Re C (‘Parental Alienation’; Instruction of Expert) : Red Light Spells Danger – but not a definitive embargo on instructing unregistered and unchartered psychologists
Articles, News | Tue 14th Mar, 2023
In determining the applicant mother’s appeal against an order made by HH Judge Davies refusing her permission to reopen findings of fact, the President gave guidance relating to the instruction of experts in family proceedings where there is an allegation of parental alienation.
- The proceedings related to two children (aged 13 and 11 years old at the date of the appeal) where post separation of the parents, contact between the children and the father broke down in 2018 leading to cross applications to suspend contact and to enforce to earlier order. Proceedings were reactivated in December 2019, a guardian was appointed and directions allowed for the instruction of a “Child and Adolescent Psychiatrist or psychologist” to consider the reasons and causes of the older child’s unwillingness to see or speak to her father and the younger child’s past unwillingness to do so, and to assess their emotional needs to inform the court as to the appropriate child arrangements. The identity of the expert, Ms A, was only confirmed and agreed after the hearing. Perhaps unsurprisingly, the President found that the process adopted by the court lacked the necessary rigour: the order did not specify the required professional discipline of the expert as between psychology and psychiatry, Ms A’s CV was never submitted to the court and the court order, presumably agreed between the parties, erroneously described Ms A and “Dr A”.
- Ms A undertook the instruction and concluded the children had been alienated against their father by the mother. Her report was plainly influential on HHJ Davies who ordered the children’s removal from their mother’s care with no contact to the mother, pending a fuller hearing which ultimately concluded with limited contact to the mother pending final hearing.
- At the final hearing the Judge gave a carefully reasoned Judgment i) relying on her own analysis of the extensive oral evidence of the parents; ii) weighing up and accepting the evidence of Ms A that both children had been influenced and encouraged by their mother to think negatively of their father and that this had caused significant emotional damage to them; and iii) accepting the guardian’s own analysis (based on the CAFCASS Alienation Tool) and conclusion that without significant change the children’s negative view of the father would become entrenched causing long-term emotional harm. The mother applied for permission to appeal the fact-finding part of the Judgment, inter alia, asserting:
“The judge was wrong in relying upon the report of [Ms A] whom holds herself out as a “psychologist” and gives diagnoses despite not being qualified to do so; the judge was wrong to give any weight to her report given that she does not meet the criteria in Part 25 FPR. In this regard the judge completely failed to deal with the criticisms made on the mother’s behalf of [Ms A] and was wrong in the circumstances to accept the expertise and the recommendations of [Ms A].”
- Peel J refused the application on 1 September 2020 on the basis it was “totally without merit” and in respect of the challenge to Ms A’s instruction, found she was jointly instructed, no appeal against her appointment was made, she produced reports and gave oral evidence, which was challenged. Her expertise was firmly placed in the arena by the mother and it was open to the judge to accept her evidence and to find she was an impressive witness. Further, Ms A’s evidence was only part of the totality of evidence which the Judge considered.
- The mother issued a further application to reopen the issues that had been determined in June 2021 and sought the instruction of an expert, Professor Wang, a clinical psychologist and Chair of the Association of Clinical Psychologists (ACP)-UK to advise upon the professional and / or clinical qualifications of Ms A to undertake the assessments of the adults and / or children in the manner sought by Ms A’s instructions. Prof Wang also sent an uninvited letter to the court setting out his opinion as to the inappropriate instruction of Ms A. The Part 25 application failed and in his dismissal of the application, the Judge summarised the applicable legal context for an application to reopen, relying principally in Re E  EWCA Civ 1447, setting out paragraph 50 of the Judgement of Peter Jackson LJ:
“A court faced with an application to reopen a previous finding of fact should approach matters in this way:
(1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality of litigation on the one hand and soundly-based welfare decisions on the other.
(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.
(3) ‘Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.’
There must be solid grounds for believing that the earlier findings require revisiting.”
