Some news on the much awaited reforms relating to the instruction of unregulated experts in the Family Court: the Family Procedure Rule Committee has launched a consultation on proposed rule changes that are said to tighten the standards for the instruction of expert witnesses. We’ve written about this a lot before. Rather than link to all the posts we’ve written, just tap ‘unregulated expert’ into the search box to find those posts (but here is one example).
Some context
To track back a little – this has been a topic of interest and concern for a number of years. In 2021, the most senior Family Court judge, Sir Andrew McFarlane, issued a ‘Memorandum : Experts in the Family Court‘, which reminded judges and lawyers of the principles that should apply when deciding on the instruction of an expert, in particular these principles (often referred to as the Daubert principles after an American case):
(i) whether the proposed expert evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience;
(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 guidance also reminded the reader that:
Where the expert is not subject to statutory registration (i.e. child psychotherapists) para 6 of the Annex [to the relevant Practice Direction] identifies alternative obligations to ensure compliance with appropriate professional standards.
Although it doesn’t say so, that memorandum was an attempt to deal with a particular concern about ‘parental alienation experts’ (we know this because around the time it was delivered Sir Andrew gave a speech saying as much).
Concerns continued to be expressed about the work of experts in this area, through a number of articles and investigations in the mainstream media, and those working in the field of domestic abuse – and in 2023 Sir Andrew delivered a judgment in the case of Re C, where concern had been raised about one particular expert. Although he did not accept all the arguments made on appeal, or the criticisms that had been levelled at the particular alienation expert in the case (Melanie Gill), the President commented on her CV, saying that it ‘indicated extensive experience of reporting in cases of alleged parental alienation’ and was
‘a diffuse and confusing narrative of attendance at courses and other activities. It would have been hard for the parties and the court to drill down to see what her underlying qualifications were.’
Sir Andrew also reiterated some basic principles about the roles of judge and expert – reminding lawyers and judges that it is for a judge to decide questions of fact, and this means it is for a judge, not an expert, to decide whether alienating behaviours have been proved, and for experts to advise what to do about it afterwards. The President, noting the concern about that an expert psychologist might be entirely unregulated, because the title ‘psychologist’ is not protected (i.e. anyone can use it), made clear that, usually, only regulated psychologists should be instructed in the family court, but that beyond that it was for Parliament to deal with the bigger issue of the regulation of psychologists.
Following Re C, the British Psychological Society reissued its guidance for the instruction of experts (written jointly with the Family Justice Council), and helpfully explained the different sorts of psychologists and which ones were and were not regulated by the statutory regulator (the HCPC).
Parliament disagreed that the regulation of psychologists or the rules around their instruction in the family court was a job for them, and in 2024 they sent the issue back to the Family Procedure Rule Committee, where it has been ever since, being dealt with by a subcommittee. Finally, the issue sees the light of day again in this consultation. Interest remains high in the topic, with an undercover investigation around the expert in Re C (and others) having been published by Tortoise in early 2025, which suggested that such experts were not neutral and impartial, as required of an expert witness.
Here is what The Bureau of Investigative Journalism wrote about the proposals. Essentially, the campaigners they spoke to said the proposals don’t go far enough to solve the problem of unregulated experts in the Family Court.
So, what does the consultation say?
If you want to read it in full, or to respond to it, you can find it here.
The consultation summarises the problem in this way:
If an expert’s profession is not subject to regulation by a UK statutory body, there is no requirement for that expert to join a professional association that oversees compliance with minimum qualification standards and continuous professional development. As a result, the current process allows for the instruction of unregulated experts whose lack of regulation does not provide parties a proper route to raise concerns over an experts conduct. This can lead to an uneven situation, where the standard of expert evidence varies depending on whether or not the expert instructed is subject to proper checks from a professional body.
The consultation materials explain that the proposals don’t cover financial remedy cases where there may be a legitimate need to instruct an expert who is not subject to statutory regulation. And so these proposed rule changes apply only in family cases about children. In reality, because most of the sorts of experts used in family cases (such as social workers or medical professionals) ARE the subject to statutory (i.e. mandatory) regulation, the rule changes will mainly cover areas such as psychologist (where only ‘clinical psychologists’, ‘educational psychologists’ and ‘forensic psychologists’ (plus various other sorts of psychologists not often relevant to family court) are regulated- leaving anyone else who wants to call themselves a ‘psychologist’ or some other sort of psychologist unregulated – and psychotherapists (where there are some voluntary membership bodies who maintain a public register and perform some quality control and regulation functions in respect of those who choose to be members).
The proposed new rules say that in children cases a proposed expert must be ‘regulated’. This is defined as including both statutory regulators (like Social Work England, HCPC or the GMC) and voluntary regulation by being on the register of an organisation accredited by the Professional Standards Authority (PSA) (such as the Association of Child Psychotherapists). This does exclude membership organisations like the Academy of Experts, which we wrote about here.
However, there is an exception in the proposed new rules: when no such expert is available. There are various other exceptions too, for example relating to foreign experts, but it is this more general exception that some have said may allow for judges to still permit the same experts to be instructed as before, because they – or the parties wishing to instruct them – may say their expertise is very particular and no regulated expert can do what they can do.
Bearing in mind the public debate and concern on the topic and the background to these changes being proposed, we have a few preliminary thoughts and observations about the proposals as drafted:
- The proposed changes might have been an opportunity to incorporate aspects of the Memorandum, such as the Daubert criteria, into the Practice Direction. What will the status of that memorandum be following implementation of these changes?
- The proposed changes might have been an opportunity to ensure that the BPS and Family Justice Council joint guidance was signposted, or endorsed as containing good practice. What should we read into the fact that this hasn’t happened?
- Similarly, the proposed changes might have been an opportunity to signpost to and to endorse the FJC guidance on alienating behaviours,
- Even though there is no mandatory regulation for some disciplines, such as psychotherapists, the rule change could have required any psychological expert being instructed to be a regulated psychologist, but the proposals stop short of that.
- The definition of ‘regulation’ is unclear, partly because the definition refers to UK regulators, when some regulators are not UK wide (eg Social Work England), and other regulators are voluntary only. There is no requirement in the rules for an expert working in a particular field to submit to an applicable available regulator. If all the psychotherapeutic experts working in a particular field elect not to be regulated can it be said that no regulated expert is available, such that the exception is triggered? Quite possibly. If all the psychological experts working in a particular niche field ensure they only describe themselves as ‘child psychologist’ (a label which is not regulated), would the same apply when an expert in that area is needed?
- Notably, there is no requirement for the regulated professional to be in good standing or to notify of any suspension or disciplinary finding or sanction – or criticism in another case.
There may be other points, but those are the obvious ones that jumped out at us. It remains to be seen whether these changes will be adopted as proposed, or whether they will be changed. The consultation is open until early June. In reality, knowing how slowly the Rule Committee can work, the earliest we are likely to get any rule change is April 2026, and it will be only after that that we will begin to see whether the changes make any difference, for better or for worse.
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