We tweeted about this case in Croydon Family Court, having read this local media report on it, ‘Mother  wins Croydon court fight over psychologist’ published on 18 October.

The article says that a mother in family court proceedings had objected to the appointment of an ‘expert’ who, although described as a ‘psychologist’ was apparently not regulated by the psychologists’ regulator, the Health and Care Professions Council (HCPC). After the expert had been instructed, but before they had carried out the work, the mother asked for an HCPC regulated expert instead, and the other parties and judge agreed to the change.

As we explained here, anyone can call themselves a psychologist – it’s not a protected title – but certain types of psychologists in England and Wales, e.g a clinical or practitioner* psychologists, have to be regulated by the HCPC.

In her judgment, Re A and B (Children) [2021] EWFC B64, District Judge Delia Coonan dealt with an application advanced on 18 October by Brian Farmer, court reporter with PA Media (formerly known as the Press Association). Mr Farmer had asked to be able to write about the hearing he had attended on 12 July, when the decision to switch experts had been made. Mr Farmer’s application was partially successful, hence the article in the local media. 

The information in the news report was generating a lot of speculation on social media, so we requested DJ Coonan to publish her full judgment on BAILII, which she did promptly, meaning  we can now read the reasons for the judge’s decision to keep the ‘expert’ anonymised as ‘X’.  

What did the journalist want to publish?

It was agreed that no one was going to publish anything that would identify the child in the case. Mr Farmer wanted to write that:

‘… mother carried out research into X and, as a result, asked you [the judge] to appoint a different expert; you decided X should be replaced; you said mother had discovered there was ‘no regulatory authority at all in relation to X’; you concluded that it was better to have report from an expert both parents were happy with and that it helped if reports prepared by an expert were subject to relevant regulatory bodies.’

Why did he want to publish that?

Mr Farmer argued that the public had a right to know what decision the judge had made in this case and why. He is further quoted as saying:

“Lawyers, social workers, teachers, guardians, and other judges should also be told about your decision”. “If a parent has any concerns about X they ought to be able to read about your decision”. “Most parents assume that all experts are regulated and will be surprised by your decision”. “I would argue that reporting your decision is in the public interest……….. I would also argue that reporting your decision ………….is in line with the now lengthy drive for transparency in family courts. Sir James Munby, then President of the Family Division said in his 2014 Practice Guidance on the publication of judgments that the public had a ‘legitimate interest in being able to read what is being done by the judges in its name’. ….. I don’t know how many children are involved in private and public law disputes in England and Wales annually. The number must run into thousands. Many of those children will be subject to reports by experts like X and Ms Rogers” (the expert subsequently appointed in place of X). “Their parents surely have a right to know what decision you have made in this case and why you made it. If you think it’s better that experts are subject to regulation, then many parents will heed your words and might well ask if the expert in their case is regulated. Lawyers, social workers, teachers, guardians and other judges should also be told about your decision. Reports by experts such as X can be the basis for decisions that children should leave home or move from one parent to another. (I imagine most parents assume that all experts are regulated and will be surprised by your decision).”

“If I don’t name X but merely refer to an expert, every expert in every family court case will come under suspicion including Miss Rogers.” “experts are normally named in judgments and media reports. There is an ongoing debate about naming doctors but not about naming experts. Bailii is laden with judgments naming experts. They’re appointed because they are independent. They’re akin to lawyers and judges in that respect. Naming experts and lawyers and judges doesn’t identify parties. Why shouldn’t experts and lawyers and judges be named? (If experts were never publicly named how would guardians and lawyers find the experts they needed?). I also think there’s an accountability point. Judges must be accountable because they’re public servants and make decisions which change peoples’ lives. Doesn’t the same logic apply to experts? If they’re paid to provide expert reports which can change peoples’ lives shouldn’t they also be accountable to the public?”

“I submit that the public has the right to know when judges are unhappy with experts and why and a right to know about your decision in relation to X. I submit that my article 10 rights should prevail in this case. If I report your decision, it’s logical and fair that I should name X. If I don’t name X but merely refer to an expert every expert in every family court will come under suspicion. Imagine if Tesco recalled a washing powder after discovering that it turned clothes red but didn’t reveal the name of the washing powder. All washing powder sales would collapse overnight.”

