Neutral Citation Number: [2023] EWHC 345 (Fam)

Case No: FA-2022-00227

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/02/2023

Before :

SIR ANDREW McFARLANE (PRESIDENT OF THE FAMILY DIVISION)

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Re C (‘Parental Alienation’; Instruction of Expert)

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Ms Joy Brereton KC and Mr Christopher Barnes (instructed by Beck Fitzgerald) for the
Mother
Charles Hale KC and Mr Frankie Shama (instructed by Thomson Snell & Passmore) for
the Father
Mr Andrew Bagchi KC Ms Jessica Lee and Mr Luke Eaton (instructed by TV Edwards
LLP) for the Expert
Ms Barbara Mills KC and Ms Charlotte Baker (instructed by Dawson Cornwell LLP ) for
the ACP UK
Mr Martin Kingerley KC and Mr Ben Mansfield (instructed by Pepperells Solicitors) for
the r16.4 Guardian

Hearing date: 6th December 2023

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Approved Judgment
This judgment was handed down remotely at 10.30am on 21st February 2023 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.

.............................

SIR ANDREW MCFARLANE P.

This judgment was delivered in private. The judge has given leave for this version of the
judgment to be published. The anonymity of the children and members of their family must
be strictly preserved. All persons, including representatives of the media, must ensure that
this condition is strictly complied with. Failure to do so will be a contempt of court.
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Sir Andrew McFarlane P:

1. This is an appeal against an order, made by HH Judge Lindsay Davies on 15 June 2022,
refusing an applicant mother permission, in the course of extended private law children
proceedings, to reopen findings of fact that had been made in a judgment handed down
on 24 June 2021. The appeal also challenges the judge’s decisions, firstly, to impose a
restriction on further applications under Children Act 1989, s 91(14) [‘CA 1989’] and,
secondly, to order the mother to pay costs.

2. Although the substance of the appeal relates to the fact finding undertaken in this
particular case, the central issue raised is of more general importance and relates to the
instruction of experts in proceedings where there is an allegation of parental alienation.
The primary assertion being made in support of the appeal is that, if the case had been
approached properly, the expert who was instructed in these proceedings should never
have been instructed as they were unqualified to give expert evidence on the issues
raised in their instructions.

3. In addition to the parties to the proceedings, the court has been assisted by written and
oral submissions made by leading counsel on behalf of the instructed expert [‘Ms A’],
and also by leading counsel instructed on behalf of the Association of Clinical
Psychologists- UK [‘ACP’]. The ACP is not a regulatory body. The relevant regulatory
body is the Health and Care Professions Council [‘HCPC’]. The HCPC declined to
intervene in this appeal.

The Background

4. Although it will be of central importance to the parties, the factual background has not
been at the forefront of the appeal and it is not necessary to explain the lengthy course
of this litigation in any great detail.

5. The proceedings relate to two children who are now aged 13 and 11 years old.
Proceedings under CA 1989 were commenced almost immediately following parental
separation in 2014. Final orders were made in 2015 authorising the children’s mother
to relocate within England and Wales on the basis that the children would live with her,
but spend time with their father.

6. Contact between the children and their father broke down in late 2018 leading to cross
applications to suspend contact and to enforce the earlier order. The court process was
suspended for a time to allow for therapy and conciliation. The attempt at a consensual
outcome was not successful and the proceedings were reactivated in December 2019.
The children were joined as parties and a children’s guardian was appointed.

7. In an order, dated 25 March 2020, making extensive provision for interim contact and
case management, a recorder made the following provision for the instruction of an
expert:

‘Expert evidence

24. The father made an application pursuant to Part 25 Family Proceedings Rules
2010 for the instruction of a Child and Adolescent Psychiatrist or child
psychologist.
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25. The mother and the Guardian agreed that the instruction of an expert was
necessary.

26. The Court considers that it is necessary to instruct an expert 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 assess their emotional
needs to inform the Court as to the appropriate child arrangements that should be
put in place for each child. Without this expert evidence there will be a lacuna in
the evidence which will prevent the Court from reaching decisions in the children’s
best interests.

27. The discipline of the expert shall be either a child and adolescent psychiatrist
or a psychologist. Permission to the expert to see both children.

28. Dr [A], psychologist, shall be jointly instructed on behalf of all parties to

undertake an assessment of the family.’

This court has been told that the identity of the expert, Ms A, was only confirmed and
agreed after the hearing and that paragraph 28, which mistakenly refers to Ms A as ‘Dr
A’, was therefore added to reflect that development. It seems clear that the process
adopted by the court at this time lacked necessary rigour. The order did not specify the
required professional discipline of the expert as between psychology and psychiatry. It
does not seem that Ms A’s CV was ever submitted to the court and the court order,
presumably agreed between the parties’ legal advisers, erroneously described Ms A as
‘Dr A’.

8. Ms A undertook her work in the summer of 2020. Her report, which was filed on 12
October 2020, was plainly influential. She concluded that the children had been
alienated against their father by their mother. She considered that the eldest child
showed signs of being a severely alienated child and that her younger sibling was on
the same trajectory.

9. At a hearing on 16 October, HHJ Davies ordered the removal of the children from their
mother’s care and directed that there should be no contact between mother and children
pending a fuller hearing on 29 and 30 October. On 30 October, having heard oral
evidence from Ms A, the judge ordered that the eldest child should weekly-board at her
school and have her home base with her aunt and the youngest child should live with
the father. Limited contact was afforded to the mother pending the final hearing.

10. The final hearing in February 2021 had to be adjourned after two days due to the
unfortunate illness of the children’s guardian. It concluded in June 2021. In a full and
closely reasoned judgment, delivered on 24 June, the judge, firstly, gave her own
analysis of the extensive oral evidence given by the two parents. The judge concluded
that the mother’s evidence was neither reliable nor credible, in contrast to that of the
father, and the judge made a number of significant adverse findings about the mother’s
behaviour in the context of potential alienation. Secondly, the judge weighed up, and
ultimately accepted, Ms A’s conclusion that both children had been influenced and
encouraged by their mother to think very negatively of their father and that this had
caused significant emotional damage to them. Thirdly, the judge accepted the children’s
guardian’s own separate analysis (in part based on the CAFCASS Alienation Tool) and
the guardian’s conclusion that, without significant change in the children’s negative
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view of their father, it would become entrenched causing long-term emotional harm. It
is of particular note that the judge stated that she had found the guardian’s independent
analysis ‘compelling’. She, therefore, made orders for both children to live with their
father and, after a period of suspension to allow for settling in, contact with their mother
was to develop in a structured manner.

11. The mother applied for permission to appeal the fact-finding part of the judgment.
Permission to appeal was refused by Peel J on 1 September on the basis that the
application was ‘totally without merit’. It is of note that one of the proposed grounds of
appeal was:

‘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].’

12. In his ruling Peel J said this of the proposed challenge to the instruction of Ms A:

“The complaints made by the mother about the expert are not sustainable. She was
jointly appointed in March 2020 and 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. It was open to the judge to accept her
evidence and to find that she was an impressive witness. Further, her evidence was
only one part of the totality of the evidence which the judge considered.”

13. A further hearing took place before HHJ Davies on 3 February 2022. In her judgment
on that day, the judge varied a number of details within the arrangements for the
children’s care and welfare and she also flagged up the potential for the court, at a
subsequent hearing, to impose a filter on further applications by making an order under
CA 1989, s 91(14).

14. On 3 February 2022, whilst at court, the mother issued a fresh application to reopen the
issues that had been determined in June 2021 in these terms:

‘Application to re-open the finding of fact and welfare determination to review the
safety of the findings made on parental alienation in light of concerns about the
significance attached to Ms [A]'s opinion as set out in her assessment, reports and
in oral evidence, and its consequences.’

15. On 20 April 2022, the mother issued an application under FPR 2010, Part 25 for
permission to instruct an expert in support of her application for the June 2021 findings
to be reopened. The sole focus of the expert’s instruction was to advise upon the
professional and/or clinical qualifications of Ms A to undertake the assessment of adults
and/or children in the manner sought by Ms A’s instructions. The expert to be instructed
was Professor Wang, a clinical psychologist who is the chair of the ACP. The judge
considered the application on paper, after receiving written submissions from all three
parties. The judge had also seen an unsolicited email which Prof Wang had sent to the
court in January 2022, in which he set out his view of the expertise of Ms A. In an order
issued on 10 May, the judge concluded that it was not necessary to have Prof Wang’s
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expert opinion before the court when determining the application to reopen her findings.
The Part 25 application was dismissed.

