04/12/2023 - UK Article: President of Family Division Gives Guidance on Un-regulated Psychologists as Experts

Guidance on the instruction of un-regulated psychologists as experts in the Family Court has been provided by the President of the Family Division in the case of Re C (Parental Alienation: instruction of expert) [2023] EWHC 345 (Fam). This case involved a mother's appeal against a judge's decision not to allow her to reopen findings of fact that had been made in a previous judgment. The President dismissed the appeal and provided guidance on the matter in paragraphs 86-102 of his ruling. The main argument put forward in support of the appeal was that the expert who had been instructed in the case was unqualified to give evidence on the relevant issues.

According to the President of the Family Division, the main argument in favor of the appeal was that the expert who was instructed in the case was unqualified to provide expert evidence on the issues raised in their instructions, and should not have been instructed if the case had been approached properly. The President went on to provide guidance on the instruction of un-regulated psychologists in paragraphs 86-102 of his ruling.

86. Before leaving these issues, and turning, shortly, to the remaining two elements of the appeal, this in some ways unsatisfactory hearing does provide the court with the opportunity to draw the recent guidance together and to flag up the key points in clear terms. What follows is not intended to change or to amend what is said in the FJC/BPS guidance or in the President’s Memorandum. It draws, where appropriate, on the ACP guidance and on Ms Mills’ [counsel for the Association of Clinical Psychologists-UK's] submissions, but in doing so the court is conscious that this material is generated by a single campaigning association, and is not material emanating from a regulatory body or an office holder/official body within the Family Justice system.

87. I start with basic concepts and labels. There is no definition of an ‘expert’ in Family proceedings, save for the circular procedural definition at FPR 2010, r 23.2(c): “‘expert’ means a person who provides expert evidence for use in proceedings”.

88. Certain statutory exceptions to the term are set out in Children and Families Act 2014, s 13(8):

‘(8) References in this section to providing expert evidence, or to putting expert evidence before a court, do not include references to—

(a) the provision or giving of evidence—

(i) by a person who is a member of the staff of a local authority or of an authorised applicant,

(ii) in proceedings to which the authority or authorised applicant is a party, and

(iii) in the course of the person's work for the authority or authorised applicant,

(b) the provision or giving of evidence—

(i) by a person within a description prescribed for the purposes of subsection (1) of section 94 of the Adoption and Children Act 2002 (suitability for adoption etc.), and

(ii) about the matters mentioned in that subsection,

(c) the provision or giving of evidence by an officer of the Children and Family Court Advisory and Support Service when acting in that capacity, or

(d) the provision or giving of evidence by a Welsh family proceedings officer (as defined by section 35(4) of the Children Act 2004) when acting in that capacity.’

89. Expert evidence will only be permitted in children proceedings ‘if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly’ [C+FA 2014, s 13(6)].

90. An expert witness may give factual evidence on a matter that he is not qualified to give expert evidence upon, but his opinion will only be admissible ‘on any relevant matter on which he is qualified to give expert evidence’ [Civil Evidence Act 1972, s 3]. There is no definition of ‘qualified’ in CEA 1972.

91. Save for those individuals who are excluded from giving expert evidence by C+FA 2014, s 13(8), the question of whether an expert is ‘qualified to give expert evidence’ [CEA 1972, s 3] is a matter for the court in each individual case.

92. The instruction and role of experts in the Family Court is already the subject of extensive coverage within FPR 2010, Part 25 and PD25A-D. In particular:

a) The duties of an expert are set out at FPR 2010, r 4.1;

b) The ‘standards for expert witnesses in children proceedings in the Family Court’ are set out in the Annex within PD25B;

c) There is a list in Appendix 1 to the PD25B standards the statutory regulators applicable to the various UK health and social care professions. It includes the list of ‘protected titles’ regulated by the HCPC;

d) Appendix 2 to the PD25B standards has a list of examples of professional bodies/associations relating to non-statutorily regulated work, this list includes:

- Association of Child Psychotherapists

- The UK Council of Psychotherapy

- The British Association of Counselling and Psychotherapy;

- The British Association of Behavioural and Cognitive Psychotherapies;

- The British Psychoanalytic Council.

93. Certain categories of psychologist, for example ‘clinical psychologist,’, have a ‘protected title’, which may only be used by those who are validly registered under the regulations [see paragraph 66]. 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’.

94. From the perspective of the court, and it may be from a wider public perspective, the open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing. In other fields, particularly medicine, the court is used to a stricter regulatory scheme in which an individual can only call themselves by a professional title, for example paediatrician, or pathologist, if recognition of their expert status is confirmed and monitored through formal regulation and registration. It is, however, a matter for the psychological profession and, ultimately, Parliament, whether a tighter regime should be imposed.