The judge gave X an opportunity to respond by filing a position statement. X, the mother and the Cafcass guardian all filed skeleton arguments on the publication point. The mother agreed that X should be named. The father was neutral. X did not agree, nor did the guardian, although this appears to have been for administrative reasons, not associated with the children’s views.

Why did the ‘expert’ X not want to be named?

X applied to the court for a reporting restriction order (RRO) to prevent him/her being named. The judge noted that section 12 Administration of Justice Act 1960 does not give an expert witness automatic anonymity. It is up to the applicant for the RRO to make a stronger case under Article 8 than the media have under Article 10.

The judge summarised X’s case:

1. They are in fact regulated and therefore they cannot be used by Mr Farmer as an example of an “unregulated” expert. They are a member of the Academy of Experts. (As to the Academy, see below.)
2. In any event, X said they are not a practising psychologist and do not fall within the other protected titles within the remit of HCPC, so they are not required to be regulated by them.
3. X relied on the fact that case law dealing with the naming of experts covers experts who have engaged fully in the underlying proceedings. Here, X had not met the family nor begun work.

What did the judge decide?

DJ Coonan said that:

1. Throwing a light on the appointment of experts and in particular psychologists, their regulatory framework, and the operation of guidance could all be easily achieved without naming X.
2. It would not be illogical to restrain disclosure of X’s identity. Naming X in the circumstances would not only be unnecessary for the achievement of Mr Farmer’s aims but would be unfair in that there was a danger that, being referred to as an expert discharged by the court would damage X’s reputation.
3. The court had made no criticism of X. (We are not sure how this is consistent  with point 2 above.)
4. A restraint on the publication of X’s identity was a proportionate interference with Mr Farmer’s Article 10 rights; publication of X’s identity would be a disproportionate interference with X’s Article 8 right to privacy.

The judge concluded that journalists could write this (and only this) about the July hearing:

‘I replaced expert X with expert Y. X had been appointed by order dated 19 March 2021 to undertake a global family assessment. X referred to themselves in their CV, amongst other things, as a psychologist. The mother had done some research about the qualifications of X after their appointment by the court and had discovered that they were not regulated by either the Health and Care Professions Council (HCPC) or the British Psychology Society (BSP). The mother had in consequence applied to replace X. The father opposed the replacement of X on the basis that when they had been appointed, X’s expertise and credentials were known to the parties and the court at the hearing on 19 March 2021. The Children’s guardian took a pragmatic approach and supported the mother’s application to replace X in order to maximise the potential for the assessment to progress smoothly in what were on any view protracted and fractious proceedings and in which the mother clearly had no confidence in X after what she had discovered about X. This court too took a pragmatic approach and replaced X for Ms Rogers for the reasons advanced by the Children’s guardian. Ms Rogers was subject to HCPC regulation. The court concluded for the purposes of that decision that it was indeed better for the parents to have a report from an expert that both parties were happy with and that it helped in terms of establishing their trust in the expert’s opinion, if the report was prepared by an expert who was subject to the relevant regulatory body. However, this court made no finding as to whether the mother was justified in her lack of confidence in X. It made no criticism of X at all. The court at this hearing made no findings and made no criticism because X was not at that hearing and had received no notice of the mother’s application.’

Comment

The judge was therefore explicit that she had not criticised X and that the question of whether X was or should have been regulated was not something she needed to rule on, in view of her decision that it would be better to appoint a HCPC regulated expert who all the parties had trust in. However, she concluded that there was a danger that reports of X having been discharged from a case might ‘damage their reputation’. X had in fact been discharged because the mother objected (a bit late in the day) and wanted a regulated expert, not because of any complaint about work carried out by X.

X’s arguments that they are in fact regulated but also they don’t need to be are confusing. If lawyers and courts are prepared to accept ‘expert’ evidence from unregulated non-psychologists, it is difficult to see how the court could accept the proposition that their reputation might be damaged or they might lose business simply because this mother asked for someone different, and the court complied, particularly since the decision was explicitly made on the basis that the court did not criticise the expert.

