I’m not describing myself, no matter how much the Mazur case might be making me feel that way at the moment…
This is a Court of Appeal decision in relation to an expert instructed in care proceedings who was an educational psychologist rather than a clinical psychologist as the order had said. The expert was entitled to use the title ‘chartered psychologist’ which was the basis on which HE accepted the instruction, but it wasn’t what the Court had authorised.
H (Children: Expertise of Witness) [2026] EWCA Civ 249 (12 March 2026)
https://www.bailii.org/ew/cases/EWCA/Civ/2026/249.html
The expert in question had alerted those instructing him that he was currently the subject of a HCPC investigation as a result of a complaint brought by another parent that he was not qualified to advise the family Court on issues beyond his narrow remit as an educational psychologist. That information was not shared, so the Court of Appeal judgment says, with the parents or the Court at first instance.
There has been a lot of discussion over the last few years (chiefly arising from parental alienation syndrome) about psychologists being instructed in children cases when what was required was one of the protected disciplines (clinical, chartered, forensic) but this was not the area that the instructed experts was qualified in. It seems to this author that it is very important that if the Court is going to be relying or taking into account the conclusions and recommendations of an expert that such expert should be properly qualified to give those professional opinions. There are questions that are properly within the remit of an educational psychologist (what are issues in this case which affect how the child performs at school and what assistance can be given in terms of SEN to manage those) – but an assessment of how the parents own experiences have affected their ability to provide safe or good enough parenting seem to the author to be a thousand miles away from that. Particularly when as here that the expert was delivering psychometric testing and interpreting that when they were not specifically qualified to do so.
This was the Court’s definition of expert witness. Hence the snappy title of this post.
- An expert witness is a person whose opinion on any relevant matter on which he is qualified to give expert evidence is admissible in civil proceedings: s.3 Civil Evidence Act 1972. The Family Procedure Rules 2010 are no more helpful, providing at 25.2(1) that ‘expert’ means a person who provides expert evidence for use in proceedings.
- In Hodgkinson and James, Expert Evidence: Law and Practice (5th ed) at 1-025 it is said that the two most important qualities of an expert are the possession of knowledge of the specialism in question, and an ability to use that knowledge by virtue of training and/or experience in that field.
- The most that has been said judicially by way of definition of expertise is that a witness will be qualified to give expert evidence if they have acquired by study or experience sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court: R. v Bonython (1984) 38 S.A.S.R. 45 (South Australia Supreme Court), which has been followed a number of times in this jurisdiction. By contrast, as was said by Bingham LJ in R v Robb (1991) 93 Cr App R 161; [1991] Crim. L.R. 539 a party “cannot fairly be asked to meet evidence of opinion given by a quack, a charlatan or an enthusiastic amateur.”
- Moving closer to the subject of this appeal, the Guidance from the Family Justice Council and the British Psychological Society (September 2023), entitled ‘Psychologists as Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations’ (‘the 2023 FJC/BPS Guidance’) proposes at [2.1] that:
“An expert is a person who, through specialist training, study, or experience, is able to provide a court, tribunal, or hearing with relevant scientific, technical, or professional information or opinion, based on skills, expertise, or knowledge, that is likely to be beyond the experience and knowledge of the representing lawyers, judge, jury or panel.”
That seems to us to be a satisfactory definition of an expert witness.
The Court of Appeal were mindful of the recent decision which did arise from instruction of an ‘expert’ who was reporting on parental alienation syndrome and had become somewhat known as a specialist in the area.
On 20 February 2026, in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38, the President returned to the issue of unregulated experts and alienating behaviour. Pending the outcome of a consultation being undertaken by the Family Procedure Rule Committee, he gave “firm guidance”:
“73. In future, permission should not be given under CFA 2014, s 13 for the instruction of an expert ‘psychologist’ who is neither registered by a relevant statutory body, nor chartered by the BPS. It would be good practice, before a potential expert is appointed, for them to be asked to state whether they hold an HCPC protected title, and if so what that is, before any order is made appointing them as an expert. The ‘registered or chartered’ requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.
Insofar as it relates to good practice in relation to the instruction of psychologists in family proceedings, we take this opportunity to endorse the guidance given in Re C and Re Y.
I’m not sure that personally I agree with the Court of Appeal’s decision to refuse the appeal (but that’s neither here nor there really and I’m sure that they will not lose any sleep over it). For me, the expert would not have been instructed had the Court been properly informed as to the issue over qualification and expertise, and the Court took account of the psychologist”s report and conclusions in making their determination. After all, the test for instructing an expert is that it is NECESSARY to resolve the proceedings justly – if the report is not a vital part of the decision-making then it doesn’t meet the test for having been commissioned in the first place.