The decision under appeal

16. The mother’s application for the findings to be reopened was heard on 7 June 2022 and
judgment was delivered on 15 June. The mother’s application was opposed by the father
and by the children’s guardian (who had replaced the guardian previously in post, upon
whom the judge had relied in her June 2021 judgment). In addition, the court considered
whether an order limiting further applications should be made under CA 1989, s 91(14).
The judge summarised the applicable legal context for an application to reopen, relying
principally upon Re E [2019] EWCA Civ 1447; in particular she set out paragraph 50
in the judgment 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.”

17. The judge summarised the findings that she had made and stressed that they had been
based upon three separate limbs, namely the evidence of Ms A, the evidence of the
guardian and, thirdly, the judge’s own evaluation of the parents’ evidence.

18. In reaching her decision, the judge considered that the arguments being presented were
the same as those that were before her in June 2021 and before Peel J in September.
She reminded herself of Part 25 and PD25A, she referred to guidance issued by me as
President in October 2021 and to a short reference that I had made to the issue of experts
in parental alienation cases in a speech in Jersey that month. She noted guidance that
had been issued by the ACP in December 2021 and by the Family Justice Council
[‘FJC’] and British Psychological Society [‘BPS’] in May 2022. She noted that Ms A’s
CV indicated extensive experience of reporting in cases of alleged parental alienation.

19. The judge observed that there was legitimate debate as to the meaning of the label
‘psychologist’ and that, even in the 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 BPS or otherwise registered. Applying the three-stage test described in
Re E, the judge held:
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‘32. … First of all, I have no hesitation in finding that the children and the parents
have been in litigation for far too long. They need finality and this litigation must
stop.

33. Secondly, considering the second limb of Re E I conclude as follows. The

resources of the parties, who have been funding this litigation themselves, and the
resources of the court have been taken up with this case for a significant number of
years. The financial and emotional cost to the parties has been immense. Further
time and cost cannot be justified. The children - who love both of their parents -
will not be assisted if the case is once again reopened. The children are thriving in
their schools and they now have the benefit of a relationship with both of their
parents. To have another year of litigation will be damaging.

34. The findings I made a year ago are not accepted by the mother, but it appears
that the decision I made has in fact benefited both of the children so that they can
continue to grow up having a good relationship with both of their parents. The
mother cannot accept any responsibility for the damage that has been done to the
children over the years. The findings are, and remain, significant to the children.
The findings I made have enabled the children the freedom to develop good
relationships with all of their family (maternal and paternal). Any further evidence,
that would be based on a new report by new expert, who would have to revisit all
of the past, would not assist the children. This is not a case in which new evidence
has come to light since I made my decision.

35. The third limb of Re E is this. There is no reason to think that a rehearing of the
issue will result in any different finding from the decision I made a year ago. The
issues were fully explored during the 2021 hearings and in the application for
permission to appeal. There are no solid grounds for believing that the earlier
findings require revisiting.

36. In these circumstances, I must refuse the mother’s application to reopen the
final hearing and therefore refuse to order a rehearing.’

20. The judge went on to make an order under CA 1989, s 91(14) imposing a filter on
further applications until June 2025. In doing so she relied on her own appraisal and the
recommendations of the guardian that the children needed a period of stability to settle
to the arrangements that were in place.

21. Finally, following consideration on paper of an application for costs made by the father,
on 15 July 2022 the judge directed that the mother must contribute £20,000 towards the
father’s costs of the application to reopen the findings.

The Appeal

22. The mother’s appeal against the decision to dismiss the application to reopen the
findings is based on grounds which, in summary, are:

i) the judge was wrong to determine the application without expert evidence as to
Ms A’s qualifications to discharge her instructions;
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ii) the judge was wrong to hold that there was ‘no new evidence or information’
where:

a) the court ignored the communication from Prof Wang;

b) the judge failed to commission a statement/report from the former

guardian;

c) the judge failed to place any weight on recent guidance issued since the
primary hearing;

iii) the judge failed to apply FPR 2010, PD25B properly:

a) by equating the Academy of Experts with bodies such as the BPS and
the ACP;

b) by failing to have regard to the issue of public protection;

iv) the judge failed to have regard to specific criticisms of Ms A’s work in the
present case;

v) the judge failed to have regard to the children’s proper interest in there being an
investigation into the adequacy of the findings.

23. Permission to 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.

24. The appeal is opposed by the children’s father and the guardian, but it is supported by
the ACP. Indeed, as I will describe in due course, the prosecution of the appeal was in
reality taken over by Ms Barbara Mills KC, leading counsel for the ACP. Mr Andrew
Bagchi KC, leading counsel for Ms A, made submissions in support of Ms A’s position.

25. At the oral hearing, the mother’s appeal was presented by Ms Joy Brereton KC, leading
Mr Chris Barnes. Ms Brereton accepted that the judge did not err in her description of
the approach required by the law to an application to reopen, her error was in not
engaging sufficiently in the process of evaluation.

26. Ms Brereton was critical of the process by which Ms A had been selected and appointed.
It was not sufficiently ‘rigorous’ and Ms A’s qualification to undertake the instructed
work was not questioned until she was cross examined by leading counsel during the
final hearing. By then damage had been done as Ms A’s report had been sufficiently
influential to cause the judge to direct the removal of the children from their mother at
the first interim hearing following its receipt.

27. Ms Brereton submitted that there were clear and good reasons, as required by authority,
to require the judge to direct a rehearing. In short, Ms A was ‘not qualified to carry out
the assessment’ and, as a result, the fact finding determination was erroneous. For the
sake of the children, therefore, the findings cannot stand and must be reopened.
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28. In asserting that Ms A was not qualified to conduct her assessment, Ms Brereton
expressly relied upon the submissions to be made by ACP.

29. In terms of the lack of a sufficiently rigorous process, Ms Brereton explained that the
father had applied for the instruction of a psychiatrist or a psychologist. There is plainly
a degree of difference between these two professional disciplines and, submitted Ms
Brereton, a need for the court to be clear which is the appropriate one for the particular
case. It is not, however, submitted that it was inappropriate for a psychologist to be
instructed in the present case; indeed the ACP case is that the expert should have been
a clinical psychologist. Ms A had been selected by the guardian and put forward,
erroneously, as ‘Dr’ A. Ms Brereton told the court that a recommendation from a
guardian is not often questioned. Ms A’s CV is extensively set out. The CV is a diffuse
and confusing narrative of attendance at courses and other activities. It would have been
hard for the parties and the court to drill down to see what her underlying qualifications
were. Ms Brereton urged this court to give guidance on how the process of information
gathering before a choice of expert is made can be tightened up.

30. In support of ground (ii), Ms Brereton spelled out the ‘new information’ which, she
submitted, cast doubt on Ms A’s qualifications and her ability to report in this case. The
new information consisted of:

a) A memorandum from the President of the Family Division issued on 4

October 2021 on ‘Experts in the Family Court’ (see paragraph 31
below);

b) A quotation from a speech that I gave in Jersey on 8 October 2021 (see

paragraph 32);

c) Guidance issued by the ACP in December 2021 (see paragraph 33);

d) Guidance issued jointly by the Family Justice Council [‘FJC’] and the
BPS (see paragraph 34);

e) A letter from Prof Wang (see paragraph 36); and

f) The children’s guardian had expressed some concern about the weight
to be attached to Ms A’s report at a hearing in February 2022.

31. Taking each of these sources of information in turn, on 4 October 2021 a President’s
Memorandum: Experts in the Family Court was issued. The main body of the
Memorandum provided an explanation of basic principles, however the final
paragraphs dealt with qualification and regulation:

‘Duties to the Court and Professional Standards

FPR PD25B sets out the duties of the expert to the court. PD25B para 4.1(b)
requires an expert to comply with the Standards set out in the Annex. These include
requirements to have been active in the area of work; to have sufficient experience
of the issues; to have familiarity with the breadth of current practice or opinion;
and if their professional practice is regulated by a UK statutory body (see Table 1)
that they are in possession of a current licence, are up to date with CPD and have
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received appropriate training on the role of an expert in the family courts.

Psychologists are mainly regulated by the Health and Care Professions Council.
The Family Justice Council has issued guidance jointly with the British
Psychological Society on providing expert reports in the family courts [reference
to 2016 guidance now superseded].

Where the expert is not subject to statutory registration (i.e. child psychotherapists)
para 6 of the Annex identifies alternative obligations to ensure compliance with
appropriate professional standards.

Conclusion

The Family Court adopts a rigorous approach to the admission of expert evidence.
As the references in this memorandum make plain, pseudo-science, which is not
based on any established body of knowledge, will be inadmissible in the Family
Court.’

