New guidance tightens framework for instructing psychologist experts in family proceedings.

Related Sector: Expert Witness

Earlier this month, the Family Justice Council and the BPS jointly published Guidance on the use of Psychologists as Expert Witnesses in the Family Courts in England and Wales, which tightens the framework for instructing psychologist experts in family proceedings. This updated guidance comes at the request of The President of the Family Court, Sir Andrew McFarlane following his landmark judgment in the family law case Re C, where McFarlane expressed concern at a ‘’confusing system’’ in which the generic label ‘’psychologist’’ is not protected and can be used by anyone.

Consultant clinical psychologist Dr Jaime Craig, lead author of the publication, said: “We have tightened the existing guidance to make clear the difference between those psychologists who are qualified practitioners and those who are essentially researchers and academics.”

He added: “The driver behind the judge having to justify why they are choosing someone who is not HCPC registered is to force them to interrogate their qualifications. The guidance is designed to protect the public from those who are not duly competent.”

In light of this judgment and the concerns regarding unregulated psychologist experts, we would highly recommend that all practising and nascent family court experts download and read through the guidance in detail, paying specific attention to the below provisions.

Section 3 on Regulation (pages 8 and 9)

The key points of note are as follows:

• To assist the family court in making appropriate instructions, all statutorily registered practitioner psychologists should use their protected specialist title as it appears on the HCPC register.
• It is the responsibility of the psychologist expert to be transparent in relation to their qualifications and registration to assist the court in determining their suitability to offer the necessary expert opinion in the case being considered.
• 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. Where the expert is un-registered, it is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them. (Re C (‘Parental Alienation’) [2023] EWHC 345 (Fam).

Section 6 and Appendix 3 on Supervision/ peer review (pages 16 and 31-32)

The key points of note are as follows:

• Seeking regular supervision/peer review is the responsibility of the psychologist to ensure practice is current, reflective, of an appropriate and consistent standard, and to obtain regular support, especially in relation to complex matters or new areas of application.
• If a psychologist is not experienced in preparing evidence for legal purposes, they are responsible for obtaining the appropriate advice, training, supervision, and mentoring in the preparation of the report and for the first court appearance.
• In Family Courts supervision/peer review usually focuses primarily on the quality of the psychologist’s report and preparation and review of his/her oral evidence. Such review does not require the disclosure of court documentation and would be undertaken on a confidential basis without identifiable information being shared. Consistent with the requirements of the HCPC standards of proficiency for practitioner psychologists [standard 1], responsibility for the final report itself remains with the court appointed Psychologist producing it.
• If supervision is required to supplement the expertise of the Psychologist in a discrete area for a particular case, this should be disclosed in the report and subsequent evidence. Peer review is to be considered standard practice and would not warrant being disclosed in this way.
• Psychologist expert witnesses should also engage in reflective practice with non-psychological peers to ensure their work is fit for purpose within the Family Court. It is good practice wherever possible for psychologists to seek feedback on reports from lead solicitors, decision makers, and/or other professionals involved.

Appendix 5 – Checklist for instructing solicitors (pages 36-37)

This is useful to understand what expectations and questions instructing solicitors are likely to have before engaging a psychologist expert on a matter. Of particular note is section C, which highlights the need for psychologists to demonstrate recent CPD specific to working as an expert witness in the Family Court in England and Wales.

Appendix 6 – Checklist of necessary minimum information for a psychologist expert’s CV (page 38)

Please see summary of information to be included in a CV:

1. HCPC registration number (if applicable).
2. HCPC specialist protected title (if applicable).
3. Chartered Membership of BPS – Y or N.
4. Undergraduate and Postgraduate degrees.
5. Tier of psychometric test eligible to use.
6. Test-specific training any qualifications.
7. Postgraduate qualifications.
8. Other professional body memberships.
9. Summary of experience.
10. Relevant publications.
11. Posts held.

Psychologist experts are reminded that in this area 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. (ref Re C (‘Parental Alienation’) [2023] EWHC 345 (Fam)).

Author: Meera Shah

This article was first published on 07 July 2023