Individuals who ‘hold themselves out to be psychologists’ but who are not registered or chartered should not be instructed to provide assessments in proceedings relating to children, the president of the Family Division has said in a ruling following a 'parental alienation' case.
In Re Y (Experts and Alienating Behaviour: The Modern Approach) a mother brought a Part 18 application under the Family Procedure Rules 2010 to set aside earlier findings which included the court’s acceptance ‘in full’ of the conclusions of an expert, Melanie Gill. Gill had been instructed as a single joint expert psychologist to undertake a specialist family assessment.
The mother, who was not allowed any contact with her children until a further order, disagreed with Gill’s report, which included findings of alienation.
Gill ‘described herself as a 'psychologist, forensic assessor and forensic consultant (to policy makers/media, institutions) with her own practice'. However she does not have a clinical or therapeutic practice and is ‘neither a chartered psychologist, nor registered with the Health and Care Professions Council’, Sir Andrew McFarlane, president of the Family Division said.
In what he described as ‘firm’ guidance on instructing expert witnesses, he said: ‘In future, permission should not be given under [Children and Families Act 2014], s13 for the instruction of an expert ‘psychologist’ who is neither registered by a relevant statutory body, nor chartered by the BPS.
Before a potential expert is appointed, ‘good practice’ would mean the individual is asked to state whether they ‘hold an HCPC protected title’ and what it is before any order is made to appoint them an expert, the judge said, adding: ‘The ‘registered or chartered’ requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.’
In the present case, McFarlane said the ‘findings of “fact” made by the judge…which were in reality a finding that he accepted Ms Gill analysis, was based on a mistaken foundation’.
He added that ‘The judge in the present case fell into a basic error by not establishing the factual matrix first, in particular whether there had been domestic abuse, and before considering any expert evaluation.' He concluded that the course taken by the judge in making his core findings of fact 'was fundamentally flawed and must be set aside'.
McFarlane stressed that, although the role of Gill was 'of some importance' in the case, the judgment was not about one person. 'It is, much more worryingly, about the failure of the system to act, as it should have done, in discharging its responsibility to protect the children and to prioritise their welfare needs.'
The judge supported a proposal by the legal representatives that the Family Justice Council create a workng group to examine a 'more proportionate and less costly alternative' to a full Part 18 application.
'The hope is that this process would address gatekeeping (for example by a High Court judge), allocation, funding (in light of difficulties in accessing ‘exceptional funding’), procedure and potential remedies,' the judge said.
Justin Ageros, instructed by family firm Beck Fitzgerald, appeared for the mother, and Jo Delahunty KC and Chris Barnes, instructed by Goodman Ray, for her son.
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