32. I made reference to this guidance in an address given in Jersey on 8 October 2021:

“One specific problem which is said to arise in cases of domestic abuse is the not
infrequent counter assertion that the person making allegations of abuse is
themselves causing harm to the child by ‘parental alienation’. This is a complex
and sensitive issue, and in the short time available in this address I seek to make
one and one point only about it. Where the issue of parental alienation is raised and
it is suggested to the court that an expert should be instructed, the court must be
careful only to authorise such instruction where the individual expert has relevant
expertise.

In this regard I draw attention to the fact that I am about to issue a General
Memorandum on the topic of the instruction of experts. Within that I stress that an
‘expert must demonstrate to the court that he or she has the relevant knowledge and
experience to give either opinion evidence, or factual evidence which is not based
exclusively on personal observation or sensation’. I also emphasise that an expert
must be independent and impartial and that ‘the court will refuse to authorise or
admit the evidence of an expert whose methodology is not based on any established
body of knowledge’. I conclude by saying:

‘The Family Court adopts a rigorous approach to the admission of expert

evidence. As the references in this memorandum make plain, pseudo-science,
which is not based on any established body of knowledge, will be
inadmissible in the Family Court.’”

33. In December 2021, ACP issued guidance ‘The Protection of the Public in the Family
Courts’. These extracts from the Executive Summary describe the central thrust of the
document:

‘In terms of Psychologists, only a practitioner psychologist (currently registered

with HCPC [‘Health and Care Professions Council’]) such as a Clinical
Psychologist can give a diagnosis or formulation or make recommendations about
therapeutic interventions. Some, but not all practitioner psychologists, can make
recommendations about capacity.
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ACP-UK is aware of several cases in which “psychological experts” who are not
HCPC registered have suggested inappropriate diagnoses and made
recommendations for children to be removed from their mothers based on these
diagnoses.

ACP-UK wishes to support those instructing experts for the courts to understand
the importance of using HCPC registered practitioner psychologists and is
available for consultation on such matters.

More broadly, to protect the public from harm, the ACP-UK is campaigning for
legislation to protect the term “psychologist” and restrict this to use by practitioner
psychologists regulated by the HCPC.’

34. In May 2022, guidance was jointly re-issued by the FJC and BPS: Psychologists as
Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies
and Expectations. It helpfully and succinctly described the current basis for registration
and regulation of psychologists, together with an explanation of various categories of
specialist and the importance of explicit job titles:

‘3.1 Statutory regulation for psychology in the UK was introduced in 2009 and the
Health and Care Professions Council (HCPC) is the regulator of practitioner, or
registered, psychologists. Practitioner psychologists who have the qualifications
necessary to meet the stringent criteria for statutory regulation with the HCPC, are
registered with the HCPC with one (or more) ‘protected’ titles. The legislation
protects seven titles: Clinical Psychologist, Health Psychologist, Counselling
Psychologist, Educational Psychologist, Occupational Psychologist, Sport and
Exercise Psychologist, and Forensic Psychologist. In addition, the two generic
titles – Practitioner Psychologist and Registered Psychologist – are available to
registrants who already hold one of the seven ‘specialist’ titles. See Appendix 1 for
a detailed description of protected titles.

3.2 These titles are protected by law. Anyone who uses a protected title must be
registered with the HCPC. Article 39(1) of the Health Professions Order 2001
makes it a criminal offence for a person, with intent to deceive, to state that they
are on the HCPC Register; to use a designated title to which they are not entitled;
or to say falsely that they have qualifications as a practitioner psychologist. An
unregistered person may be committing an offence even if they do not use the
designated title directly, such as describing the service they provide as ‘clinical
psychology’ or ‘forensic psychology’.’

The FJC/BPS 2021 guidance cannot strictly be described as ‘new’ material which has
become available since the fact finding judgment as it is, in effect, a relatively modest
revision of guidance issued in 2016.

35. The FJC/BPS guidance accepts that courts may appoint psychologists who are neither
registered with the HCPC nor chartered members of the BPS as experts:

‘3.6 … Should a court appoint an individual who does not use an HCPC protected
title, it should be aware that this would fall outside of the regulatory framework of
the HCPC, e.g. to check qualifications and current fitness to practice. While a
Chartered Psychologist and non-Chartered Psychologist would fall within the
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accountability of the BPS, if they are members of the BPS, e.g. code of ethics and
conduct, they would not fall within the HCPC regulatory authority. Psychologists
who are not HCPC registered should make it clear when accepting instruction, as
should those who are not Chartered Members of the BPS.’

‘3.8 Courts should expect that all psychologists based in the UK providing evidence
in family proceedings are regulated by the HCPC (if they are practitioners) and/or
that academic psychologists have Chartered membership with the BPS.

3.9 It remains at the discretion of the court to appoint individuals who are not
eligible for Chartered membership of the BPS or qualified for registration with the
HCPC but that the court determines have relevant psychological knowledge or
training. However, it should be made clear in orders and letters of instruction that
these individuals are not being appointed as psychologist experts but under the
auspices of other professional frameworks, e.g. Independent Social Workers with
additional psychological qualifications or Psychotherapists. These individuals are
also distinct from psychologists in relation to their remuneration rates paid by the
Legal Aid Agency.’

36. The letter that is relied upon from Prof Wang, is undated, but was sent to the court in
January 2022. It is confusingly headed with the name of an individual who is not a
child, parent or otherwise involved in this case. It reads in full:

‘I write to state that I have examined Ms [A]’s CV and confirm that she has no
recognised substantive postgraduate qualifications, is unregulated, should not be
calling herself a psychologist, should not be carrying out psychological
assessments and making diagnoses; and while I acknowledge the appointment of
expert witnesses is at the Court’s discretion, in my opinion she should not be acting
as an expert in court. She does not possess any doctoral qualification, is not a
medical practitioner and therefore should not be referred to as “Dr” [A].’

37. Drawing these various sources together, Ms Brereton submitted that the most important
was the letter from Prof Wang. More generally, the judge should have taken sufficient
from the new material to be cautious about the role of Ms A and the need to reopen the
case. In contrast, Ms Brereton submitted that the judge did not go into detail and
adopted a superficial approach. There was, she argued, sufficient information before
the court for the judge to open the gateway and direct a rehearing.

38. It is to be noted that neither in the Skeleton Argument, prepared by previously instructed
leading counsel, nor in oral submissions, was the appellant’s case particularised as to
which findings were to be the subject of a rehearing. No submissions were made as to
the separate findings of fact made by the judge as to the parents’ past behaviour and
presentation in court. Neither was there any reference to the free-standing analysis
conducted by the, then, guardian. The case was put generally and on the basis that
because, it is said, Ms A was not qualified to act as an expert the whole process was,
thus, contaminated and must be reopened.

39. Further, in relation to the reopening issue, Ms Brereton, unusually, did not take the
court to the judge’s judgment under appeal and therefore did not make specific
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submissions as to the approach of the judge which was that Ms A’s contribution to the
case was but one of three limbs upon which she had based her overall conclusions.

40. On behalf of the father, Mr Charles Hale KC, who had appeared at many of the hearings
before the judge, submitted that the judgment under appeal is thorough and clear. There
is, he said, no indication that the judge fell into error. The question of Ms A’s
qualification to act as an expert had been fully tested during the main hearing. Nothing
new is now raised and the judge was justified in not ordering a re-hearing.

41. Mr Hale took the court through the history of the case. He stressed, in particular, that,
at the interim hearing immediately following receipt of Ms A’s report, the judge did not
determine the long-term issue of permanent removal from the mother’s care. She only
had made interim arrangements, specifically to cover half-term. Removal pending
determination of long-term arrangements at final hearing was only determined after the
two day hearing two weeks later .. Ms A’s report was not determinative, but simply a
part of the significant jigsaw of evidence before the court.

42. On the appeal more generally, Mr Hale submitted that the ‘new information’ was (a)
all properly considered by judge and covered in the judgment, (b) not capable of
amounting to information which could undermine the original decision and (c) not
information, even if relevant, which actually went to undermine the facts that were
found by the judge.

43. Mr Hale supported the judge’s decision to refuse the instruction of Prof Wang as an
expert. The mother’s application for Prof Wang to be a single joint expert was
misconceived given the very strong opinion that he had already expressed as to Ms A’s
qualifications. In any event, the content and basis of Prof Wang’s opinion were before
the judge during the fact-finding hearing as they formed the substance of leading
counsel’s cross examination and submissions on the issue of expertise.