95. In its letter to the court declining the invitation to intervene the HCPC, having described the registration scheme and the HCPC’s role in setting standards of proficiency for practitioner psychologist. The letter continues:

‘The broad use of the term ‘psychologist’ is not a protected title. Beyond the HCPC’s protected titles, any person may call themselves a psychologist. Because the functions of practitioner psychologists are not protected, they may practice as such without the need for registration. … [W]ith no restriction on the use of the title ‘psychologist’ itself, there is nothing the HCPC can do about individuals undertaking the same work as registrants but who simply avoid using a protected title. On 1 July 2022 we wrote to the Director of Workforce at the Department of Health and Social Care to highlight the risks presented by unregulated psychologists including in relation to the provision by them of expert evidence in court proceedings. As noted above, it is ultimately a matter for the Government to determine which roles should be subject to statutory regulation.’

96. The court must, therefore, work with the current, potentially confusing, scheme, but must do so with 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.

97. Courts faced with a potential expert who presents a voluble, unstructured CV should at all times bear in mind that there is clear and solid ground to be found in the registration scheme. A lesson plainly to be drawn from the present case is the need for clarity as to an expert’s qualification and/or experience. The more diffuse and unstructured a CV, the less effective it is likely to be in transmitting information crisply and clearly. In this regard, lawyers, magistrates and judges are lay readers. They need to be able to see with clarity, and in short form, the underlying basis for an individual’s expertise. HCPC registration, or chartered status in the BPS, provide a reliable, one-stop, method of authentication. Where a potential expert is registered with the HCPC as entitled to hold themselves out as an expert under one of the protected titles, this can be taken as sufficient qualification to offer an opinion within that field of practice. Further detail in the CV may assist with the choice of one particular expert over another, but it is the kitemark of HCPC registration which should resolve the question of qualification without more. A psychologist’s CV should, therefore, prominently highlight whether they are HCPC registered or not. It is incumbent on an un-registered psychologist to assist the court by providing a short and clear statement of their expertise.

98. It is not, however, for this court to prohibit the instruction of any unregulated psychologist. The current rules and guidance are clear and contain an element of flexibility. The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying, as it must, the principles reiterated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579) that

“if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

This is not, however, an open house and there is a need for caution. In every case the court should identify whether a proposed expert is HCPC registered. A sensible practice, where the expert is un-registered, is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.

99. A further, potentially important, factor is the restrictive scheme that ACP has described as being applied by the publishers of psychological assessment tools which require a bespoke, or advanced, level of understanding from the user [see paragraph 69]. The description of the three-tier structure in counsel’s submissions was necessarily summarised and requires further evaluation and explanation before it may be taken further by courts, but, if it is correct that publishers do restrict access to a range of valuable tools to those with HCPC registration, this can only enhance the need for the court to understand whether a potential expert is, or is not, registered. I am going to invite the FJC to investigate this issue and consider revising its guidance to include reference to this factor if that is justified.

100. Ms Brereton [counsel for the mother] correctly submitted that there was a need for rigour during the process of identifying and approving an expert for instruction in Family proceedings. Given the potentially confusing use of the title ‘psychologist’, the need for due rigour is underscored.

101. In the present case evidence of a lack of rigour arises from the court indicating in its initial order that either ‘a psychiatrist or a psychologist’ was to be instructed. It is not necessary to do more than state that plainly there is a significant difference between the two. A psychiatrist is a doctor who is a specialist in the diagnosis and treatment of mental illness, whereas a psychologist’s skill is in assessing personality, intellectual functioning and behaviour. Whilst there may be a crossover between the two, their focus, skill and training are different.

102. The difficulties that have arisen in these proceedings, where much time has been taken up at first instance and on appeal in attempting to evaluate Ms A’s qualifications to discharge her instructions, indicate that work should be done to assist parties and the court at the initial stage of choosing an expert by establishing a template into which the basic qualifications of any ‘psychologist’ should be entered. The aim of the template will be for readers to see at a glance whether an individual is currently registered with the HCPC (and if so in what category), or a Chartered Psychologist, or not. Further information, displayed shortly and clearly, should identify any formal qualifications, posts held and published work. If, on investigation by the FJC, the three-tier structure controlled by the publishers of assessment tools is seen as a valid indicator, that too should be included. Such a template might include some easily understood ‘traffic­light’ indication of expertise. A template of this nature would, I believe, greatly assist courts in divining the basic level of expertise of a potential expert witness. It would remain open to the court to instruct any person who it considers is capable of discharging the expert role in each case, but, particularly where a proposed psychological expert is un-registered, the court should be on notice to the need to look more carefully at the underlying evidence of appropriate expertise."

On ‘parental alienation’, the Family President went on to say:

103. Before leaving this part of the appeal, one particular paragraph in the ACP skeleton argument deserves to be widely understood and, I would strongly urge, 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.’

It is not the purpose of this judgment to go further into the topic of alienation. Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”