This all gives rise to a number of queries:

• Why would X think that publication of the factually accurate statement that he or she is not regulated by the HCPC would be likely to adversely affect his or her reputation?
• Does X think that membership of the Academy of Experts is equivalent to statutory regulation by the HCPC and that criticism based on this accurate statement of the facts would be unfair or unwarranted?
• Or does X think it doesn’t matter whether he or she is regulated or not?
• Or does X think that the fact that he or she was belatedly discovered to have been unregulated by the HCPC (as the Practice Direction and Family Justice Council guidance clearly suggest is best practice) reflects badly upon the appropriateness of holding him/herself out as an expert in this field in the first place, or of a CV which appears to have been insufficiently clear to enable the parties to make a properly informed decision?

The Academy of Experts

We’ve looked at the Academy of Experts whose website is at https://academyofexperts.org/

Their site says that ‘Academy practising individual members must go through a rigorous vetting procedure’, meaning that the Academy’s members are accredited rather than merely checked.

The 3 key criteria for accreditation are:

1. Relevant qualifications in their primary profession. The Academy checks that the prospective member does indeed hold the appropriate qualifications for the expert witness work they are undertaking.
2. Understanding of the role and duties of the expert.
3. The Academy requires references by instructing lawyers and samples of previous reports.

What the site doesn’t tell us is what the ‘relevant’ or ‘appropriate’ qualifications are for any given profession or whether an expert needs to submit regular evidence to demonstrate ongoing competence and professional development. However, we do know that in relation to psychological experts, the relevant rules (Family Procedure Rules Part 25 and Practice Directions) and guidance (Family Justice Council guidance) strongly suggest that the expert should qualify for regulation by the HCPC (see our post here). If X is or was a member of this Academy it suggests that the Academy does not consider HCPC regulation a necessary ‘qualification’ for an expert using the title ‘psychologist’.

Nor does it tell us how it is that experts working in the family court can lawfully provide samples of previous reports for scrutiny in order to meet the third criterion. Neither Part 12 nor Part 25 of the Family Proceedings Rules appear to permit this without specific permission of the court.

A search for ‘psychologist’ on the site on 12 November returned only 12 hits. Of those, three were neuropsychologists (a different field), and only two appeared to work in family courts. Both were chartered and in good standing with the HCPC. This is a surprisingly low number, given how many psychology experts work in the family court. Perhaps experts who are regulated by the HCPC feel no need to pay for membership of the Academy in order to reassure potential clients. Clearly none of the 12 people we found is X, who either wasn’t registered there or has removed his/her name.

The Academy does have a complaints process which relates to the person’s conduct as an expert, but presumably the only sanction they can impose is to remove their membership and listing. It is unclear on what standard of proof they determine what they term improper conduct. The code of practice that the Academy requires its members to adhere to is very generic and in any event does not appear to relate to family proceedings. Although the complaints procedure says that Academy will publish any findings of misconduct there are none published that we can find. Furthermore, we cannot see a basis under the court rules on which a party who wanted to make a complaint to the Academy about one of their experts would be able to disclose information about the court case.

It appears therefore that the Academy of Experts is primarily accrediting experience as an expert, rather than accrediting the underlying knowledge base or regulating fitness to practice and competence. Whilst membership of the Academy might offer some basis for reassurance to those seeking to instruct an expert, we don’t think it is equivalent to regulation by the HCPC or other statutory regulator. If expert X was trying to suggest that the two ‘regulators’ were equivalent we disagree. In any event, expert X, whoever they are, now seems to be ‘regulated’ by neither.

If X was previously listed on the register of Academy members, that listing would presumably have publicly shown the very credentials that are now the subject of debate and contention. That same information would have been listed on the expert’s own CV and any website, which are the two primary means of obtaining business as an expert. The fact that X was operating as an expert ‘psychologist’ in the family court, the extent of their qualifications and their membership of the society of experts were all publicly available via the Academy. So was their non-regulation by the HCPC, by means of a simple name search.

Public information about an expert

How the reporting of all those publicly available facts alongside the publicly available name of the expert became private information, not to be published because a litigant has legitimately raised a query about those credentials as an adequate basis for an instruction is difficult to understand. We don’t see how mere criticism of an expert for holding out and operating as an expert psychologist without being regulated by the HCPC (or even criticism of that expert for not making sufficiently clear that they weren’t so regulated) can give rise to a right of privacy in itself, if it hasn’t tipped into harassment or defamation.

