Experts Must Know the Rules

Related Sector: Expert Witness

The 2022 family law case of M v F & Anor [2022] EWFC 186 has recently been published – a delayed judgment — due to a subsequent hearing on expert anonymity.

Recorder Reed’s judgment is a must-read for all expert witnesses. It sets out the importance of an expert knowing and complying with the rules relating to the presentation of expert evidence. There is also an invaluable commentary on the qualifications required of an expert. This serves to highlight the Family Procedure Rules Practice Direction 25B (and subsequent guidance): “the need for experts to properly and transparently set out their qualifications, regulatory status and expertise in a way that does not give rise to a risk of confusion’’ before accepting instructions”.

Read our summary below for the salient points of this case.

Background

In this case, the family court was asked to consider whether a 14-year-old and her mother should be permitted to move to another country (approximately 125 miles away). One of the issues was the potential risk of the girl entering into a forced marriage.

An application for a “full psychological assessment’’ of the family was made. The parties jointly instructed Dr X to carry out the assessment. Dr X was “an expert in relation to forced marriage and domestic abuse in South Asian communities’’ and an academic psychologist.

Experts’ Core Duties

Paragraph 9.1 of PD 25B states that the expert’s report in children’s proceedings must contain (amongst other things):

1. A statement (verified by a statement of truth) confirming that the expert is aware of the Part 25 of the Family Procedure Rules and the corresponding Practice Direction.
2. A statement confirming that they have complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court — set out in the Annex to Practice Direction 25B.

Dr X’s report contained no such statements. Instead, “there was a statement of truth in entirely different terms, which referred to an unidentified tribunal’’.

Addressing this error in their report, Dr X confirmed that they had only completed ‘’four or five’’ expert reports. They also admitted that they were not familiar with the relevant Practice Directions, highlighting their lack of experience as an expert witness and their lack of knowledge of the responsibilities and duties expected of them as an expert witness.

Recorder Reed did not accept this excuse, stating that ”it is a core duty of any expert instructed in proceedings…to read instructions, to read all documents and to be familiar with the applicable rules and practice directions’’.

While he commented that the incorrect declaration should have been a ”red flag to the lawyers in the case’’, he was satisfied with the letter of instruction sent to Dr X.

Addressing Dr X’s ‘’limited experience in giving evidence in this specialised forum’’, he stated that had Dr X read the signposted materials, this would have provided all the assistance required to prepare the report and give evidence.

The Right Expert?

Recorder Reed then carried out an analysis of Dr X’s evidence and whether they were the right expert to provide the ‘’full psychological assessment’’ for this case.

Although he was satisfied by Dr X’s ‘’obvious expertise in relation to forced marriage and domestic abuse in South Asian communities’’, through scrutiny of Dr X’s CV, Reed ascertained that ‘’Dr X’s experience was as an academic not a practitioner’’ and therefore Dr X was not registered with the HCPC.

While the Recorder confirmed that registration is not a mandatory pre-requisite for a psychological expert, he concluded that the assessment required in this case would have been better suited to a practitioner psychologist (who would have to be registered). Dr X was not a clinical psychologist and, therefore, not qualified to make a diagnosis. Had the case required a “simple exposition of the way in which cultural or religious issues work to give rise to risks around forced marriage or honour-based abuse’’, Dr X’s instruction would have been merited.

The Recorder went on to remind the court of paragraph 4.1 of Practice Direction 25B, which states that it is a duty of an expert in children proceedings (amongst other things):

1. To comply with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to this Practice Direction.
2. To answer the questions about which the expert is required to give an opinion.
3. To confine the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert's expertise (skill and experience).
4. Where a question has been put which falls outside the expert's expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved.

He then highlighted several examples of Dr X acting in contravention of these duties. Instances where in evidence (and in their report) Dr X failed to address the questions posed. And crucially the fact that Dr X failed to consider or disclose what became clear during the trial, that they did not have the competence and expertise of a ‘practitioner forensic psychologist or a clinical psychologist’’.

Summary

Recorder Reed was clear that “Dr X acted in good faith in carrying out their assessment and in giving evidence’’ and “had no intention to confuse or mislead’’. However, he was also clear that Dr X did not have the right expertise to act as an expert in the case and failed to comply with the rules and guidance relating to expert evidence.

Whilst it is the responsibility of court and the instructing lawyers to ensure that any instruction/engagement of an expert falls within the competence and expertise of that expert, experts must also be aware that this duty falls within their remit as well.

This article was first published on 05 May 2023. 

Author: Myron Owusu