- The Judge, in applying the three-stage test in Re E refused the mother’s application but observed that there was a legitimate debate as to the meaning of the label ‘psychologist’ and that, even in light of the more recent guidance, it was accepted that it remains open for a court to appoint a ‘psychologist’ who is not a Chartered Member of the British Psychological Society (BPS) or otherwise registered. The mother further appealed that decision (as well as appealing the decision to impose a filter on further applications until June 2025 and ordering the mother to pay £20,000 towards the father’s costs of the application to reopen the findings).
- The appeal was granted by Peel J on 15 July 2022, not because the proposed appeal had a real prospect of success but ‘for some other compelling reason’, namely that it was in the public interest for the court to consider the instruction of unregulated psychologists as experts in the Family Court in general, and Ms A’s instruction and role in this case in particular.
- Indeed, the mother’s appeal (supported by ACP) focussed on the assertion that the Judge did not sufficiently engage in the process of evaluation when considering the question of reopening the findings. In particular it was said Ms A was not qualified to carry out the assessment as a result of the selection process lacking sufficient rigour. As a result, Ms A was instructed when a clinical psychologist was necessary and that Ms A’s CV was diffuse and confusing which would have made it hard for the parties and court to drill down into her underlaying qualifications. It was submitted that there was a wealth of ‘new information’ which cast doubt on Ms A’s qualifications and ability to report in this case (see para.30 of The President’s judgement and his subsequent discussion of each source of alleged new material).
- The court considered whether it should determine the issue of Ms A’s qualifications to act as an expert psychologist in Family Proceedings. ACP is a representative professional body for clinical psychologists whose aim is to provide strategic and coherent professional leadership to all clinical psychologists in the UK with the task of ensuring the public are protected from those who claim to be “psychological experts” without the requisite qualifications, expertise and regulation. ACP applied to intervene on the basis of their ability to provide:
“…independent submissions on the issues…from the unique perspective of the representative body of psychologists who are qualified to report in cases such as these. It is able to offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.”
- However, ACP went far beyond its permitted remit in the course of the appeal: The President noting that the ACP skeleton is plain in asserting that “[Ms A] should not be holding herself out as a psychologist of any description,”…”[she] was neither qualified nor appropriately trained to make recommendations for therapeutic interventions for the children or adults [in this case], still less to deliver and / or guide the delivery of those interventions by others.” However, the Judge observed there was no authoritative document (such as a statutory instrument or formal regulation) in support of ACP’s claim that Ms A was neither qualified or trained to hold herself out as a psychologist.
- The court found the ACP had made a significant departure, without leave of the court, from the basis upon which the ACP had sought, and were permitted (with the consent of all parties), to intervene in the appeal. The ACP, by providing a granular, negative critique of Ms A, had succeeded in putting before the court, in another form, the evidence that would have been likely to come from its Chair, Prof Wang. The President was unapologetic in his assessment of the ACP’s intervention: “The surprising manner in which the ACP abused the permission that it was given to intervene in this appeal is deprecated”. He concluded that it was neither possible nor fair to embark upon a detailed audit of Ms A’s involvement in this case by measuring her work against the critical opinion advanced by ACP (see para.58).
Was HHJ Davies original decision to refuse the instruction of Prof Wang at first instance now open to challenge?
- The court went on to consider the appeal against the July 2022 refusal to order a rehearing. The President noted there was no appeal against the Judge’s earlier determination in May 2022 not to allow the instruction of Prof Wang. However, given the President had refused to be drawn into consideration of the detailed critique of Ms A, it was necessary to consider the correctness of the Judge’s decision not to conduct a similar exercise in the first instance. In short, he held that the court was already aware of Prof Wang’s opinion set out in his uninvited letter to the court in January 2022, the Judge had experienced Ms A being cross examined and she had the underlaying detail set out in Family Justice Council (FJC) / BPS and ACP guidance. The Judge was not in error for refusing leave to instruct Prof Wang.
