist the court by providing a short and clear statement of their expertise
• In every case the court should identify whether a proposed expert is HCPC registered. If the proposed expert is un-registered, it is sensible practice for the court to indicate in a short judgment why it is appropriate to instruct them.

Therefore, whilst unregulated experts can still be proposed and appointed by the court, care must be taken to record why that particular expert has been appointed.

Parental Alienation

Within his judgment, the President commented that the following statement from the ACP-UK deserves to be widely understood and accepted:

‘Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.’

Where parental alienation is alleged, there needs to be a careful and nuanced assessment of the behaviour in the particular case, taking into account all relevant factors. The court must approach each case individually and consider all of the evidence before determining, as a question of fact, whether alienating behaviours have been exhibited by one parent.

This article first appeared in New Law Journal.