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Obtaining an expert report without court permission

 

A quirky case from the pen of Her Honour Judge Lazarus.  [We have previously seen Her Honour Judge Lazarus in the decision in the case about the foster carer who was abusive towards the mother who tape-recorded her, and in the s20 case where compensation of £40,000 was ordered, in both cases the Judge being very critical of the Local Authority.]

 

As a general principle, if you want an expert in family Court proceedings, you need to get the permission of the Court first. Showing an expert any documents before the Court has given you that permission is a contempt of Court and if you go by the back door and pay for a report without the Court’s permission, you may not be able to rely on it. So it would be  a waste of your money.

This particular case involved an expert called Dr Lowenstein, whose name rang a bell with me.

 

He was involved in the massive case where the Mail on Sunday tried to claim that they had an article 8 right to be friends with a 94 year old woman who had previously been the journalist’s source, where the Court of Protection had put a restriction in place on the Press talking to her until a determination of (a) her capacity and (b) whether that was in her best interests.

https://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

These are the passages about Dr Lowenstein in that case, Re G (an adult) 2014

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

 

Well, you know, that could just be bad luck. Even Babe Ruth struck out once in a while, and if you were assessing whether he was a good baseball player when you only saw one of his off days…

 

But it isn’t inspirational stuff.  He hadn’t read the documents, didn’t understand the tests and principles to be applied, wasn’t an expert in the field of law he was ostensibly reporting in and didn’t take proper notes. And he hadn’t been instructed through the Court process, but through the back door.

 

The new case is MB (Expert’s Court Report) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B178.html

 

The mother in this case made an application to discharge Care Orders relating to a child who is now 8. She came to Court, bolstered by the expert report prepared on her behalf by Dr Lowenstein.

 

I’m just going to confine myself to exactly what the Judge had to say about Dr Lowenstein.

 

 