44. Mr Hale stressed the importance and value of the three pillared approach taken by the
judge in reaching her overall determination. The judge’s adverse findings against the
mother stood separately from the analysis of Ms A, as did the separate evaluation made
by the guardian. On the central point in the appeal, namely that Ms A was not qualified
to act, Mr Hale submits that the case is fundamentally flawed due to the absence of any
bright-line statement of law or regulation to that effect. The appropriateness of
instructing a non-registered and/or non-regulated psychologist sits in a grey area about
which there has been professional debate over recent years. The current guidance is no
more than guidance; it is not the law. There was no legal prohibition preventing the
instruction of Ms A and that, submitted Mr Hale, was fatal to the prospects of this
appeal.

Submissions on behalf of ACP-UK: Should this court now determine the issue of
Ms A’s qualification to act as an expert psychologist in Family Proceedings?

45. The ACP-UK 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. ACP has taken as part of its role the task of ‘ensuring that the
public are protected from those who claim to be “psychological experts” without
requisite qualifications, expertise and regulation’.
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46. ACP applied to intervene in this appeal on the following basis:

‘The ACP-UK does not propose to make submissions on the disputed factual issues
between the parties or merely to repeat the submissions of others, being mindful of
the warnings given by Lord Hoffman in E v The Chief Constable of the Royal Ulster
Constabulary (Northern Ireland Human Rights Commission intervening) [2008]
UKHL 66, [2009] 1 AC 536.

Rather, the ACP-UK seeks to assist the Court by providing independent

submissions on the issues that arise in the present case 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.’

It was that on that basis (which was agreed by the parties) that I granted permission to
intervene.

When granting permission to appeal, Peel J had identified the focus that was to be
brought to bear on Ms A’s qualification:

“Second, by reference to the instant case, the court should consider whether it was
appropriate to instruct [Ms A] and/or receive written and oral evidence from her
and/or attach weight to her conclusions in circumstances where (1) she has no
recognised substantial post-graduate qualifications, (2) she is not registered as a
practitioner psychologist, (3) she is not subject to professional regulation, and (4)
the opinion of the President of the Association of Clinical Psychologists UK is that
she should not be acting as an expert in court proceedings.”

47. The ACP skeleton argument, prepared by Ms Barbara Mills KC, leading Ms Charlotte
Baker, for the appeal hearing put the ACP position unambiguously:

‘2. Having reviewed the papers with great care, the striking feature noted by the
ACP-UK and what it is submitted must be this Court’s first finding and starting
point, is that this is not a case of an expert who has discharged their role poorly or
gone beyond their remit, but is a stark and troubling example of an individual who
holds herself out as an expert but has neither the qualifications nor the relevant
skills to so hold. This is, therefore, an example of the real and serious consequences
that follow when a person who is not an expert at all is brought in, by order of the
Family Court, to assess and make recommendations about a family such as this
one. The case for and importance of proper qualification and regulation is fortified
by reference to what went wrong in this case.’ [original emphasis]

7(b) It was not appropriate for Ms [A] to have been instructed to report in these
proceedings, and no weight can or should be attached to her conclusions. She is not
qualified (clinically or otherwise) to either assess the family in the way she has
purported to assess them nor to answer the questions posed in the letter of
instruction dated 13th May 2020.
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7(c) The present case is a concerning example of the consequences of instructing

an expert who is not, in fact, an expert at all, and then acting on their advice. It is a
practice that must swiftly come to an end in the Family Court, or else the Court
itself risks becoming an agent of harm.’

48. The ACP skeleton is plain in asserting that ‘[Ms A] should not be holding herself out
as a psychologist of any description’ … ‘[She] is 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.’

49. Following these broad statements, the skeleton descends into a very detailed critique of
the work undertaken by Ms A in the present case, supported by many specific
quotations from the case papers. The document then moves on to explain that
psychologists who practice in one or more of the protected fields must be registered
with the HCPC, or otherwise be chartered members of the BPS.

50. The ACP urges this court to clarify the impact of paragraphs 3.8 and 3.9 of the May
2022 FJC/BPS guidance so that it is limited to individuals, who happen to have a
psychological qualification, but who are unregistered, and who are to be instructed in
another capacity – for example as independent social workers. Such individuals are not,
it is asserted, ‘psychologists’ and are never to be instructed as such.

51. During Ms Mills’ oral submissions at the first hearing I asked to be taken to some
authoritative document, for example a statutory instrument or formal regulation, in
support of the ACP’s primary contention that Ms A is simply neither qualified nor
trained to hold herself out as a psychologist or to advise on therapeutic intervention in
a case such as this. Ms Mills was obliged to concede that there was no such authoritative
source before the court at that hearing, but that these clear submissions were based upon
her instructions. Ms Mills instructing clients were not in the court room, but were
observing the proceedings remotely. She suggested, and I accepted, that the answer to
that single question could be dealt with in a short document prepared for the second
hearing. The point was therefore left on that basis.

52. To the court’s surprise, ACP responded to the opportunity to submit a short further
document by filing a second skeleton argument running to 30 pages. Paragraph 1
explained the purpose of this further document:

‘This document has been prepared to focus on the qualifications required to answer
the questions posed in the letter of instruction, dated 13th May 2020, and in
particular (with reference to Peel J’s order) whether Ms [A] has demonstrated she
has those qualifications. That analysis is required if the Court is going to reach a
conclusion as to whether it was “appropriate to instruct Ms Al and / or receive
written and oral evidence from her”, per Peel J’s order of 13th September 2022.’

53. At paragraph 2, the skeleton acknowledged that there is no definition of ‘expert’ for the
purposes of Family proceedings, and no definition of ‘psychologist’, beyond the seven
‘labels’ which have statutory protection. These concessions are followed by the
following important concession: ‘whether a person is capable of assisting the Court by
providing expert evidence is therefore a question of fact, not law’.
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54. The remainder of the document purports, by a most detailed analysis, to demonstrate
that it was not appropriate to instruct Ms A. In the course of that analysis, extensive
criticism is made of Ms A’s contribution to the proceedings, both in writing and orally.

55. The ACP-UK second skeleton is of note for a number of reasons:

i) The skeleton represented a significant departure, without the leave of the court,
from the basis upon which (in its own words) the ACP-UK had sought, and were
permitted with the consent of all parties, to intervene in this appeal, which was:

‘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.’

In contrast, the document mounts a detailed critique of Ms A’s CV and her work
in the present case;

ii) The document does not at any point address the issue for which permission to
file a further submission was granted, namely the identification of any statutory
instrument or formal regulation, in support of the ACP’s primary contention that
Ms A is simply neither qualified nor trained to hold herself out as a psychologist
or to advise on therapeutic intervention in a case such as this;

iii) By filing a 30-page, granular, negative critique of Ms A, the ACP succeeded in

putting before the court, in another form, the evidence that would have been
likely to have come from its chair, Prof Wang, if leave to file such evidence had
not been refused by the judge;

iv) ‘The purpose of a skeleton argument is to assist the court by setting out concisely
as practicable the arguments upon which a party intends to rely’ [CPR, PD52A,
para 5.1(1) – emphasis added]. Although formulated as a ‘skeleton argument’,
the second ACP document is, in reality, opinion evidence based upon the
professional knowledge of those who instruct Ms Mills.

56. The surprising manner in which ACP abused the permission that it was given to
intervene in this appeal is deprecated. During the hearing it was necessary to determine
how, if at all, the material submitted by ACP should be considered by the court. For Ms
A, Mr Bagchi stressed that, had those acting for Ms A known of the approach that ACP
intended to take in filing this document, they would have objected. He submitted that it
was plainly wrong for detailed opinion evidence to be placed before the court by way
of written submissions, with Ms A being expected to respond in the same way through
her counsel.

57. Mr Bagchi invited the court to afford little weight to the material submitted by ACP.
He cast ACP as a campaigning organisation with a membership, he said, of only 1,300
out of the total body of some 14,000 clinical psychologists in England and Wales. In
the circumstances, Mr Bagchi did not attempt to respond to each issue that had been
raised against Ms A in the ACP document. Instead, he confined his submissions to a
number of key points.
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58. During the hearing I concluded that it was simply 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. In short the reasons supporting that conclusion
were:

a) To do so would be to undertake an inherently unfair process based upon

unsolicited opinion evidence that had been refused admission by HHJ
Davies and for which no permission had been granted by this court;

b) The current court process is an appeal hearing during which it was not
contemplated that the court would hear evidence and determine detailed
issues of fact and opinion. In contrast, for the assertions raised in Ms
Mills’ skeleton to be determined, the court would have to engage in an
extended process including:

i) Formal filing of evidence attributed to a named expert on behalf

of ACP-UK (rather than having this material simply adduced in
counsel’s skeleton argument);

ii) Detailed evidence in response from and on behalf of Ms A;

iii) Oral evidence from the ACP witness and Ms A, followed, only
then, by submissions based on that evidence;

iv) A judgment determining the relevant issues between ACP and

Ms A.