- The central issue of the Mother’s appeal, the ACP submissions and Prof Wang’s letter was that Ms A was “unqualified” to call herself a psychologist, to conduct a psychological assessment, to act as an expert in the Family Court and, in particular, to discharge the specific instructions given to her.
- ACP’s case could not be put on the basis of some authoritative document (a statutory instrument or regulation). Instead the ACP’s case was built through a patchwork of factors which, ACP contended, when taken together, exclude Ms A. Principally, only practitioner psychologists who are registered with HCPC, which is given statutory responsibility for the regulation of practitioner psychologists, may use the following titles:
- Clinical Psychologist;
- Counselling Psychologist;
- Educational Psychologist;
- Forensic Psychologist;
- Health Psychologist;
- Occupational Psychologist;
- Sport and Exercise Psychologist;
- Registered Psychologist; and
- Practitioner Psychologist.
- Separately, a psychologist may be a “chartered psychologist” which is a grade of membership of the BPS only open to those with certain post-graduate qualifications and who have been vetted by BPS. Thus an individual who is not registered with HCPC may not use one of the protected titles, and, if not chartered with BPS, may not call themselves a “chartered psychologist”. However, the term “psychologist” is not, of itself, regulated or protected and under current legislation, the HCPC is not authorised to protect the basic title “Psychologist.” Therefore, unless laws of misrepresentation of qualifications, deception and fraud are crossed, it is not illegal for anyone to hold themselves out as being any kind of psychologist (e.g. Assessment Psychologist; Child Psychologist; Criminal Psychologist; Consultant Psychologist etc) provided it is not one of the protected titles.
- ACP further advanced the case that non-regulated psychologists (who are entitled to call themselves “psychologists”) are not qualified to undertake psychological assessments in the Family Court on the basis that a psychological assessment will normally include the administration of one or more psychological assessment tools, most of which are controlled by their publishers to be available only to those psychologists who have the requisite qualifications to use them:
i) The first tier containing tests capable of being purchased by anyone;
ii) The second tier requiring the purchaser to demonstrate and evidence their competency at a relatively high level; and
iii) The third tier requiring (for some publishers) registration with the HCPC as a practitioner psychologist or a psychologist chartered with the BPS, and for others: a doctorate, or certification to practice in a related field to purchase, or certification/full active membership in a professional organisation requiring training and experience in the relevant area of assessment.
- The court heard argument that Ms A was not qualified to purchase the tools which are necessary to assess each on the various elements of the first question posed to Ms A in her instructions. Further, in respect of question 8, which invites advice on therapeutic or other input for the children or parents, ACP submitted that it was not unreasonable to expect that an expert would share the same or substantially similar qualifications to those employed in the NHS who advise of therapy, and that Ms A’s CV did not indicate that she was so qualified. The court declined to determine within the confines of the appeal, whether the ACP’s patchwork of points amounts to a total embargo upon an individual such as Ms A so as to prevent them from being able to provide expert opinion in response to instructions given in this or similar cases. It did, however, accept that the points raised by ACP were of value in flagging up the potential for the qualifications of a candidate for instruction to fall short of what is required. The President considered it appropriate to refer those matters to the FJC for investigation and consider issuing revised guidance.
- Having already concluded that the Judge was correct to not admit Prof Wang’s letter as evidence and was right not to permit his instruction as an expert, the court further concluded the Judge took the correct approach in not taking Prof Wang’s letter into account as one of the factors when hearing the substantive application to reopen the factual conclusions. Indeed, if the Judge had placed reliance upon the letter as part of her decision it would have been vulnerable to a charge of abuse of process. It was further contended that the Judge erred in her approach by ignoring the letter as “information” that, in accordance with the approach in Re B (Children Act Proceedings) (Issue Estoppel)  1 FLR 285, should properly have been considered by the Judge (see para.79). The President refuted this submission on the basis that the “information” to which Hale J (as she was then) referred, in the context of an application to reopen a factual determination must relate to factual information that casts doubt upon the previously found facts. A letter restating an assertion that had been foursquare before the court at the original hearing is not of the same quality as fresh factual information. It was an opinion and the court was not obliged to take into account every piece of new information, but may do so. The President, at para. 81 to 85 set out his clear and unequivocal reasons as to why the appeal must fail.
