This article was originally published in Family Law ( Fam Law 422) in April 2022, and is reproduced here with kind permission.
In October 2021 the President published a memorandum about experts. In it, Sir Andrew reminded us of four key questions to be asked in each 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.
Further, it referenced the relevant FPR and FJC guidance (more honoured in the breach some might say). The memorandum concluded with a stern warning about ‘pseudo-science’:
‘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.’
The memorandum is widely understood to relate to ‘alienation experts’. In fact it doesn’t include the word ‘alienation’ at all, but we know that is what the President was talking about because he said so in a speech that month: ‘Supporting Families in Conflict: There is a better way’ (an Address by Sir Andrew McFarlane to the Jersey International Family Law Conference 2021). He said:
‘One specific problem which is said to arise in cases of domestic abuse is the not infrequent counter assertion that the person making allegations of abuse is themselves causing harm to the child by “parental alienation”. This is a complex and sensitive issue, and in the short time available in this address I seek to make one and one point only about it. Where the issue of parental alienation is raised and it is suggested to the court that an expert should be instructed, the court must be careful only to authorise such instruction where the individual expert has relevant expertise.’
Furthermore a subsequent experts working group newsletter from the Family Justice Council (available on the FJC website) confirmed this:
‘The President of the Family Division has published a Memorandum on Experts in the Family Court which emphasises the basis of the instruction of experts in particular (but not limited to ) in the field of parental alienation and reiterates the need for compliance with the Annex to Family Procedure Rules Practice Direction 25B.’
Around the same time came news reports of a case in which concern was raised about the credentials and regulatory position of an alienation expert who had been instructed in a case in Croydon (see Re A and B (Children)  EWFC B64). The district judge in that case published her judgment in response to our request, but we remain baffled at why the expert, who was ultimately swapped out before undertaking any work, should be entitled to privacy in respect of the fact of their instruction, and their credentials. We wrote about that in ‘The Mystery of ‘X’ – the Croydon Expert’ (Transparency Project blog, 13 Nov 21). The expert in question was, in any event, apparently widely named online and if those reports are right, has since removed all public trace of their CV from the internet. Are they still undertaking expert work? Although the expert was the subject of criticism only by the mother, which the district judge expressly did not adopt, we think that some would wish to know, in order to make informed decisions about their own instructions, and to appraise the validity of the criticisms made.
Amidst this swirl and whilst waiting for confirmation the Croydon judgment would be published after all, we wrote a post about expert instructions, ‘Defining Expertise’ (Transparency Project blog, 25 October 21), trying to clarify the web of and rules and guidance around discipline, title, expertise and regulation. The position is perhaps most complicated and controversial in respect of ‘psychologists’, where the label ‘psychologist’ is not a protected title and where many other labels that are seen on CVs circulating in family cases do not connote anything in terms of particular qualification, expertise or regulation.
In November, our chair Lucy Reed wrote a post on her blog (‘While you’re at it, boss’, Pink Tape blog, 13 Nov 21) about proposed and possible amendments to PD 12G (Communication of Information), following on from indications in the Transparency Review that adjustments to that PD were likely, pointing out that under the existing rules:
‘. . . there is no provision for an expert to share their reports for the purposes of peer review, supervision, to professional regulators or insurers or to deal with complaints – even anonymously (lawyers can share with their regulators and insurers, experts can’t, and parties can share information in order to make a complaint against an expert – but if they share incomplete information an expert can’t share the balance. It is pretty clear, based on my experience that experts DO share their reports for such purposes, and I can’t really see it ought to be objectionable)’.
Our research for the purposes of the ‘Defining Expertise’ blog suggested that it was unclear whether experts, regulatory, professional and other expert bodies were fully aware of this lacuna in the PD, and we explored that issue in the course of the ‘Mystery of X’ blog.
In December the Association of Clinical Psychologists UK quietly issued a statement, only really spotted in January. You can read the full statement on their site, but the summary reads:
• ‘ “Psychological experts” without the necessary qualifications and experience are sometimes being instructed to act as expert witnesses in the family court. This can result in harm to the public.
• In terms of Psychologists, only a practitioner psychologist (currently registered with HCPC) such as a Clinical Psychologist can give a diagnosis or formulation or make recommendations about therapeutic interventions. Some, but not all practitioner psychologists, can make recommendations about capacity.