It would only be at the conclusion of such a process that the court might
be able to hold that Ms A either was, or was not, qualified to carry out
the instruction to provide a psychological report in this case.

c) Apart from being inherently unfair, the process urged upon the court by
Ms Brereton and Ms Mills is fundamentally unsound and wrong. The
central issue to be determined, rather than being litigated on appeal
between the parties to the case, would be between Ms A and the ACP,
who are merely interveners. For the ACP’s position to be elevated to that
of prosecutor in what would be, in effect, a lack of fitness to practice
claim against Ms A, in the context of an appeal against a judge’s decision
not to reopen findings of fact in a private law children case, would stretch
the boundaries of the appeal process to an untenable degree;

d) Were the court to accede to Ms Mills’ submissions and hold that Ms A

is, indeed, not qualified to act as an expert psychological witness in
family proceedings, that finding would have a major impact upon Ms
A’s ability to continue to work as she currently does. Whilst in other
fields of professional practice, via regulatory or disciplinary
proceedings, such a finding might be made, that would only be the case
after a full and fair hearing that had been properly constituted before an
appropriate tribunal. The suggestion that this court, on the basis of
submissions alone, and without affording any opportunity to Ms A to be
heard directly, would make such a finding in the context of an appeal
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against a refusal to reopen findings of fact, only has to be stated for it to

be seen to be wholly untenable.

59. Approaching the issues in this way makes it necessary to focus on the question of
whether HHJ Davies’ original decision to refuse the instruction of Prof Wang at first
instance is now open to challenge.

60. Ground 1 of the mother’s grounds of appeal is that the judge fell into error in
determining the rehearing issue in the absence of any expert evidence as to the
sufficiency of Ms A’s professional qualifications to provide a psychological report.
That ground misstates the position by referring to ‘any expert evidence’, when the only
application made to the judge was for the instruction of Prof Wang and the target of
this ground must be the judge’s decision of 10 May 2022 refusing that application.

61. In her judgment on this issue, following consideration of written submissions, the judge
noted that Prof Wang was a highly qualified clinical psychologist with obvious
expertise and experience as the Chair of ACP. She, correctly, noted that leave could
only be granted if the instruction was ‘necessary’ to determine the application for a
rehearing. The judge said that she was in no doubt about Prof Wang’s opinion regarding
Ms A’s expertise as this had been expressed in the ‘uninvited’ email that he had sent to
the court in January 2022. The judge concluded that it was not necessary for Prof
Wang’s expert view to be before the court. She considered that there was a danger of
the case being de-railed with time taken up by discussion of the merits and de-merits of
the competing views on the manner in which assessments are to be carried out. The
judge noted that at the full hearing she would hear submissions based on recent
authorities and guidance, the CV of Ms A and her cross-examination during the
substantive hearing.

62. The current appeal is against the July 2022 refusal to order a rehearing. There is no
direct appeal against the May refusal for leave to instruct Prof Wang. The mother’s
skeleton argument therefore argues that the judge was wrong not to order a rehearing
in circumstances where she had refused the instruction of Prof Wang, rather than
challenging the May decision full-square. In her oral submissions, Ms Brereton,
understandably in those circumstances, did not challenge the refusal to instruct Prof
Wang, but did criticise the judge’s failure to refer to Prof Wang’s email in the course
of her judgment.

63. Notwithstanding the fact that the criticism in Ground 1 (that the rehearing issue was
determined in the absence of expert evidence) has not been advanced prominently
within this appeal, given the approach that I have taken by refusing to be drawn into
consideration of the detailed critique of Ms A which is now presented by Ms Mills’
skeleton arguments, the correctness of the judge’s decision not to conduct a similar
exercise at first instance by permitting the instruction of Prof Wang must be evaluated.
The evaluation can, however, be short. In most Family proceedings, the purpose of
instruction is to find out what the opinion of the instructed expert is on the relevant
issue(s). Here, Prof Wang had, before the question of his being instructed as an expert
had been raised, volunteered his opinion on Ms A’s qualification in his January 2022
letter to the court in unequivocal terms [see para 36]. Whilst permitting him to be
instructed as an expert would undoubtedly have provided chapter and verse for his
shortly stated conclusion, the judge had already experienced Ms A being thoroughly
cross-examined on this topic during the substantive hearing. She also had the
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underlying detail set out in the FJC/BPS and ACP guidance. In the circumstances, and
where the judge was going to measure that cross-examination alongside recent guidance
and Ms A’s CV, she was not in error in refusing leave to instruct Prof Wang.

‘Qualification’: the ACP-UK case

64. It is at the core of the mother’s case on appeal, the ACP submissions and, indeed, Prof
Wang’s letter, that Ms A is ‘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 in the present case.

65. These were the bold and firmly stated assertions that led the court to ask Ms Mills, at
the first hearing, to be taken to some authoritative document (a statutory instrument or
regulation) in support. From the ACP’s second skeleton argument and Ms Mills’ further
oral submissions, it is now clear that no such authoritative document can be identified.
Rather than relying upon a bright line categorisation of those who are, and those who
are not, qualified to hold themselves out as a ‘psychologist’ and accept instruction in
Family proceedings, the ACP’s’ case is built up through a patchwork of factors which,
it is said, when taken together, exclude Ms A.

66. The principal element of the ACP’s patchwork is that only practitioner psychologists
who are registered with the HCPC, which is given statutory responsibility for the
regulation of practitioner psychologists, may use the following ‘protected titles’:

- Clinical Psychologist

- Counselling Psychologist

- Educational Psychologist

- Forensic Psychologist

- Health Psychologist

- Occupational Psychologist

- Sport and Exercise Psychologist

- Registered Psychologist

- Practitioner Psychologist.

67. Separately (or in addition), 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 the BPS.

68. Thus, an individual who is not registered with the HCPC may not use one of the
protected titles and, if not chartered by the BPS, may not call themselves a ‘chartered
psychologist’. This is very solid ground and provides a clear and reliable indication of
the expertise of a psychologist who comes within these two schemes. Difficulty arises,
however, from the fact that the title ‘psychologist’ is not, of itself, regulated or
protected. The situation is described in the current FJC/BPS guidance:
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‘Under the current legislation, the HCPC is not authorised to protect the basic title
‘psychologist’. Therefore, both fully qualified and experienced psychologists and
people who are not qualified in psychology at all can legitimately refer to
themselves as any kind of psychologist. For example, the following titles are in
use:

• Assessment Psychologist

• Child Psychologist

• Criminal Psychologist

• Expert Psychologist

• Developmental Psychologist

• Consultant Psychologist and

• Graduate Psychologist.

When unqualified people refer to themselves as ‘psychologists’ this may create

confusion for the public, other professions and the legal system. But unless such
people cross other boundaries, such as laws concerning misrepresentation of
qualifications, deception and fraud, this is currently not illegal.’

69. The cohort of individuals who call themselves psychologists, but who are neither
regulated nor chartered, has been referred to in these proceedings as ‘non-regulated
psychologists’. The ACP accepts that such individuals, who may only have a basic
qualification in psychology, may nevertheless refer to themselves as ‘psychologists’.
The ACP, however, submits that a non-regulated psychologist is not qualified to
undertake psychological assessments in Family Court proceedings. The submission is
based upon the fact that a psychological assessment will normally include the
administration of one or more psychological assessment tools. Whilst some such tools
are available to any user, most are controlled by their publishers and only supplied to
psychologists who have the requisite qualifications to use them. The group of
assessment tools which are controlled in this way is itself sub-divided into two groups,
with the second, more exclusive category, only supplied to those with a specific
qualification (for example registration with the HCPC). The ACP describes the three
categories as generally being:

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.

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
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organisation requiring training and experience in the relevant area of

assessment.

70. The ACP’s argument is that a person whose ability to purchase assessment tools is
restricted to the first tier will be limited to those tests and, therefore, unable to evaluate
psychological factors which could only be measured by the second and third tier tests.
When the specific instructions given to, and accepted by, Ms A in the present case are
considered, the ACP’s submissions focus on Question 1:

‘1. Please undertake an assessment of the children focusing on their global

functioning, intellectual, emotional, social and behavioural development and
comment on any matters of concern.’

