Related Sector: Expert Witness
When is an expert witness “qualified”?
How is the court meant to assess an expert’s qualification?
Can a professional who is not registered by any professional body be an expert witness?
These were some of the questions on which the President of the Family court, Sir Andrew McFarlane, was asked to make a ruling in Re: C  EWHC 345 Fam: an appeal against a refusal to reopen findings of fact which had been made at an earlier hearing.
The case concerned issues of parental alienation – the children had been living with their mother, and their father alleged that the mother had alienated them against him.
The parties had jointly instructed a psychologist (“Ms A”) who provided an opinion that the mother had indeed alienated the children against their father. The judge at the fact-finding hearing had concluded that the mother was an unreliable witness and had taken account of the conclusions reached by the children’s guardian as well as the opinion of Ms A.
The main point raised by the mother on this appeal was that Ms A should never have been appointed as she was not qualified to act as an expert psychologist. This was on the grounds that she was not registered with the relevant regulatory body, the Health and Care Professions Council (“HCPC”).
The HCPC did not intervene on the appeal, despite an invitation to do so. On the issue of registration and qualification, the court had written and oral submissions on behalf of Ms A and on behalf of the Association of Clinical Psychologists (“ACP”).
On the facts of the case, the President refused the mother’s appeal and the findings of fact stand. He made the ruling on the basis that:
- There was a need for finality and stability for the children, so any appeal would have to have very strong grounds.
- The original ruling was soundly reasoned from the evidence in front of the first instance judge.
- The fact-finding judge had been entitled to conclude that the mother was unreliable as a witness and had been entitled to place weight on the guardian’s conclusions.
- The reliance on the opinion of the unregistered psychologist was only one of three lines of corroborative evidence.
Expert witness qualifications
The President refused to make a ruling on whether Ms A was qualified to give evidence as an expert witness. He likened that to a regulator’s decision on whether a registrant is fit to practice, stating that it would be unfair to Ms A if the court were to embark on that exercise without hearing oral evidence from Ms A.However, he did not leave the issue of experts’ qualifications without detailed consideration in the judgment.
During the hearing, the court was referred to a number of source documents:
- The President’s Memorandum on Experts in the Family Courts, 4th October 2021.
- The President’s speech of 8th October 2021.
- The Family Justice Council (“FJC”) and the British Psychological Society (“BPS”) guidance document, “Psychologists as Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations”, May 2022.
The President summarised the current position for psychologists in England and Wales.
Statutory regulation for psychology was introduced in 2001 and the HCPC is the regulator of practitioner or regulated psychologists. The following are protected titles:
- Clinical psychologist.
- Health psychologist.
- Counselling psychologist.
- Educational psychologist.
- Occupational psychologist.
- Sports and exercise psychologist.
- Forensic psychologist.
In addition, there are two generic titles which can be used by someone who holds one of the above and those are:
- Practitioner psychologist.
- Registered psychologist.
The title used by Ms A, “psychologist”, is not a protected title and can therefore be used by anyone, with or without professional qualifications.
The ACP is campaigning for legislation to protect the term “psychologist” and to restrict its use to practitioner psychologists regulated by HCPC. They have produced a document setting out their position, “The Protection of the Public in the Family Courts”, December 2021.
In submissions in this case, the ACP proposed a system based on the sale and usage of psychological assessment tools:
- Tier 1 tools are available to anyone.
- Tier 2 can only be purchased by someone who can demonstrate competency.
- Tier 3 requires a purchaser to have HCPC registration or Chartered membership of the BPS.
The President stated that it is always a matter for the court to rule on whether a person is permitted to give evidence as an expert witness. There is no definition of an expert witness. The Civil Evidence Act 1972, s.3, states that a witness can only express an opinion on an issue on which they are qualified to give an opinion.
So, how does the court determine whether a witness is “qualified”?
At paragraph 97 of the judgment, the President noted:
“HCPC regulation or chartered status in the BPS provide a reliable, one-stop method of authentication”.
Registration, in other words, can be taken as sufficient evidence of qualification.
What of the unregistered psychologist?
The President held that it is not for the court to prevent the instruction of any unregistered psychologist. It is, though, incumbent on the latter to provide a short and clear statement of their relevant expertise so that the court can come to a decision.
He suggested a process for the courts, and the proposed experts, to follow in those circumstances.
It may be that a template could be established that sets out the basic qualifications of any psychologist – creating an “at a glance” guide. This could show:
- Whether the expert is currently registered with the HCPC (and in which category); or a Chartered Psychologist.
- A short and clear display of formal qualifications, posts held and published work.
If the three-tier structure run by the publishers of assessment tools is thought to be a “valid indicator” (contended for by the ACP), that could also form part of the template.
The President did not mandate the template; however, it is currently a suggestion to explore. He has referred the issue of unregulated psychologists to the Family Justice Council to consider and, if appropriate, consult on, with a view to amending their current guidance.
No timetable has been set down for that process to begin.
What should the courts, unregistered experts and instructing parties do in the meantime?
It would be wise to take the President’s suggestions on board. Experts should set out their status clearly and then go on to clarify their relevant qualifications and experience. In the light of this judgment, and the likely direction that this issue is taking, judges are likely to be scrutinising the qualifications of the experts much more closely and experts need to be ready for that scrutiny.
To help expert witnesses carry out their work in compliance with the rules, Bond Solon offers a variety of courses, such as Discussions Between Experts, Excellence in Report Writing and Law & Procedure (civil, criminal, and family law options). Please click here to view our full suite of courses.
Author: Nicholas Deal
This article was first published on Friday 24th March