We are therefore puzzled that the strength of Mr Farmer’s submissions on the caselaw and guidance emphasis that a professional witness would normally be identified are nevertheless apparently outweighed by X’s privacy rights, especially as the judge said:

‘It will be for X to satisfy me that protection of their article 8 rights compellingly outweighs the article 10 rights of Mr Farmer to publish their name as part of publication of my decision’.

An example of what might amount to a ‘compelling reason’ is X v Y [2021] EWHC 2139 (Fam), where a Cafcass guardian had been subject to outrageous and false allegations of child abuse and bestiality. The court in that case was understandably concerned about the impact on her private life, and consequently, the way in which she might be able to fulfil her professional duties toward children in other cases – a very different scenario.      

However, there is no need for X to prove a compelling reason for his/her Article 8 rights to outweigh Article 10 – X just needs these to carry more weight than Article 10 in the final analysis that the court undertakes (that we can’t see here).

DJ Coonan cited a judgment, SW v the UK, in the European Court of Human Rights, as one that brought protection of reputation within Article 8 rights. There’s no link in the Croydon judgment but you can read about that case here. It’s correct that the ECtHR said that Article 8 might stretch to protecting your business reputation, but again, we think that the social worker in SW suffered a great deal more interference with her private life than X might. In SW, the Family Court judge had made inappropriate findings that the social worker had lied about children to the court, and the social worker had not been afforded due process before those findings were disseminated to colleagues and employers. This experience had triggered post-traumatic stress disorder; anxiety and depression, stress-induced fibromyalgia and long term unemployment. We can’t see that X’s situation resembles SW’s in any way.

If, instead of permitting snippets of her reasoning and the underlying facts, the judge had just published her entire judgment from July, it would have been immediately clear that there was no judicial criticism of X, who could have relied on that to respond to or rebut any suggestion to the contrary – and a more healthy public debate might have emerged from the off. The impression now left, regrettably, is that the Family Court has preferred the protection of an expert’s reputation over entirely legitimate debate.

It is also unclear to us why the issues about this expert were not identified sooner, given that there were at least three lawyers involved, who ought to have been aware of the requirements. We don’t know if the CV was misleading, or if it wasn’t checked properly, or if the expert was instructed in the knowledge that he or she was unregulated, without this being made apparent to the lay client and its significance explained, or maybe someone just changed their mind. Nor do we know if the status of the expert was drawn to the court’s attention before the instruction was approved.

What does this mean for other cases in the Family Court?

A judgment at this level of court does not create judicial precedent. DJ Coonan’s decision applies to this case only. It’s unusual for district judges’ cases to ever be published and we are pleased DJ Coonan has published this on BAILII, in furtherance of the principle of open justice.

Nevertheless, the judgment raises some very unsatisfactory issues. Sound knowledge of the role of an expert witness and the task of assessing a family is required to avoid the accidental instruction of someone who is not as well qualified or regulated as might appear from their self-description as a psychologist. As stated in the recent memorandum from the President of the Family Division, the court needs to be particularly astute in these appointments.

There may be differing views about whether a non-HCPC regulated psychologist should be instructed in family court work. However, any expert holding themselves out to do this work must be willing to subject their expertise to scrutiny as a part of the selection process. If they can expect to be named in any published judgment which considers or relies upon their expert work, we see no reason why their publicly available credentials cannot be the subject of reasonable public debate.

It’s concerning to see allegations on social media about ‘fraud’ and ‘bogus experts’ in connection with this case. There is no suggestion in the judgment or the press coverage that X’s CV contained any falsehoods. However, it appears to have misled someone involved in the proceedings to identify X as an appropriate expert when what was required was a better qualified and properly regulated psychologist.       

In the longer term then, the Croydon judgment may be helpful in improving practice in the appointment of correctly qualified and regulated expert witnesses.

A note of caution

On 14 November we amended our related post on experts slightly in connection with Chartered status, and in this post replaced a reference to ‘chartered’ with a reference to ‘practitioner’ psychologist (marked with a * above), 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 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?

Image: Town Hall, Croydon – thanks Neil Clifton, Wikimedia Creative Commons Licence