71. Ms Mills makes a number of specific points about Question 1:

a) It requires:

i) a cognitive assessment;

ii) an assessment of the children’s adaptive functioning (said to be

crucial to identify a learning difficulty, a specific learning
difficulty, a neurodevelopmental condition, developmental delay
or making decisions about capacity);

iii) an assessment of emotional, social and behavioural development;

b) Standardised tools are normally required to assess intellectual

functioning. The most widely used for cognitive assessment are the
Wechsler Intelligence Scale for Children and the NEPSY-II. Both of
those tests are only available for purchase by those in tier 3.

c) Appraisal of adaptive functioning requires evaluation of structured

information on a validated measure such as the Vineland Adaptive
Behaviour Scales, which can only be purchased by those in tier 2 or 3.

d) Assessment of development typically requires a clinical interview

measured against self-report psychometric tools such as the Beck Youth
Inventories, or for adolescents, the Symptom Checklist-90-Revised, both
of which are restricted to tier 2 or 3.

72. The ACP’s case with respect to Question 1 is that Ms A is not qualified to purchase the
tools that they assert are necessary to assess each of the various elements of this
question, she does not purport to have used those tools and, indeed, it is claimed that
she does not appear to have answered Question 1 with respect to (i) cognitive ability or
(ii) adaptive functioning.

73. It is of note that with respect to the other nine questions in Ms A’s instructions the ACP
does not assert, in contrast to Question 1, that any instructed psychological expert would
need to deploy specific, restricted, assessment tools (save insofar as the answer to those
questions relates back to the factors assessed under Question 1). With respect to
Question 8, which invites advice on therapeutic or other input for the children or
parents, the ACP submit that it is not unreasonable to expect that an expert would share
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the same or substantially similar qualifications as those employed in the NHS who
advise on therapy. It is submitted that Ms A’s CV does not indicate that she is so
qualified.

74. The ACP skeleton then moves on to consider the assessment tools that Ms A did use in
this case, and to analyse her CV in the context of qualification and/or experience to
undertake those tests. For the reasons that I have given, I determined that it was not
appropriate for those matters to be litigated by the two interveners within the scope of
this appeal.

75. For the reasons already given, it is not possible for the court to determine, within the
confines of this 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 other similar cases. I
have, nevertheless, set the ACP submissions out in some detail because they are of
value in flagging up the potential for the qualifications of a candidate for instruction to
fall short of what is required. As I will describe in more detail, I propose to refer these
matters to the FJC for investigation and, if appropriate, the issue of revised guidance.

The Mother’s Appeal on Reopening: Conclusion

76. At the conclusion of the oral hearing, I announced my decision, which was to dismiss
the substantive appeal against the judge’s refusal to re-open the fact finding process. I
will now set out my reasons for that conclusion.

77. The single issue upon which the appeal is based is that relating to Ms A’s qualification
to undertake the role of expert assigned to her in this case. It is correct that, since June
2021, when the fact finding judgment was given, there have been developments in terms
of guidance which focus upon the need for caution when instructing experts in Family
proceedings. Reference has been made to the ACP guidance, and the FJC/BPS
guidance, and to the President’s Memorandum, to which reference was made in a
speech in Jersey. This new material is important and should be read and understood by
professionals and judiciary in the Family Court, but it is no more than guidance or
advice. It is neither black-letter law nor regulation, and it does not, of itself, render
unlawful that which was previously accepted, or, more particularly, render
‘unqualified’ an individual who was previously thought to be qualified to act as an
expert.

78. Ms Brereton impliedly accepted this position by not placing great weight on the new
guidance and indicating that the main development was the letter to the court from Prof
Wang and, now, the intervention of the ACP. I have already held that the judge was
correct not to admit Prof Wang’s letter as evidence and was right not to permit his
instruction as an expert. In her judgment refusing permission to instruct Prof Wang, the
judge had not identified his letter as one of the factors to be taken into account when
hearing the substantive application to reopen the factual conclusions, and it can be seen
that she did not do so. The judge was plainly correct in taking that course. The
unsolicited letter from Prof Wang was not evidence and the court had refused
permission for him to be instructed as an expert. Indeed, in those circumstances, 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.
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79. Ms Brereton submitted that the fact that Prof Wang’s letter was not admitted into
evidence, and permission to instruct him as an expert had been refused, did not mean
that the judge was entitled to ignore it. In support Ms Brereton relies upon the well
known distillation of the approach to reopening previously determined facts described
by Hale J (as she then was) in Re B (Children Act Proceedings) (Issue Estoppel) [1997]
1 FLR 285. It is not necessary to quote the passage in full, but at its conclusion Hale J
described the approach to be taken:

‘The court will want to know:

(a) whether the previous findings were the result of a full hearing in which
the person concerned took part and the evidence was tested in the usual way;

(b) if so, whether there is any ground upon which the accuracy of the previous
finding could have been attacked at the time, and why therefore there was no
appeal at the time; and

(c) whether there is any new evidence or information casting doubt upon the
accuracy of the original findings.’ [emphasis added]

Ms Brereton focusses on the acceptance that new ‘information’, as opposed to

‘evidence’, may be relied upon as casting doubt on the accuracy of the original findings.
Hale J’s phrase, including reference to ‘information’, has been taken up and followed
in subsequent authorities. Ms Brereton submits that, even if leave to adduce evidence
from Prof Wang had been refused, the fact that the Chair of the ACP had written to the
court in these terms should have been taken into account by the judge.

80. Although the wording of Hale J’s formulation in Re B properly allows Ms Brereton to
make that submission, it does not, in my view, take matters any further. Without being
prescriptive, the primary focus of the word ‘information’ in the context of an application
to reopen a factual determination must relate to factual information that, whilst not, at
that stage, formal ‘evidence’, casts doubt upon the previously found facts, for example
a police log or a mobile phone record. A letter restating an assertion that had been four-
square before the court at the original hearing, namely that Ms A was not qualified, no
matter how apparently authoritative the source may be, is not of the same quality as
fresh factual information. It is an opinion. In addition, Hale J’s formulation is
descriptive as opposed to prescriptive; a court is not obliged to take account of every
piece of new ‘information’, but may do so. In the circumstances, reference to
‘information’ in Re B does not take the Appellant’s case any further.

81. Moving on to the submissions made on appeal, and for the reasons that I have now
given, at some length, it would be wholly wrong for this court to embark upon a contest
on the issue of Ms A’s qualifications played out solely through counsel’s submissions
between two parties who are both interveners in the appeal process. In the absence of
some bright-line provision which, without debate and unambiguously, establishes that
Ms A was not qualified to undertake instruction as the psychological expert in these
proceedings, this appeal process is simply inapt to determine the issue. It would be
neither possible nor, indeed, fair, for the court effectively to determine Ms A’s fitness
to practice as she has been doing for some years by trial by submission alone.
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82. Once these core elements of the mother’s appeal are set aside, all that remains is the
suggestion that a previous guardian had expressed some concern at a preliminary
hearing over Ms A’s qualification. This point was, rightly, not pursued in detail. By the
time of the hearing before the judge, which is the focus of the appeal, the guardian’s
position was plainly against re-opening. In this court the guardian opposes the appeal.
Any indication of earlier, shortly stated, concern must therefore be of little weight and
cannot save the appellant’s case.

83. I was, however, so clear that the appeal should be dismissed not solely because of the
negative conclusion that I had formed about the proposed assault on Ms A’s
qualification. In any appeal of this nature, it is necessary for the court not only to keep
in focus the specific criticisms that are being made of the judge below, but also to
maintain the whole of the original fact-finding judgment in view at all times. The
primary focus is on the decision whether or not to reopen the fact finding decision,
consideration of Ms A’s qualifications is but one part of the overall determination. From
that perspective, the appellant, even if the case against Ms A had proceeded further,
would have had an uphill task. The June 2021 judgment was a full and thorough
judgment from a most experienced Family judge, who had been immersed in the case
over a number of hearings and, at the trial, over a number of days. An appellate court
will always, rightly and necessarily, afford significant respect to findings of fact made
by a judge who has been exposed to the key lay parties, and to the totality of the
evidence, in the cockpit of a fully contested hearing. That judge has a perspective and
insight into a case which is of a wholly different order to that of the appellate court.
HHJ Davies made clear and firm adverse findings as to the mother’s credibility and her
detailed evidence. These findings were the judge’s own findings, based on the written
and oral evidence of the parties. They were free-standing findings and not based upon
the analysis and conclusions of either Ms A or the guardian. Separately, the guardian
had come to her own conclusions as to the welfare outcome for the children. Whilst
there would plainly be potential for the guardian’s conclusion to be influenced by the
evidence of an expert, the judge was satisfied that this, too, was a free-standing
evaluation. Ms A's evidence was a third element in the judicial decision making; it was
compatible with the first two, but not more influential than that.