It seems in this case that there wasn’t a formal Part 25 application – which is quite a compelling reason to require one, so that these things are properly ventilated.
Anyway, here is the Court of Appeal’s decision:-
Our conclusions
In order to succeed, the appellant must show that the decision under appeal was unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.21(3). Her case is (a) that Mr Flatman was not qualified to give the evidence he gave, and that this amounted to a serious irregularity, and (b) that the irregularity caused the decision to be unjust. In summary, we do not accept either contention. We do not consider that there was a serious procedural irregularity in the instruction of Mr Flatman, and it has not been demonstrated that that there was any irregularity arising from his work in this case. Even if it were it otherwise, we find that the judge’s decision was not unjust because it was securely based on the whole of the evidence, of which Mr Flatman’s opinion was but a part.
In relation to procedural irregularity, we accept that there were a number of shortcomings in the process that led to this expert instruction. From the outset, there was some laxity in the approach to the Part 25 procedure. Once the parties had agreed that a psychological assessment of the family was necessary, they rightly acted promptly. However, there was no formal application, accompanied by a draft order, and the court did not expressly dispense with that requirement. Instead it approved the instruction of a psychologist in principle, without giving thought to the type of expertise that was required, perhaps because the issues in the case were of a familiar kind. As a result, the court did not see a CV before it made its order. Then, the information disclosed by Mr Flatman about the ongoing HCPC complaint was not circulated and the opportunity for the parents or the court to take an interest in that matter never arose.
We do not excuse these instances of procedural slackness, but they do not amount to a serious procedural irregularity. The real question is whether they led to ‘other’ irregularity in the instruction of an unqualified expert.
As to that, the starting point is that (in contrast to the witness in Re C and Re Y) Mr Flatman was a psychologist who was regulated as an educational psychologist by the HCPC, and was chartered by the BPS. In addition he was extremely experienced, both as a practitioner and as an expert witness, so much so that the parties and the court were apparently content for him to be instructed without sight of his current CV. It would clearly have been preferable at any date for him to have presented himself as being an educational psychologist, perhaps in addition to being a chartered psychologist. However, the requirement in the 2023 FJC/BPS Guidance (see [21] above) to use the HCPC protected title, was not, so far as we are aware, a requirement that appeared in the 2016 FJC/BPS Guidance (see [19] above) or the BPS guidance that was current at the time (Psychologists as expert witnesses: Best practice guidelines for psychologists, July 2021).
Ms Madderson accepted that Mr Flatman was qualified to answer the ten questions regarding the children in his letter of instruction, but she submitted that none of the sixteen questions about her client was within his expertise. She was driven to submit that a clinical assessment of an adult in family proceedings could never be made by an educational psychologist. We do not accept that. The Family Court is regularly assisted by expert opinions from both clinical psychologists and educational psychologists. It is important that opinions are only given by suitably qualified experts and that there is clarity about the kind of expertise possessed by an expert and about the task that they are being asked to perform. However, the psychological assessment of a family will generally require expertise in assessing children, parents as individuals, parents as parents, and child-parent relationships. These elements are not sealed units but part of an organic whole. There will often be a considerable degree of overlap between issues and, as shown by the BPS descriptions of expertise (see [21] above) there is a degree of overlap between the skills possessed by clinical and educational psychologists. In many cases it will be neither possible nor helpful to seek to draw bright lines. The court has to take a broad, practical approach and to look to the substance of the matter, as well as taking account of witness availability within short timescales. There will be cases where one specialism or the other will plainly be more appropriate, for example where a problematic mental disorder in a parent makes it clear that assessment by a clinical psychologist is required. But where the court needs broad expert advice in the form of a whole-family assessment, a case might well be made for the instruction of an experienced educational psychologist. In our view this was the situation here. We therefore disagree with the counterfactual submission that the court would have been bound to reject Mr Flatman as a suitable expert in 2022 if it had known what is now known. It might or might not have selected another expert, if one had been available, but it would not have been obliged to do so.
