Court of Appeal gives further guidance to family case experts

The Court of Appeal has issued further guidance on experts in family cases after dismissing an appeal brought by a mother over care orders in relation to her three children.

In H (Children: Expertise of Witness) three judges said that when an expert’s qualifications is called into question in another case, it is ‘almost always likely to be more appropriate to make an application to the Family Court than to bring an appeal’.

In the case, the mother claimed the jointly instructed expert psychologist Graham Flatmanhad acted outside the limits of his expertise. When accepting instructions, Flatman disclosed he was facing a tribunal hearing following a complaint to the Health and Care Professions Council by a parent in another matter. The disclosure was not brought to the attention of the court. 

In joint judgment, Sir Andrew McFarlane, Lord Justice Lewison and Lord Justice Peter Jackson dismissed the appeal, finding the judge was entitled to reach the conclusions she did and rely on Flatman’s evidence. There was no ‘serious procedural irregularity’ in Flatman’s instruction and no irregularity arising from his work in this case, the judges said, adding: ‘Even if it were otherwise, we find that the judge’s decision was not unjust because it was securely based on the whole of the evidence, of which Mr Flatman’s opinion was but a part.’

The judges noted the ‘shortcomings in the process', including that the information provided by Flatman about the ongoing complaint was 'not circulated'. ‘We do not excuse these instances of procedural slackness, but they do not amount to a serious procedural irregularity,’ they added.

Issuing guidance, the judges said: ‘The fact that an expert’s qualifications are called into question in one case may prompt parties in other cases to consider mounting a challenge to their own decision. However…such challenges will only succeed where the trial court has accepted evidence from an expert who is later shown to have substantially overreached their expertise with clear consequences for the resulting decision.

‘Where a genuine issue of this kind does arise, it is almost always likely to be more appropriate to make an application to the Family Court than to bring an appeal. The Family Court has the ability to gather up-to-date information when deciding how to proceed.'