Regulation, transparency and public safety ...

... instructing experts in the family court.

The Observer/Guardian have recently published a series of articles about private family law cases involving child arrangements. Some of these are informed by self-report parental experiences. Others report on challenges made by journalists in cases where they feel transparency is of importance.  A particular focus – or at least one to which I have been drawn – is that of non-regulated experts in cases where parental alienation is raised as a factor. 

Last week, the Guardian reported on one such case, where there had been a successful application to name an expert who is not regulated.  Previously, they reported on a court of appeal judgement where they named two “experts.”  However, their reporting seems to suggest one of the practitioners referred to as an expert may not have been instructed as such under Part 25 of the Family Procedure Rules, and was, in fact, a treating clinician.   

I have long advocated for regulation of those who work with vulnerable people.  I find it incredulous that anyone can call themselves a psychologist, a counsellor or a psychotherapist with no minimum standards of training, no monitoring of their practice, no requirement for supervision or CPD, no accountability – and nowhere for vulnerable people to turn when they feel they have been wronged or harmed. 

I have long advocated, too, for more transparency in the family courts, particularly the routine publication of judgements, suitably anonymised to protect the identity of children and their families.  My belief is that if all judgements were published, there would be a greater awareness of complexity, enabling a better understanding of a child’s experience, and the decisions made in their best welfare interest.

Photo by Vardan Papikyan on Unsplash

Given my firmly held beliefs and advocacy – it is important that I declare here that I am a practitioner psychologist, a counselling psychologist, registered with the Health and Care Professions Council.  I am a chartered psychologist and Associate Fellow of the British Psychological Society.  I have volunteered, and served, on a number of committees and working groups in the BPS over the last 10 years, and I currently sit on the BPS Expert Witness Advisory Group.   In this role, I contributed to the recent joint guidance, with the Family Justice Council, on the use of psychologists as expert witnesses in the family courts. My views here do not represent those of the BPS or its Expert Witness Advisory Group.  These are my personal opinions, based on my professional experience and values.

Much of the media reporting, and posts on social media, seems to suggest the instruction of non-regulated experts is endemic in cases where parental alienation has been raised as a concern.  Lack of data and transparency means that it is not possible to know the scale of the problem.  In those cases of which I am aware, the vast majority of court instructed experts are HCPC registered psychologists. Where I have seen non-regulated experts who refer to themselves as a “psychologist” - some do not have the necessary qualifications to be regulated by the HCPC; others were once registered with the HCPC and no longer are.  Other non-regulated experts do not claim to be psychologists; they may use titles such as psychotherapist, yet choose not to belong to a voluntary professional body where there are minimum standards, ethical codes and disciplinary procedures.  In both cases, some of the practice I have seen seems to fall within the remit of HCPC regulated practitioner psychologists.

Photo by Zan on Unsplash

The key issues for me, are public safety and lack of accountability.  The Transparency Project wrote an in-depth article on ‘Defining Expertise’ - outlining regulation, choosing an expert and their instruction.  But the fact remains, the court is at liberty to agree to the instruction of anyone they wish as an expert.

While expert witnesses do not make decisions on children’s lives, their expertise is only sought where the court feels it is unable to make a decision without the opinion of someone who has more specialist knowledge and experience in a particular matter, than is currently available to the court.  A non-regulated expert may have such specialist knowledge and experience.  But, without oversight and accountability, by a regulator or a professional body, there is no recourse, other than in law, if their opinion is considered, or found, to be flawed or harmful.  They are not subject to investigation or sanction.  There may conceivably be a succession of concerns, by different parties, but nowhere to lodge these – no record.  Such an expert may feasibly continue to be instructed in cases because there is no log of concerns.

While there may be concerns about non-regulated experts, it would be foolish to suggest that no concerns exist about those who are regulated.  It is a matter of record that the demand for psychologists to assess individuals or families in private family proceedings in particular, outweighs the supply.  This means there is often a delay in instructing, which likely contributes to the harm a child may experience as a result of proceedings.  This scarcity, and delay, may lead to the instruction of any HCPC registered psychologist, even where their experience does not align itself with the matters of concern.

While the joint guidance from the BPS and FJC states that “Courts should expect that all psychologists based in the UK providing evidence in family proceedings are regulated by the HCPC (if they are practitioners)”, it does not follow that all regulated psychologists have the requisite knowledge and skills for a case. The issues under consideration, and the matters on which expertise is sought, are specific to each case.  Such issues may include intellectual functioning, addiction, sexual or violent offending, trauma, neurodevelopmental conditions, family dynamics, child abuse, mental capacity, capacity to change, attachment, behavioural and emotional functioning, domestic abuse. 

In raising his concerns about non-regulated experts, Mike Wang of the ACP outlined the skills of clinical psychologists.  He stated that clinical psychologists, by virtue of their high level of training, supervised practice and ongoing continuing professional development can give a diagnosis or formulation, assess mental health, personality or cognitive functioning in an adult, as well as the impact of injuries or traumatic experiences and assess parenting capacity, attachment relationships and children’s psychological needs.  If a clinical psychologist has only worked in an older adults service for the last twenty years, for example, or has perhaps specialised in pain or oncology, I would suggest they may not be best placed to carry out many of the assessments required in family proceedings.  Yet I have seen similar examples. 

In my opinion, registration with the HCPC alone is not sufficient when considering instructing an expert in family proceedings. As a condition of registration, practitioner psychologists are required to undertake annual, relevant Continued Professional Development and to act within the limits of their knowledge, skills and experience. Whether the HCPC psychologist under consideration is a counselling, clinical, forensic or other registered practitioner psychologist – attention must be given to the currency of their knowledge, CPD and pertinent clinical practice and its relevance in relation to their instructions.  The guidance from the BPS and FJC cautions psychologists about the danger of straying from their areas of expertise.  If someone has never worked clinically with children since they qualified, should they be assessing attachment or family dynamics in family proceedings?

While I find the thought of being named in a published judgement or news article quite anxiety provoking, I am acutely aware that this pales into insignificance when compared to the anxiety many children, mothers and fathers experience when they are ordered to engage with a court ordered assessment. Knowing that I may be named – may be commended or criticised, or complained about – provides an added impetus for me to strive towards the best assessment I am able to conduct, while being mindful of my regulator’s standards of conduct and ethics.    

Any party, or professional, in family proceedings, has a right to raise the concerns they have about an expert’s conduct.  There is little mechanism to exercise this right if a court appointed expert is not regulated.