There has been a lot of discussion recently about experts in the family court, prompted partly as a result of the recent publication of a ‘memorandum’ on the topic by the President of the Family Division, and partly as a result of some recent press coverage relating to a case where an expert was replaced after one party belatedly noticed aspects of their CV that they weren’t happy with. This post does not comment on that particular case, though we may write about it in due course if we can get more information:

Watch this space – just put in a request for publication of (an anonymised version of) this judgment. Essentially, if we can’t know the name of the expert can we know the reasons please? #transparency #familycourt : https://t.co/FDeYTBMzLY

— transparency project (@seethrujustice) October 20, 2021

Instead, this post is an attempt to provide a useful generalised explanation of what the rules are in respect of the instruction of experts in the family court, to explain a little about the types of expert and what to look for when the instruction of an expert is being proposed.

What did the memorandum say?

The memorandum sets out the established principles applicable to the instruction of experts in court proceedings (not just family court). It does not change the law or guidance, it merely reinforces and reminds us what should already be happening.

The memorandum It identifies four key questions, drawn from caselaw :

(i) whether the proposed expert evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience (“The expert must demonstrate to the court that he or she has the relevant knowledge and experience to give either opinion evidence, or factual evidence which is not based
exclusively on personal observation or sensation.”);
(iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence (“The court will refuse to authorise or admit the evidence of an expert whose methodology is not based on any established body of knowledge”).

In reminds the reader that in family proceedings there is a further requirement – expert evidence will only be allowed where it is “necessary” to assist the court to resolve the proceedings justly (s13(6) of the Children and Families Act 2014 or Family Procedure Rule 25.4(3), depending on the sort of case).

There follows a short passage about standards for experts working in the family court, again reprising the existing rules and guidance requiring an expert to comply with his or her duties to the court (set out in PD25B) and with the standards in the Annex to that PD. These standards include :

• requirements to have been active in the area of work;
• to have sufficient experience of the issues;
• to have familiarity with the breadth of current practice or opinion;
• they must be in possession of a current licence (if their professional practice is regulated by a UK statutory body),
• they must be up to date with CPD
• they must have received appropriate training on the role of an expert in the family courts.
• Psychologists are mainly regulated by the Health and Care Professions Council. The Family Justice Council has issued guidance jointly with the British Psychological Society on providing expert reports in the family courts.
• Where the expert is not subject to statutory registration (i.e. child psychotherapists) the Annex identifies alternative obligations to ensure compliance with appropriate professional standards.

Finally, the memorandum says this, which perhaps hints at why this memorandum was necessary :

“The Family Court adopts a rigorous approach to the admission of expert evidence. As the references in this memorandum make plain, pseudo-science, which is not based on any established body of knowledge, will be inadmissible in the Family Court.”

What do the rules say?

The rules give more detail than is set out in the memorandum, which is really only a reminder of some key points. Practice Direction 25B (PD25B) is the main source here.

PD25B spells out that the expert’s first duty is to the court, and this overrides any duty to the person paying them (i.e. an expert is not or should not be an ‘expert for hire’).

An expert must have regard to the following duties –

• (a) to assist the court in accordance with the overriding duty;
• (aa) in children proceedings, to comply  with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in  the Annex to this Practice Direction;
• (b) to provide advice to the court that conforms to the best practice of the expert’s profession;
• (c) to answer the questions about which the expert is required to give an opinion (in children proceedings, those questions will be set out in the order of the court giving permission for an expert to be instructed, a child to be examined or otherwise assessed or expert evidence to be put before the court);
• (d) to provide an opinion that is independent of the party or parties instructing the expert;
• (e) to confine the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert’s expertise (skill and experience);
• (f) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;
• (g) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;
• (h) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.

An expert’s report should confirm that they are aware of and have complied with the standards and duties placed upon them.

When an expert expresses an opinion to the court that opinion should :

• (i) take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
• (ii) describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;
• (iii) indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
• (iv) indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;
• (g) where there is a range of opinion on any question to be answered by the expert –
• (i) summarise the range of opinion;
• (ii) identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
• (iii) give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court;

As for the Annex, which sets out standards for experts in children cases – that sets out ten requirements (in addition to one about fees):

• 1.    The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.
• 2.    The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.
• 3.    The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.
• 4.    The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.
• 5.    If the expert’s current professional practice is regulated by a UK statutory body (See Appendix 1) they are in possession of a current licence to practise or equivalent.
• 6.    If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis.  Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability. 
• 7.    The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.
• 8.    If the expert’s current professional practice is outside the UK they can demonstrate that they are compliant with the FJC ‘Guidelines for the instruction of medical experts from overseas in family cases’.¹
• 9.    The expert has undertaken appropriate training, updating or quality assurance activity – including actively seeking feedback from cases in which they have provided evidence- relevant to the role of expert in the family courts in England and Wales within the last year.
• 10.    The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

The Annex also sets out the position in respect of individual disciplines and regulators. It tells us that ‘Psychology is the scientific study of people, the mind and behaviour. Psychologists attempt to understand the role of mental functions in individual and social behaviour.’ and notes that various types of psychologists are regulated by the HCPC (Health Care and Professions Council), including :

• Practitioner psychologist
• Registered psychologist
• Clinical psychologist
• Counselling psychologist
• Educational psychologist
• Forensic psychologist

It also says that social workers are regulated by the HCPC, which is out of date – they are now regulated by Social Work England (or in Wales the Care Council for Wales).