84. The soundness of the judge’s findings is evidenced by Peel J’s first decision to refuse
permission to appeal on the basis that the application was ‘totally without merit’. On
the internal merits of the case, that decision and categorisation were justified. This
appeal has come to the court to allow the wider issues to be considered, by reference to
Ms A’s role in this case. Once that aspect of the appeal has fallen away, the judge’s
decision remains as unopen to challenge as it was before Peel J on the first permission
application, when he described the judgment in these terms:

‘The judge carefully considered all the evidence both separately and holistically,
weighing it against the welfare criteria. Her judgment is clear, logical, reasoned
and internally consistent. Ultimately, there is no basis for interfering with the
careful conclusions on both facts and welfare. There is no real prospect of success
on the appeal, and permission to appeal is refused.’

Peel J’s description is, in my view, correct in every particular.

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85. There being no challenge to the judge’s approach as to the applicable law, in the
circumstances the appeal against the refusal of leave to reopen the fact finding decision
failed and was dismissed.

Un-regulated psychologists as experts in the Family Court: Guidance

86. Before leaving these issues, and turning, shortly, to the remaining two elements of the
appeal, this in some ways unsatisfactory hearing does provide the court with the
opportunity to draw the recent guidance together and to flag up the key points in clear
terms. What follows is not intended to change or to amend what is said in the FJC/BPS
guidance or in the President’s Memorandum. It draws, where appropriate, on the ACP
guidance and on Ms Mills’ submissions, but in doing so the court is conscious that this
material is generated by a single campaigning association, and is not material emanating
from a regulatory body or an office holder/official body within the Family Justice
system.

87. I start with basic concepts and labels. There is no definition of an ‘expert’ in Family
proceedings, save for the circular procedural definition at FPR 2010, r 23.2(c): “‘expert’
means a person who provides expert evidence for use in proceedings”.

88. Certain statutory exceptions to the term are set out in Children and Families Act 2014,
s 13(8):

‘(8) References in this section to providing expert evidence, or to putting expert

evidence before a court, do not include references to—

(a) the provision or giving of evidence—

(i) by a person who is a member of the staff of a local authority or of

an authorised applicant,

(ii) in proceedings to which the authority or authorised applicant is a

party, and

(iii) in the course of the person's work for the authority or authorised
applicant,

(b) the provision or giving of evidence—

(i) by a person within a description prescribed for the purposes of

subsection (1) of section 94 of the Adoption and Children Act 2002
(suitability for adoption etc.), and

(ii) about the matters mentioned in that subsection,

(c) the provision or giving of evidence by an officer of the Children and

Family Court Advisory and Support Service when acting in that capacity, or

(d) the provision or giving of evidence by a Welsh family proceedings officer

(as defined by section 35(4) of the Children Act 2004) when acting in that
capacity.’
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89. Expert evidence will only be permitted in children proceedings ‘if the court is of the
opinion that the expert evidence is necessary to assist the court to resolve the
proceedings justly’ [C+FA 2014, s 13(6)].

90. 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.

91. 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.

92. 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:

- Association of Child Psychotherapists

- The UK Council of Psychotherapy

- The British Association of Counselling and Psychotherapy;

- The British Association of Behavioural and Cognitive

Psychotherapies;

- The British Psychoanalytic Council.

93. Certain categories of psychologist, for example ‘clinical psychologist,’, have a

‘protected title’, which may only be used by those who are validly registered under the
regulations [see paragraph 66]. The generic label ‘psychologist’ is not protected and
may be used by any individual, whether registered or not. A report by an unregistered
person calling themselves a psychologist may be called a ‘psychological report’.

94. From the perspective of the court, and it may be from a wider public perspective, the
open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing. In
other fields, particularly medicine, the court is used to a stricter regulatory scheme in
which an individual can only call themselves by a professional title, for example
paediatrician, or pathologist, if recognition of their expert status is confirmed and
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monitored through formal regulation and registration. It is, however, a matter for the
psychological profession and, ultimately, Parliament, whether a tighter regime should
be imposed.

95. In its letter to the court declining the invitation to intervene the HCPC, having described
the registration scheme and the HCPC’s role in setting standards of proficiency for
practitioner psychologist. The letter continues:

‘The broad use of the term ‘psychologist’ is not a protected title. Beyond the
HCPC’s protected titles, any person may call themselves a psychologist. Because
the functions of practitioner psychologists are not protected, they may practice as
such without the need for registration. … [W]ith no restriction on the use of the
title ‘psychologist’ itself, there is nothing the HCPC can do about individuals
undertaking the same work as registrants but who simply avoid using a protected
title. On 1 July 2022 we wrote to the Director of Workforce at the Department of
Health and Social Care to highlight the risks presented by unregulated
psychologists including in relation to the provision by them of expert evidence in
court proceedings. As noted above, it is ultimately a matter for the Government to
determine which roles should be subject to statutory regulation.’

96. The court must, therefore, 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.

97. Courts faced with a potential expert who presents a voluble, unstructured CV should at
all times bear in mind that there is clear and solid ground to be found in the registration
scheme. A lesson plainly to be drawn from the present case is the need for clarity as to
an expert’s qualification and/or experience. The more diffuse and unstructured a CV,
the less effective it is likely to be in transmitting information crisply and clearly. In this
regard, lawyers, magistrates and judges are lay readers. They need to be able to see with
clarity, and in short form, the underlying basis for an individual’s expertise. HCPC
registration, or chartered status in the BPS, provide a reliable, one-stop, method of
authentication. Where a potential expert is registered with the HCPC as entitled to hold
themselves out as an expert under one of the protected titles, this can be taken as
sufficient qualification to offer an opinion within that field of practice. Further detail in
the CV may assist with the choice of one particular expert over another, but it is the
kitemark of HCPC registration which should resolve the question of qualification
without more. A psychologist’s CV should, therefore, prominently highlight whether
they are HCPC registered or not. It is incumbent on an un-registered psychologist to
assist the court by providing a short and clear statement of their expertise.

98. It is not, however, for this court to prohibit the instruction of any unregulated
psychologist. The current rules and guidance are clear and contain an element of
flexibility. 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 reiterated
by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6
(adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US
579) that

“if scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
 SIR ANDREW MCFARLANE P RE C
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expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise.”

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.

99. A further, potentially important, factor is the restrictive scheme that ACP has described
as being applied by the publishers of psychological assessment tools which require a
bespoke, or advanced, level of understanding from the user [see paragraph 69]. The
description of the three-tier structure in counsel’s submissions was necessarily
summarised and requires further evaluation and explanation before it may be taken
further by courts, but, if it is 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. I am going to
invite the FJC to investigate this issue and consider revising its guidance to include
reference to this factor if that is justified.

100. Ms Brereton correctly submitted that there was a need for rigour during the process of
identifying and approving an expert for instruction in Family proceedings. Given the
potentially confusing use of the title ‘psychologist’, the need for due rigour is
underscored.

101. In the present case evidence of a lack of rigour arises from the court indicating in its
initial order that either ‘a psychiatrist or a psychologist’ was to be instructed. It is not
necessary to do more than state that plainly there is a significant difference between the
two. A psychiatrist is a doctor who is a specialist in the diagnosis and treatment of
mental illness, whereas a psychologist’s skill is in assessing personality, intellectual
functioning and behaviour. Whilst there may be a crossover between the two, their
focus, skill and training are different.

102. The difficulties that have arisen in these proceedings, where much time has been taken
up at first instance and on appeal in attempting to evaluate Ms A’s qualifications to
discharge her instructions, indicate that work should be done to assist 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. The aim of the template
will be for readers to see at a glance whether an individual is currently registered with
the HCPC (and if so in what category), or a Chartered Psychologist, or not. Further
information, displayed shortly and clearly, should identify any formal qualifications,
posts held and published work. 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. Such a template might include some easily understood ‘traffic-
light’ indication of expertise. A template of this nature would, I believe, greatly assist
courts in divining the basic level of expertise of a potential expert witness. It would
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 to the need to look
more carefully at the underlying evidence of appropriate expertise.
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Parental Alienation

103. Before leaving this part of the appeal, one particular paragraph in the ACP skeleton
argument deserves to be widely understood and, I would strongly urge, accepted:

‘Much like an allegation of domestic abuse; 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 not the purpose of this judgment to go further into the topic of alienation. Most
Family judges have, for some time, regarded the label of ‘parental alienation’, and the
suggestion that there may be a diagnosable syndrome of that name, as being unhelpful.
What is important, as with domestic abuse, is the particular behaviour that is found to
have taken place within the individual family before the court, and the impact that that
behaviour may have had on the relationship of a child with either or both of his/her
parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s
focus, rather than any quest to determine whether the label ‘parental alienation’ can be
applied.

