Summary
The parties unanimously agreed that the report of a Court appointed expert was fundamentally flawed, could not be relied upon, and a new psychologist would need to be instructed after the expert directly challenged the findings of the Court and the soundness of the evidence on which those findings were based. The Court denied the expert’s subsequent request for anonymity.
Learning points
Learning points for experts
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Make sure you understand and comply with the applicable procedural rules, practice directions and guidance. The EWI recommends that experts obtain this knowledge through training with a reputable provider, ongoing CPD, and membership of an organisation, such as the EWI, which provides ongoing professional support.
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An expert witness must not trespass on the Court’s role in finding the facts or challenge the facts determined by the Court.
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Expert witnesses who provide written or oral evidence in cases that proceed to court, will in most cases be named in the judgment. However, there are some circumstances in which the expert may be able to demonstrate that their need for anonymity outweighs the competing public interest in the publication of their name.
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The court is unlikely to agree to anonymisation in order to shield the expert from the consequences of any errors they have made.
Learning points for instructing parties
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Always check that the experts you instruct can demonstrate their expertise as an expert witness, including an understanding of the applicable procedural rules, practice directions, and guidance. They can demonstrate this, for example, by having undertaken expert witness training from a reputable provider, maintaining ongoing CPD, and holding membership in an organisation which provides ongoing professional support, such as the Expert Witness Institute.
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Registration with a professional regulator (in this case, the Health Care Professions Council) does not guarantee that an expert witness has the understanding and training to act competently as an expert witness.
The case
The applicant local authority sought a final care order and approval of their final care plan for N, a 7 year old child of dual Italian and Romanian heritage. N’s mother (Ms A) has three children. Final care orders for the children had been made by HHJ Coppel in February 2024. The final care arrangements order for N was successfully appealed, leading to this re-hearing. However, no party sought to appeal the factual findings, threshold determination or welfare assessment with respect to Ms A. The Court therefore recorded in the threshold findings relevant to N’s father (Mr O) which included violent and threatening behaviour and criminal convictions.
There had been a significant delay in reaching this final welfare decision for N, with 3 years having passed since the local authority first made their application. This delay was exacerbated by the failures of the expert witness set out below.
Clinical psychologist expert witness
Following the Court of Appeal decision, Dr P, a clinical psychologist registered with the Health Care Professions Council, was instructed to carry out a psychological assessment of Mr O. Dr P was appointed because she was qualified, and had worked in, both Italy and the UK. Upon receipt of her report, it was unanimously agreed by the parties that her report was “fundamentally flawed, could not be relied upon, and a new psychologist would need to be instructed”.
Dr P was instructed to opine on whether there were any aspects of Mr O’s personality that inhibited his ability to care for N given the finding that he had assaulted Ms A. Dr P carried out a psychological assessment of Mr O using MS Teams.
Within her report, Dr P directly challenged the findings of HHJ Coppel and the soundness of the evidence on which those findings were based. She pointed to the ‘unacceptability of that evidence’ to justify her conclusion that Mr O does not pose a risk of domestic abuse. She noted that:
“I disagree with the finding about his violent nature in reference to the hospital record brought as evidence by [Mrs. A] as the record do not specify the name of the partner involved in that incident and [Mrs. A] was in a relationship with Mr. U as well as Mr. O at the time of the incident. Since Mr. O has not been charge[d] by the Italian local authority for this incident, this evidence is not an acceptable for me; especially considering that there is no further evidence that Mr. O has been violent before or after this incident or in any other romantic relationship. In my professional opinion, this evidence is also not acceptable as the court demonstrated that [Mrs. A] has res[orted] to lying and manipulate facts according to her benefit and the partner she chose in such circumstances. Indeed, it has also been found by the court that [Mrs. A] is a vulnerable woman in a co-dependent relationship with Mr. U who has often remarked his dislike towards Mr. O. Ultimately, it is clear that the competitions and animosity between the fathers fueled by the ambiguous and enmeshed behaviors of [Mrs. A] towards the fathers, has often led to conflictual relationship between these parties.
Considering the unacceptability of such evidence and lack of further evidence of domestic abuse, as well as the consistent and copious evidences that Mr. O has always cared for Master N at the best of his capacity; it appears that Mr. O has no risk of domestic abuse and therefore, it appears that he is not a threat for his son.”
The judge noted that the parties unanimously agreed that Dr P “wholly misunderstood and failed to comply with her instructions as an expert. Most crucially, her conclusions and recommendations were fundamentally flawed by reason of her failure to proceed on the basis of the factual findings made by HHJ Coppel.”
The court noted that “[i]t is not a case of different professionals utilising different assessment tools, but a court appointed expert failing to proceed on the basis of the facts as determined by the Court in carrying out the risk assessment as instructed.” The court noted that in her response to the notification of these concerns, Dr P continued to conflate the factual findings with the process of assessing current risk.
The judge noted that the expert’s failing had led to further cost and delay while a new psychologist was instructed and a new assessment of Mr O was undertaken. The judge therefore decided that the fees of Dr P should not in principle be meet from public funds. However, as Dr P had already been paid in full by the local authority and the legal aid agency, he instead invited her to consider returning her fee.
Dr P requested not to be named in the judgment. The judge noted that the Practice Guidance on the publication of judgments, issued by the President of the Family Division on 19 June 2024, at 5.5.4 provides that anonymisation of professional witnesses is only usually justified where its purpose is to ensure the anonymisation of the child/family. Anonymisation may also be justified on other grounds depending on the specific facts, but a speculative concern about harassment or criticism is insufficient.
The court determined that Dr P did not raise any matters to justify departing from the usual position that experts should be named. The judge noted that:
“There is a clear public interest rooted in ensuring the fair, just and efficient administration of family justice that experts should not be anonymised, the more so when their assessments and recommendations have been found to be flawed. The Court observes that experts have clear and important duties to the Court as set out within Part 25 of the Family Procedure Rules 2010. It is vital instructed experts understand those rules and comply with them. If they fail in those duties, it not only causes harmful delay and significant cost to the public purse, but undermines fair, sound and just decision-making by the courts.
There may be some cases where an expert is able to demonstrate that publication will result in a significant interference with their own Article 8 right to respect for private and family life which, when balanced against the competing public interest in publication, is sufficiently weighty to prevail. A credible threat to the expert’s physical safety is one such possibility. However, whilst no doubt publication may be uncomfortable for [Dr P] and may impact on her professional standing, she has not been able to point to any matters that would engage her Article 8 rights in any significant way.”
After weighing these considerations, the Court was satisfied that Dr P should be named.