• ACP-UK is aware of several cases in which “psychological experts” who are not HCPC registered have suggested inappropriate diagnoses and made recommendations for children to be removed from their mothers based on these diagnoses.
• ACP-UK wishes to support those instructing experts for the courts to understand the importance of using HCPC registered practitioner psychologists and is available for consultation on such matters.
• More broadly, to protect the public from harm, the ACP-UK is campaigning for legislation to protect the term “psychologist” and restrict this to use by practitioner psychologists regulated by the HCPC.’
All of this is most concerning and perplexing. And what we have also noticed since then is a smattering of recent judgments involving psychologists or so-called ‘alienation experts’ who are anonymised. Some of them are specific that the instructed expert was a ‘clinical psychologist’ (which is a protected title and regulated), but others do not even give this limited information. See, for example :
- A and B (Child Arrangements: Parental Alienation)  EWFC B11. Unnamed court and unnamed clinical psychologist, who identifies alienation.
- F v M  EWFC B101 (not published until 2022). Unnamed court, and all experts and social worker anonymised and discipline / qualifications not stated.
This is not normal. Both in the sense that it is not usual practice to anonymise experts in Family Court judgments (and guidance supports the naming of experts in general eg the 2014 Publication of Judgments Guidance issued by Sir James Munby as President), and in the sense that it is odd. There is nothing in the judgments we’ve seen to indicate any reason for needing to afford anonymity to these experts – there may be explanations but if there are the judges have not summarised them in their judgments, which is regrettable. On the other hand, maybe there are no reasons given because nobody really thought about it much – perhaps anonymisation was included by an over-enthusiastic or over cautious lawyer, tasked with preparing a version of the judgment for publication – or perhaps it was requested by the expert and simply acceded to without further thought to the justification, the impression it would create or the questions that it would leave hanging? Are any of these experts the expert in the Croydon case? Are they the experts that the ACP has raised a concern about? Are they experts criticised in other cases? Is there a pattern? Are they regulated? Are they the expert being proposed in this or that case and should lawyers be advising their clients to agree that instruction? Why did the expert feel the need to be anonymised when their evidence was accepted by the court and not the subject of judicial criticism (as is the case in most of the experts we’ve seen).
We know there is a wider context to this debate. There is, in some fields at least, a shortage of experts (or at any rate a shortage of good experts), and the FJC working party on experts identified (as others have before it) that some of them are anxious about the fallout from their taking on expert work in controversial cases (though more typically this is voiced by paediatricians or other medical experts rather than psychologists). Nobody wants to create a disincentive to experts to take on the important and challenging work of assisting the Family Court, thus further reducing the available pool in a given discipline. However, experts must be demonstrably expert, because the system that relies upon them must hold public and stakeholder confidence, and it must be as transparent as is consistent with its primary function. We don’t think that offering routine anonymisation to independent experts in a controversial field is helpful or appropriate. At the very least if it is to be done it should be explained on the face of the judgment.
The field of alienation in particular is both topical and controversial. The experts working in that field are sometimes but not always the subject of compulsory regulation, either because their discipline is psychotherapy (which isn’t regulated) or because they operate as some form of unregulated psychologist (eg ‘applied child psychologist’). In order to allow proper debate of questions around whether the Family Court is properly scrutinising expertise in accordance with the guidance and rules at the point of instruction, it is necessary to know who is being relied on in the increasing number of alienation judgments we are seeing published, and interesting to see whether these issues make it into the judgment at all, when that expert’s evidence is considered by the court.
If a member of the public was currently to try to ascertain from published judgments whether or not the Family Court really is adopting the rigorous approach to the admission of expert evidence that is required, and whether it is in fact avoiding reliance upon pseudo-science, they would be hard pressed to find an answer, and unlikely to come out with their confidence boosted.
We’ll be keeping our eye on this important emerging issue. There are not yet enough of these judgments to amount to a clear trend, but we will be looking out to see if a smattering becomes a pattern, and if so we will interrogate what is driving that pattern.
Post script: we are not the only ones with our eyes on these issues. On 25 February 2022 MP Apsana Begum asked the Secretary of State for Justice by way of a written question in the House of Commons, whether he would conduct a review of the use of psychological experts in the family courts ‘for the purposes of ensuring credibility, standards and consistency among experts particularly where allegations of domestic abuse have been made.’ The answer was ‘No’.
Feature pic Justice Lane courtesy of Zoey White
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