Finally, there is a list of some professional bodies or associations that apply to non-statutorily regulated professions (though some of the organisations on the list relate to social workers, who are subject to statutory regulation). The list is not a full list of such organisations.

Instructing an expert – what should a lawyer or litigant look out for?

When instructing an expert it is really important to find the right person for the job. This is not always easy. Sometimes there is more demand for experts of a particular type than there are available experts – this can mean that the parties and court may have to strike a balance between experience, cost and timescale.

Whether you are responding to someone else’s application for an expert, or proposing your own, these are the main factors you and your lawyers (if you have them) are going to want to think about :

Discipline – what SORT of expert to you need? For example do you need a psychologist, a psychiatrist or a psychotherapist? Do you need a radiologist or a neurologist or both?

Qualifications – what academic qualifications and professional training have they undergone? For some areas of expertise it will be important to consider whether their training and experience includes on the job training with patients or clients (clinical experience).

Some professional titles are protected titles – which means that it is unlawful to use them unless you meet certain basic minimum standards in terms of qualification and regulation. Protected titles include :

• social worker
• barrister or solicitor (but note that ‘lawyer’ is not a protected title)

“Chartered psychologist” is a legally recognised title (and means that they are registered with the British Psychological Society. The BPS website says it ‘reflects only the highest standard of psychological knowledge and expertise’. However, their site also says :

the Health and Care Professions Council (HCPC) are the regulator for Practitioner Psychologists in the UK, and anyone using one of the titles listed at https://www.hcpc-uk.org/(link is external) must be registered with the HCPC in order to do so.

Visitors are advised to check on the HCPC register(link is external) to check that a practitioner is registered before deciding to use their services, if these fall into an area covered by the HCPC protected titles.

and that

the BPS does not endorse or recommend individual members and makes no statement as to their experience or competence. It is the responsibility of the user to verify the background, qualifications and experience of any member whose services they are considering.

The term “Psychologist” however, is neither legally recognised nor a protected title.

Some professionals are subject to mandatory regulation as a condition of practice – note that some professionals are subject to mandatory regulation even if their title is not protected :

• solicitor (by the Solicitors Regulation Authority)
• barrister (by the Bar Standards Board)
• social worker (now by Social Work England, previously the HCPC)
• various sorts of psychologists are subject to regulation by the HCPC – broadly speaking these are psychologists whose work involves contact with clients/patients). Someone who calls themselves a ‘psychologist’ rather than a ‘practitioner’, ‘clinical’ or ‘forensic’ psychologist is probably not regulated.
• doctors are subject to regulation by the GMC

Typically, for each regulated profession there will be a public register, which you can search to check your expert has current registration and whether they have any disciplinary findings pending or made.

Even where they are not required to be subject to regulation, many experts may be members of a professional body which may require them to undertake CPD or comply with standards of competence and or conduct. Those standards and how they are enforced will vary from discipline to discipline and from association to association. As membership is voluntary enforcement of standards is obviously more difficult.

For example, psychotherapist is not a protected title and psychotherapists are not subject to mandatory regulation. There are multiple psychotherapy membership associations (not all listed in PD25B). Some psychotherapists will be a member of one or more associations, some will be members of none. Each association will have different requirements and expectations.

Regulation is important for two reasons :

• it should ensure that your expert meets the basic standards for their profession, and that they undergo regular training
• if something goes wrong there will be a process for complaint and redress, and if your complaint is upheld it may help protect others (though the main route to challenge the correctness of the expert’s opinion will still be through the court process)

If an expert is regulated they should identify their regulator and registration number on their CV so you can easily check their status.

Continuing professional development – any expert should be undertaking CPD to ensure their knowledge of current thinking, research and best practice is up to date. CPD will also help them to ensure that they are aware of alternative approaches and theories apart from their own, so that they can give a balanced opinion and acknowledge those alternative views in their report and justify their own.

Experience – what posts have they held? Does their experience include ongoing clinical experience that they can draw on? Have they treated people like the person to be assessed? Generally speaking it is preferable to instruct an expert whose experience is based upon previous AND CURRENT clinical experience rather than ‘book learning’.