  • Within the recent history the mother and her partner Mr P have undergone a parenting assessment conducted by Mr Ian Scrivens and dated the 20th March 2015, initiated by the Local Authority, Mr Scrivens being an experienced social worker. And he undertook that assessment over a number of sessions with Ms MB and Mr P, and indeed met with H at his foster placement, and used the Department of Health guide for social workers undertaking a comprehensive assessment.
  • That assessment does not recommend that H is returned to his mother’s care and that, while there are some positives, there are ongoing concerns and, indeed, H’s enhanced needs would suggest that the couple would find it difficult to meet those needs in the light of their own difficulties.
  • Ms MB has told me today that, following receipt of that report, she and Mr P attempted to challenge this by seeking to dispute it with the Local Authority and to bring their concerns to the attention of the independent reviewing officer, presumably at looked after children review meetings for H.
  • She also tells me that she visited her former solicitor and was told that she could perhaps seek a further report from another expert, and she also tells me that she then approached Dr Lowenstein in an attempt to understand some of the issues and discussed the parenting assessment with him. She further tells me that Dr Lowenstein himself then suggested and, as she put it, offered to do a court report for them. And she confirmed, upon my careful enquiry, that it was he who had suggested this. I note of course that this report was obtained prior to the start of any of the proceedings that I have now before me, it being dated May 2015.
  • I note that Dr Lowenstein practices from Southern England Psychological Services based at Allington Manor, Eastleigh, Hampshire, and puts himself forward as, and I am reading from the third page of his report: a chartered psychologist and associate fellow of the British Psychological Society, as a qualified clinical and educational psychologist, and that he also works in the area of forensic psychology and he is registered with the health professional council, HCPC, practising in the areas of clinical, educational and forensic psychology, and having published widely in both clinical and educational psychology as well as forensic psychology. He sets out details in an extended profile in appendix 1 to his report.
  • He sets out his background training from an Australian university and a PhD from London University, that he has clinical training and a diploma in clinical and educational psychology from the Institute of Psychiatry at the Maudsley Hospital, which qualifications were obtained in the 1960s, and that he held a former post as the Principal of Allington Manor, a specialist unit for disturbed young people. He has formerly been Chief Educational Psychologist for Hampshire and has advised and lectured in various parts of the world on the subject of setting up such centres.
  • He has twice been elected to serve as Director of the International Council of Psychologists and was their President from July 2011 to 2013, and claims to be currently practising as an independent expert witness for the courts and to write reports in the areas of educational and forensic psychology as well as in personal injury and criminal cases. He claims to work and advise in the area of family problems such as parental alienation, and he also claims to have a private practice where he treats people for a variety of psychological problems.
  • There are a number of concerns that occurred immediately to the Local Authority, to the Children’s Guardian and indeed to the Court, evident from what he calls his ‘psychodiagnostic report’ on Ms MB.
  • The first such concern is that he claims, under the very first heading, that this report is for the court and is carried out by an independent expert witness of many years experience. However, there were no ongoing court proceedings at the time. I am very concerned that he suggested that a ‘court report’ should be obtained, and suggested it to the mother of a child in foster care, and a mother who evidently has ambitions for her child either to be returned to her care or to have contact with that child and, as such, is vulnerable to any suggestion that she might be assisted by these means, notwithstanding that there were no court proceedings on foot at the time.
  • A second concern is that he purported to carry out a ‘court report’ without being granted permission to see nor having sight of any of the previous court papers, without the required process of permission from a court within proceedings being sought, and without there being an agreed letter of instruction approved by the court setting out the factors upon which he ought to comment. This is in obvious contravention of the relevant provisions found in the Family Proceedings Rules 2010 r.25, Practice Direction 25A-F and the Children And Families Act 2014 s13, and falls foul of the very clear guidance provided in Re A (Family Proceedings: Expert Witness) [2001] 1 FLR 723. Experts should not accept instructions unless explicitly informed that the court has given them its permission and of the terms set out in the court order permitting their instruction.
  • And further that he did this when he either ought to have known or knows very well, given the claims he makes in relation to his expertise, his experience, his qualifications and his apparent provision of court reports, that there was a very grave risk that such a report, prepared in this way, would be wholly inappropriate for the purposes of court proceedings and would therefore risk not being admissible within those proceedings and/or of having very little weight that could be sensibly attached to it.
  • I further note that his report mentions, at paragraph 1.7, that the mother has been improved to a considerable degree as a result of the psychotherapeutic sessions she has had with her psychotherapist, and he goes on in his conclusions, at page 10, paragraph 3, and page 11, paragraph 9, to confirm his opinion that she has undoubtedly been helped considerably by her psychotherapy and has learned a great deal as a result of her psychotherapeutic sessions. However, he also states that unfortunately there is no report from the psychotherapist as to her view of how her client benefited or not from those psychotherapeutic sessions.
  • It is therefore evident on the face of this report that Dr Lowenstein is not only, in the same report, acknowledging the lack of information from the psychotherapist but also purporting to be able to come to conclusions in relation to its impact, notwithstanding the lack of that information, and also notwithstanding that he had no information as to how the mother presented prior to such sessions. It is, therefore, a report that within its own content betrays inconsistencies and internal contradiction, and an obvious lack of rigorous analysis.
  • Additionally, Dr Lowenstein appears to be primarily an educational and general psychologist as revealed by a close reading of his qualifications, posts and experience. As such his instruction would not have been supported by the Local Authority or the Children’s Guardian in any event for that reason, and the Court would be most unlikely to accept that he would be the appropriate expert to consider mother’s complex personality issues.
  • I find this report, and the mode by which it has been suggested to the mother and has come about, to be highly unsatisfactory, likely to be in breach of professional codes of conduct, certainly lacking in any observation of the rules that apply to obtaining court reports within family proceedings, and that it is not a ‘court report’ as Dr Lowenstein claims and would not be admissible. In the circumstances, I gain the very strong impression that the vulnerability of this mother may have been exploited by Dr Lowenstein, who charged her £550 for this report in the circumstances which I have just outlined.
  • I am also aware that Dr Lowenstein has been criticised in another Court by another judge in very similar circumstances.
  • It is for these reasons that I intend to obtain the transcript of this judgment, and I have asked the Children’s Guardian to ensure that the transcript is sent to Dr Lowenstein so that his attention is drawn to the significant concerns expressed by this Court about his failure to observe the rules and requirements of reporting for the court and the inappropriateness of the steps that he has taken in this case and, indeed, the inadequacies of his report’s content, even on a superficial reading, that are evident to all concerned.
  • I am also going to invite the Children’s Guardian to consider reporting this matter to the professional bodies that Dr Lowenstein claims to belong to, and I also intend, in an anonymised version of this judgment, to publish this judgment, albeit that the names of professionals involved, and Dr Lowenstein in particular, will not be anonymised in accordance with guidance and case law. And, as I say, I consider Dr Lowenstein’s approach to this Mother’s situation to have failed in any purported attempt to assist her but to have been inappropriate and potentially exploitative, and certainly of no help to her within her applications