Overnice distinctions between neighbouring psychology disciplines are likely to lead to unintended consequences that conflict with the policy behind the 2014 Act and the Rules. Commenting on CPR 35.4(3), the equivalent provision to FPR 25.8(1)(a) (see [14] above), Zuckerman on Civil Procedure (5th ed.) 21.43 states that the court’s policy is to limit the number of experts to the minimum compatible with the overriding objective. This clearly applies, equally or even more so, to children proceedings, where delay is presumed to be contrary to the child’s welfare. More than that, when it decides whether to give permission for an expert instruction the court must have regard to any impact of giving permission on the welfare of the child, including the impact of any examination or other assessment on the child’s welfare, that being the first listed matter under s.13(7) of the 2014 Act. The court will therefore strive to ensure that any necessary psychological assessment is carried out by one expert only, provided the witness’s expertise is sufficiently broad to undertake the essential elements of the instruction.
By the time of the hearing in 2023, Mr Flatman’s report was there to be judged on its merits. He did not make any clinical diagnosis in respect of the mother, but instead he expertly pulled together the available information in order to arrive at a formulation of what had gone wrong in this family. It would have been a matter for the judge to decide if he was qualified to administer the MCMI-III psychometric test, but he was not asked about that and the mother’s answers during the test were in any case invalid. It did not require psychological expertise to assess levels of insight, so Mr Flatman did not overreach his qualifications in expressing an opinion about that.
It should not be forgotten that the parties had the opportunity to test Mr Flatman’s evidence at trial. He could have been cross-examined about his qualifications, experience and opinions. As it was, the judge described his report as an extremely thorough and extensive assessment, and she found his oral evidence to be measured and helpful. She was entitled to reach these conclusions, and to rely on his evidence.
We are not therefore satisfied that there has been a serious procedural or other irregularity arising from the instruction or the evidence of Mr Flatman.
The second reason for dismissing the appeal is that, seen objectively, there has been no injustice in this case. The judge’s decision was based on the evidence as a whole and, while Mr Flatman drew matters together in his evidence, the other evidence so clearly supported the making of care orders that it is realistically impossible to envisage any other outcome. In this context, the evidence of the mother and F2 was of particular importance. Given the extent of the undisputed threshold findings and the chaotic state of their relationship, this was not a marginal decision and the return of the children could not safely have been contemplated.
Ms Madderson’s ingenious submission, that because the court had found that expert evidence was necessary it is therefore not possible to rescue the judge’s decision by excising it, fares no better. Even if we had found Mr Flatman to be unqualified, the appeal would not inevitably have succeeded. That would depend upon an assessment of the overall fairness of the proceedings. If the trial was unfair, the entire outcome would indeed have to be set aside (Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; [2020] 4 All ER 711 at [49]), but that begs the question, and here the trial was not unfair.
We add that we have taken no account of the expert opinion that was commissioned by the local authority after the issue with Mr Flatman’s credentials arose. That was a responsible course to take, so that the local authority could satisfy itself that its care orders rested on firm welfare foundations. We nevertheless see the force in the mother’s argument that an unscrutinised opinion obtained unilaterally outside of proceedings could not contribute to saving a previous unjust decision. From a legal perspective, the second opinion is either superfluous or unavailing, and we have found it to be the former.
For these reasons, we dismiss the appeal.
Guidance
The fact that an expert’s qualifications are called into question in one case may prompt parties in other cases to consider mounting a challenge to their own decision. However, as the present appeal shows, such challenges will only succeed where the trial court has accepted evidence from an expert who is later shown to have substantially overreached their expertise with clear consequences for the resulting decision. Where a genuine issue of this kind does arise, it is almost always likely to be more appropriate to make an application to the Family Court than to bring an appeal. An appeal court must decide whether or not to allow the appeal, perhaps long after the original order, with limited ability to measure the effect of its decision on the children concerned. By contrast the Family Court has the ability to gather up-to-date information when deciding how to proceed.
The most likely procedural vehicles for that are an application to discharge the care order under s.39 Children Act 1989, or an application for contact under s.34. In each case, the application is only likely to be allowed to proceed to a full hearing if an arguable case can be shown.
Alongside an application of that kind, a reopening of the previous findings might be sought by means of an application under the Part 18 procedure, as most recently described in Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465; [2023] 2 FLR 1206 at [5-9] and in Re Y at [32-35]. Whether that course is appropriate will be a matter of judgement. Much will depend on the extent to which the previous findings overhang the current situation. To take the present case as an example, it is not obvious that much would be gained after this passage of time by seeking to reopen the 2023 decision rather than by simply applying to discharge the care orders, if that was in any way a realistic prospect, on the basis of the current family situation.
suesspiciousminds 