Expertise – expertise is a combination of training and actual hands on experience.

Expertise as an expert – as we’ve noted above, the Practice Direction expects experts to have received appropriate training in the role of expert – that is, training that will help them to understand their role in assisting the court, their duties and how best they can structure their reports and evidence so as to be useful to the court.

Many expert’s CVs will indicate that they have undertaken training, and will give an indication of how much experience they have of expert work, and how much of it is in the family court. Some experts may be a member of a professional body for expert witnesses – membership requirements of such organisations will vary, and membership won’t necessarily tell you anything about the expert’s expertise or professionalism in their main field of expertise.

In addition, you will probably wish to ensure that your expert has appropriate indemnity insurance. For some regulated professionals indemnity insurance is a condition of practice, so if they are on the register for their profession you know they have insurance.

How do I know if my expert is a good ‘un?

There are probably 5 ways to ‘check out’ a proposed expert (apart from carefully scrutinising their CV) :

• check their name is on the applicable register, and check disciplinary findings and forthcoming hearings
• check the press (google their name) – but make sure your source is reliable
• check BAILII (and other sources of judgments – though not all judgments are published on BAILII) to see if they have been praised or criticised etc.
• if they have a website, scrutinise their website
• If there is anything you are not sure about or would like more information about you can ask them (via your solicitor if you have one).

Some specific points about psychologists

The Family Justice Council / British Psychological Society Guidance (which is endorsed in the PD) spells out some important points about the instruction of psychologists, which we suggest should be considered whenever appraising a proposed psychological expert’s CV :

Protected titles can only be used by practitioner psychologists who meet the stringent criteria for statutory regulation with the HCPC. The title ‘Chartered Psychologist’ can only be used by psychologists who have achieved Chartered status
with the BPS. Psychologists registered with the HCPC and/or Chartered with the BPS fall within recognised compulsory professional codes of conduct, ethical frameworks and regulatory processes (HCPC registered psychologists only). See
Appendix 1 for a detailed description of protected titles and current regulation issues. All psychologists that are eligible to do so should use their protected titles.
Titles with no specific meaning or protection include those often used within the Family Court system, such as ‘psychologist’ and ‘child psychologist’. The HCPC does not protect these titles and the Society only confers the use of the title Chartered Psychologist. Should a court appoint an individual who does not use any of these protected or Chartered titles, it should be aware that this would fall outside of the regulatory framework of the HCPC and the accountability of the BPS.
Whilst the regulatory framework for psychologists remains complex, Courts should wherever possible expect that all psychologists based in the UK providing evidence to family proceedings are either regulated by the HCPC (if they are practitioners) and /or have (or are eligible for) Chartered status with the BPS.

Note that last sentence. Check CVs carefully. Whilst there may be cases in which it is appropriate to instruct a ‘psychologist’ who is not regulated by the HCPC, it would normally be the case that anyone sufficiently competent, experienced and expert would be in (or recently have been in) clinical practice and as such would be regulated.

Can I leave this to my lawyer? Should I leave this to my lawyer?

Lawyers working in the field of family law are generally pretty knowledgeable about the experts working in the field and may well have direct experience of the expert being proposed (for good or bad). Their guidance is likely to be helpful in deciding whether to agree an expert is needed, and in deciding which expert is the best one for the job.

However, family lawyers are busy and may not always have time to scrutinise CVs as thoroughly as you (or they) might wish.

It’s ok to ask them for more information about the expert in question, or why they are recommending / supporting the instruction of the expert proposed – at the end of the day they work to your instructions, so if you are not sure or want more information, ask. They may have selected the expert in question because they are the best in their field, or because they are the only suitable expert available without too much delay – every so often they may have run with an expert someone else has proposed without spotting something that your eagle eyes have picked up. If an expert instruction is really necessary, a court can often be persuaded to wait a short while to allow the parties time to identify the right expert to meet the needs of the case.

A note of caution

On 14 November we amended this post slightly in connection with Chartered status, because it was pointed out to us that a chartered psychologist does not necessarily have to register with the HCPC (it will depend on what title they use / whether they are a ‘practitioner’ or ‘clinical’ psychologist (or one of the other listed titles set out on the HCPC website). The reason we were originally confused about this is because we relied upon the FJC guidance (Set out above) which says,

Psychologists registered with the HCPC and/or Chartered with the BPS fall within recognised compulsory professional codes of conduct, ethical frameworks and regulatory processes (HCPC registered psychologists only).

In fact, it’s not clear that all Chartered psychologists do fall for regulation by the HCPC (although in practice most probably do), so the FJC guidance appears to slightly oversimplify / muddles things. Complicated, isn’t it?

Feature pic : Justice Lane courtesy of Zoey White

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