Unregulated expert witnesses may soon be banned from giving evidence in family law and children proceedings.
On 14 March, the Family Procedure Rule Committee published a consultation considering changes to the standards required for expert witnesses in family cases. The primary change under consultation is that a new rule, FPR 25.5A, would require an expert witness be a ‘regulated expert’.
1. Regulated expert witnesses
This would mean they had to be regulated by a UK statutory body, appear on a register accredited by the Professional Standards Authority, or be regulated by an approved regulator under the Legal Services Act 2007.
The updated rules include scope for a judge to appoint an unregulated expert in special circumstances, for example in financial remedy proceedings where it may not be possible to instruct a regulated pensions on divorce expert because their profession is not subject to statutory regulation.
However, if permission to appoint an expert who is not regulated is granted, the court must give reasons for its decision.
2. The consultation and the need for the change
The consultation, which includes three questions on the proposed rule changes, is open for responses until 5pm on Friday 6 June 2025.
The background to the change is growing concern over advice given by unregulated psychologists in family proceedings, particularly in relation to the disputed concept of ‘parental alienation’, in which a child is deemed to reject one parent due to manipulation by the other.
In one such case, the President of the Family Division delivered a judgment on the appeal of the instruction of an unregulated psychologist. In it he highlighted the “need for due rigour” in the process of expert instruction.
He also pointed out that the regulation of the title psychologist was a “matter for parliament”, which led to the decision to make changes via the Family Procedure Rules.
Though “psychologist’ is not a protected title, “practitioner psychologist” is, and it is the latter that is regulated by law and registered by the Health and Care Professions Council.
However, at present an expert witness doesn’t have to be a practitioner psychologist to be instructed as an expert, despite growing concern from parliamentarians and campaigners that these experts are being called to give evidence, or offer diagnoses, which they are not qualified to undertake.
The changes, if brought in, would affect all experts appointed to the family courts, not just psychologists.
3. “A watershed moment”
This marks the first time that the courts have proposed regulation as a requirement for being instructed and, as such, it is a watershed moment. The Family Court would be the first to have such a requirement. It is vital to be involved in the consultation, express views across the board and help to identify loopholes in the proposed system or unintended consequences.
Bond Solon trainer