 

 

To see if Dr Lowenstein has been involved in any reported family cases favourably, I did a search on Bailii.

 

This one, Re F (a child) 2014, he was involved tangentially, again, having reported outside of Court proceedings, but it isn’t a favourable mention.

http://www.bailii.org/ew/cases/EWCC/Fam/2014/12.html

Dr Adshead was asked about the past reports of Dr.  Lowenstein  and Dr. Holt. Dr. Adshead told me that where she disagrees with Dr  Lowenstein , is that he seems to have a rather “old-fashioned view” of personality disorder, namely that you either have it or you do not . In Dr. Adshead’s opinion, it is perfectly possible to have some degree of personality disorder and become better or worse and that there is a spectrum of symptoms.

 

Again in this one, Dr Lowenstein’s report came before the Court despite him not having been instructed or given permission to see the papers

 

Re JC (Care Order) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B185.html

 

  On the 11th December 2012 the social worker received an e-mail from EL and that attached the report from a Dr.  Lowenstein .  The father indicated that he was referred to Dr.  Lowenstein  by his G.P.

28.              At the hearing on the 21st September 2012 father had initially requested that Dr.  Lowenstein  undertake the family assessment but Her Honour Judges Coates (sitting as a Deputy High Court Judge) directed that it was Dr. Van Rooyen who was to undertake the assessment.  Dr.  Lowenstein  was instructed without the prior sanction of the Court, and/or the agreement of the other parties, and it is clear that father had disclosed some of the case documents to him.  The matter was transferred back to the County Court.

29.              In the light of the NSPCC concluding that the case is unsuitable for their reunification programme, and in the light of Dr. Van Rooyen’s addendum report, the Local Authority now take the view that JC should be placed in long term foster care; that he needs to be placed there until father has made progress on his therapy, and parenting work, and at some stage in the future it may be appropriate to consider the issue of rehabilitation.

30.              The fact that Dr.  Lowenstein  had been instructed was discussed at the case management conference on the 12th December 2012 and father made an application for further assessment of him by Dr.  Lowenstein  because he did not accept the contents of Dr. Van Rooyen’s report.  That application was dealt with by Her Honour Judge Cameron. Having heard submissions from all parties she ruled against the Court reading the report of Dr.  Lowenstein  and ruled against the father’s application for a further assessment.

There is a 2006 Court of Appeal case where he was mentioned as a possible expert but the application wasn’t pursued (so in that one, he hadn’t reported outside of Court)

Re B ( a child) O (children) 2006

http://www.bailii.org/ew/cases/EWCA/Civ/2006/1199.html

  • Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: –

 

“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr  Lowenstein , the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

And in the Court of Appeal in 2003 – again, there’s no suggestion here that Dr Lowenstein did anything wrong, but it is an unusual order for a Court to have had to make

Re G a child 2003

http://www.bailii.org/ew/cases/EWCA/Civ/2003/1055.html

  • There have been long running proceedings in the Manchester County Court between the parents of AG born on 3 July 1996. The central issue has always been contact, or rather lack of contact, between AG and her father Mr B. I will refer to him throughout this judgment as the father. His Honour Judge Hamilton has had charge of the case for some time. There was a major hearing commenced on 10 March 2003, in preparation for which Judge Hamilton had given directions in November 2002 and January 2003. At the conclusion of the March hearing Judge Hamilton reserved his decision, handing down a written judgment on 2 May 2003. Paragraph 3 of the resulting order reads as follows:

 

“The father is prohibited from disclosing in any manner any papers or documents filed in these proceedings or their content or any school reports he may obtain to either Dr Richard Gardner or Dr Ludwig  Lowenstein  or any other expert in parental alienation syndrome or any other agency or organisation such as Families Need Fathers without the specific permission of the court.”

And another Court of Appeal case in 2000 – here, Dr Lowenstein had been properly instructed as a Court appointed expert (I note here as a ‘forensic psychologist’ ) and the Court had rejected his evidence (which doesn’t mean that there’s anything wrong with it, just that the Court disagreed with his report in that particular case)

Re L  and Others (Children) 2000  http://www.bailii.org/ew/cases/EWCA/Civ/2000/194.html

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and His Honour Judge Milligan made the order. It appears that the parties´ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr  Lowenstein  who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr  Lowenstein  has been closely associated with recognition of this syndrome. He recommended therapy, at least 6 sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr  Lowenstein . In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr  Lowenstein  is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It was, however, unfortunate that the parents´ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.
The judge, in my view, was entitled to reject the report and the oral evidence of Dr  Lowenstein , even though the psychologist was jointly instructed. Lord Goff of Chieveley said in re F (Mental Patient: Sterilisation) [1990] 2 AC1 at page 80 that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said
“I cannot accept the effect of what Dr  Lowenstein  has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that ´long term psycho- analytically informed therapy in the order of years rather than months´ is the treatment of choice.”

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr  Lowenstein . The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

And then yet another Court of Appeal case in 1999  – this time, the report having been obtained outside of Court proceedings and without the permission of the Court.

Clark v Clark and Another 1999

By a summons of 1st March the wife sought to admit fresh evidence consisting of a report from Dr  Lowenstein , a clinical psychologist, a statement from Detective Constable Shirley and her own affidavit. By a later summons she sought to introduce reports from Dr Mathews and Dr Fraser Anderson. It was agreed at the outset that all this additional evidence would be received by the court de bene esse and that any ruling on its admissibility would be deferred to final judgment. I will therefore deal straightaway with this additional evidence. The affidavit from Dr  Lowenstein  hardly meets any test for the admission of fresh evidence. He is a clinical psychologist who prepared a written report on the wife having spent several hours in her company on 8th February 1999. In a neat way this manoeuvre illustrates the extent to which the wife inhabits a world bounded by her egocentric and manipulative will unconstrained by any objective reality. Dr  Lowenstein  gave the opinion that he did because Mrs Clark restricted him to her version of events omitting to inform the psychologist that that version had been comprehensively rejected in High Court proceedings. The statement from the detective constable has greater validity in that it contradicts assertions made by the husband in letters to his solicitors in April and June 1995 to the effect that the detective constable had been obstructed by the wife in investigating a report from the husband of the theft of a picture from Wellow Park. There is perhaps just sufficient justification to permit the admission of that evidence for further investigation. As to the reports from Dr Anderson and Dr Mathews, in my opinion they fail to meet any test of admissibility. Dr Mathews’ undated report, but written in this month of April, only contains what was before the judge in her manuscript medical notes. The report from Dr Fraser Anderson simply relates to the husband’s condition in May 1997. It is dated 23rd November 1998 and it is admitted that it was requested prior to judgment. There is nothing within it which would in any way have expanded the judge’s knowledge or affected his conclusions. Consequently I would admit the statement from the detective constable and reject the three medical reports. I would add that even if admitted their contents would not have assisted her case

I will give  a caveat. There may well be many cases where Dr Lowenstein has provided a report in family Court proceedings where the Court found it useful and helpful and relied upon it, even thanking him for the valuable report. There may be hundreds of such cases. There just aren’t any reported ones. Not all cases get reported.