Appeal against CA 1989, s 91(14) order

104. In the event that the appeal on the issue of reopening was dismissed, Ms Brereton
maintained the mother’s challenge to the s 91(14) order imposed by the judge.

105. HHJ Davies dealt with the s 91(14) order as follows:

‘38. Under sections 91(14) and [91A] the court has power to make an order under
its own initiative. This is not a case where there have been a series of hopeless
applications. The law is now clear that these orders should not only be made in
exceptional circumstances. Although the duration of the litigation in this case
perhaps does put it to towards the top end of anything that could be regarded as a
normal dispute, I take into account, as I must, the impact on these children of the
continual litigation in this case. They have been in litigation, in one way or another,
for about eight years of their lives. I accept the recommendation of the guardian
that the children now need an extended period where they understand that their
living arrangements are stable and fixed and they need to know that their parents
are no longer fighting over them.

39. The mother fears that this section 91(14) order will be seen as an interference
with their Article 8 rights (in other words an interference in their private and family
life).

40. A section 91(14) order is not a total bar of any further application but it adds
an additional step which is required before an application could be made to ensure
that such an application is appropriate. I have to make sure that any order is
necessary, proportionate and is the least interventionalist order in any Article 8
rights.
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41. I am satisfied that this is a case in which a section 91(14) order is necessary. I
weigh the potential damage that will be caused to the children if there is further
litigation. They need to settle into the routine that I put in place a year ago. The
children need to continue to have good contact with their mother and to spend good
time with their father. They need to enjoy their life at school and to continue to get
involved in all of their out-of-school activities with their friends. The children do
not need social workers, guardians, therapists or counsellors. They do not need the
spectre of court cases hanging over them.

42. I have come to the conclusion that I should make a section 91(14) order and
that this order will last until the eldest child has completed the GCSE exams (in
June 2025). That will enable the children to know that there will be no major
changes in their lives for a sensible period of time. That, then, is my order in respect
of section 9(14).’

106. CA 1989, s 91A states:

‘S 91A Section 91(14) orders: further provision

(1) This section makes further provision about orders under section 91(14) (referred
to in this section as “section 91(14) orders”).

(2) The circumstances in which the court may make a section 91(14) order include,
among others, where the court is satisfied that the making of an application for an
order under this Act of a specified kind by any person who is to be named in the
section 91(14) order would put—

(a) the child concerned, or

(b) another individual (“the relevant individual”),

at risk of harm.

(3) In the case of a child or other individual who has reached the age of eighteen,
the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment
or the impairment of physical or mental health.

(4) Where a person who is named in a section 91(14) order applies for leave to
make an application of a specified kind, the court must, in determining whether to
grant leave, consider whether there has been a material change of circumstances
since the order was made.

(5) A section 91(14) order may be made by the court—

(a) on an application made—

(i) by the relevant individual;

(ii) by or on behalf of the child concerned;

(iii) by any other person who is a party to the application being disposed
of by the court;
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(b) of its own motion.

(6) In this section, “the child concerned” means the child referred to in section
91(14).’

107. The mother’s appeal against the s 91(14) order asserts that it lacks proportionality were
there was no history of unmeritorious applications. Secondly, it is submitted that the
extension of the law by s 91A has no application in circumstances where the judge did
not find that there was a risk of harm to the children or to another individual.

108. Ms Brereton submitted that, looked at in the round, this was not a case where the s
91(14) filter should have been deployed. Although only made for 3 years, such an order
is, it is argued, disproportionate in a case such as this.

109. In opposing this aspect of the appeal, Mr Hale drew the court’s attention to the fact that,
in February 2022, the judge had advised the mother to consider very carefully whether
she should apply to have the facts reopened. The mother nevertheless pursued her
application. It was an application made against evidence that the children have thrived
in the current arrangements and are now sustained in a relationship with both of their
parents.

110. In relation to the new provision in s 91A, it is correct that the judge did not make specific
findings of ‘risk of harm’ to the children or the father, but the judge did weigh the
‘potential damage that will be caused to [the children] by further litigation’. This is
purely a semantic distinction and it is clear, having expressly referred to s 91A, that the
judge was applying the new provision. In any event, the general power under s 91(14)
is now to be deployed without the need to establish exceptional circumstances [Re A (A
Child: Supervised Contact) (s 91(14) Children Act 1989 Orders) [2021] EWCA 1749]
where there is a need to protect a child from endless unproductive applications.

111. It is not correct to say that the appellant mother has no history of unmeritorious
applications. The first attempt to appeal was cast as ‘totally without merit’ by Peel J.
The subsequent application to reopen the facts was dismissed and this appeal, which
was permitted for reasons other than the merits themselves, has now been dismissed.

112. The judge’s judgment demonstrates that she properly considered all of the relevant
factors. She had given the mother fair warning about the consequences of an application
to reopen if that were to subsequently fail. In all the circumstances this aspect of the
appeal has no arguable basis and must also fail.

Costs Appeal

113. After correctly setting out the legal context and the case for each party on costs, the
judge gave the following reasons for her decision:

‘1. The mother’s application to reopen the hearing had no prospect of success. It
was a repetition of the argument put before Peel J when the application for
permission to appeal was dismissed as being totally without merit.
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2. The arguments had previously been raised in the same manner during the original
hearing in 2021.

3. The “new” matters which the mother attempted to raise were not new and were
not relevant to the decision I made which was based on the whole of the evidence
in the case.

4. The mother brought this application knowing that costs were an issue the father
having raise this at the previous hearing in February 2022 and in subsequent
correspondence.

5. The mother’s determination to have what might be described as “another bite of

the cherry” was not a reasonable stance to take in all the circumstances of this case.

6. I therefore find that this is a case in which the mother’s unreasonable approach
to the litigation allows me to consider making a costs order.

7. I take into account that any order made against the mother will cause her to
become even more disillusioned with the justice system and may have an adverse
impact on her however I do not consider a costs order will impact adversely on the
children who are now settled living with the Father.

8. I take into account that an order for costs may make cooperation between these
parents even more difficult to achieve however I also take into account that they
have been litigating for about 8 years and there has been not so much as a glimmer
of hope that they will start to cooperate. Sadly I conclude that a costs order will
have no impact on their already rock bottom relationship.’

114. The costs appeal is maintained even if, as it has, the substantive appeal failed. The
appellant’s skeleton submits that:

a) There was no finding in the main that the mother’s conduct in seeking to
reopen the case was unreasonable or reprehensible;

b) It was not sustainable to go further than the substantive judgment and

holding that the application had no prospect of success;

c) Even if unreasonable conduct is found, a costs order should not

automatically follow;

d) The combined effect of the judge’s substantive findings, the s 91(14)

order and costs order is likely to have a chilling effect on the mother’s
ability to act to promote the children’s best interests in the future.

115. Ms Brereton submitted that there was no basis for the judge to hold that the mother had
acted unreasonably or reprehensibly in promoting her application for the findings to be
reopened. In particular, at the time of the February hearing, the children’s guardian was
supporting the application and it is therefore difficult to say that the mother was
unreasonable at that time. In addition, during the spring and summer of 2022 there were
other issues regarding the children and the case was likely to be back before the court
in any event.
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116. In opposing the appeal on costs, Mr Hale described the judge’s judgment as being a
model ruling. After 8 years of litigation, this was the first occasion that the father had
made a costs application. His overall costs bill has been in the region of £250,000.

117. It is of note that there is no criticism of the judge’s approach in law to the question of
costs. In the circumstances, on appeal, the court has regard to her finding that it was not
reasonable for her to pursue the reopening application and then the exercise of judicial
discretion.

118. Having reviewed this case in detail, it is not possible to fault the judge’s approach on
the question of costs. In circumstances where the first appeal had failed on the basis
that it was ‘totally without merit’, and a second attempt to overturn the findings of fact
based largely upon subsequent guidance, rather than anything of more substance, had
failed, the judge was fully entitled to hold that the mother’s conduct was not reasonable.
Whether those words were used in the substantive judgment or not, the reality is that
the application to reopen did not enjoy any prospect of success. In terms of
proportionality, it is relevant that this was the first occasion on which the father had
sought costs. Whilst the cumulative impact of the judge’s findings and orders will have
been a substantial blow to the mother, by failing, without good reason (as Peel J, HHJ
Davies and I have now held), to accept those findings but instead seek to overturn them,
she had brought the making of those orders upon herself.

119. As with the appeal against the s 91(14) order, the costs appeal is unarguable and can
only be dismissed.