General considerations to the instruction of psychologists
- The President went on to consider the general question of importance underlaying the appeal: the guidance around the instruction of experts and specifically un-regulated psychologists as experts in the Family Court. The President was clear that what followed was not intended to change or amend what is said in the FJC/BPS guidance to the President’s Memorandum.
- The basic concepts and labels are well known to family practitioners:
- There is no definition of an ‘expert’ in Family proceedings, save for the circular procedural definition at FPR 2010, r23.2(c): “expert” means a person who provides expert evidence for us in proceedings;
- There are statutory exceptions to the term in Children and Families Act 2014 s.13(8);
- Expert evidence will only be permitted if it is necessary to assist the court to resolve the proceedings justly (C+FA 2014 s 13(6));
- 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;
- 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;
- 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:
i. Association of Child Psychotherapists;
ii. The UK Council of Psychotherapy;
iii. The British Association of Counselling and Psychotherapy;
iv. The British Association of Behavioural and Cognitive Psychotherapies;
v. The British Psychoanalytic Council.
- Certain categories of psychologist, the protected titles, may only be used by those who are validly registered under the regulations but the general label “psychologist” is not protected and may be used by an individual whether registered or not. A report by an unregistered person calling themselves a psychologist may be called a psychological report.
- The court considered the open-house nature of the term “psychologist” was unhelpful and potentially confusing. However, that was a matter for the psychological profession and, ultimately, Parliament, whether a tighter regime should be imposed. HCPC, having declined to intervene in the appeal, set out in a letter to the court the registration scheme and HCPC’s role in setting standards of proficiency for practitioner psychologists (see para.95).
- The courts and practitioners must necessarily 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. There is clear and solid ground in the registration scheme, be that HCPC registration or chartered status with BPS. A psychologist’s CV should prominently highlight if they are HCPC registered or not and it is incumbent on an un-registered psychologist to assist the court by providing a short and clear statement of their expertise.
- The court further clarified that it was not for the Supreme Court to prohibit the instruction of any unregulated psychologist: 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 set out in Kennedy v Cordia (Services) LLP (Scotland) UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579).
- In a cautionary note, the President commented:
“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.”
- In relation to the 3 Tiers of psychological assessment tools which require a bespoke or advanced level of understanding from the user, the court considered further evaluation and explanation is required before it may be taken further by the courts. But if it were 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. The President confirmed he was going to invite the FJC to investigate this issue and consider revising its guidance to include reference to this factor if that is justified.
- Future guidance may come in the form of a traffic light indication of expertise to assist the 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 so that readers can, at a glance, see whether an individual is currently registered with the HCPC (and if so what category), or a Chartered Psychologist, or not.
- 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. It will 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 of the need to look more carefully at the underlying evidence of appropriate expertise.
- Finally, in a cautionary note about the terminology of “Parental Alienation” the court referred to the ACP skeleton which stated:
“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 the behaviour that is found to have taken place within the individual family before the court which must be analysed and the impact that that behaviour may have had on the relationship of a child with either or both parents. The court’s focus must therefore be on the ‘alienating behaviour’ rather than any quest to determine whether the label ‘parental alienation’ can be applied.
- Practitioners and Judges alike must continue to conduct a rigorous assessment of a psychologist’s qualifications and training in order to properly evaluate the proposed expert’s ability to undertake the instruction sought in each particular case. However, ultimately, there is no prohibition on the court permitting the instruction of a psychologist who is not a Chartered Member of the British Psychological Society (BPS) or otherwise registered. Pending the FJC’s investigation into whether there are publisher restrictions to psychologists accessing different tiers of assessment tools based on their qualifications and membership / registration, and whether this can be a reliable indicator of expertise, the courts may at some point in the future have a simplified template CV for all psychologists seeking instruction as an expert in the Family Court.