H (Children: Expertise of Witness): Post‑order Challenges to an Expert’s Competence in Children Proceedings Should Normally Be Brought in the Family Court (Not by Appeal), and “Bright Lines” Between Neighbouring Psychology Disciplines Should Be Avoided

1. Introduction

H (Children: Expertise of Witness) [2026] EWCA Civ 249 is an appeal in public law children proceedings in which the mother sought to set aside care orders made in March 2023 in respect of three children (A, and twins B and C). The appeal was unusual because it was brought out of time and permission was granted in November 2025 primarily so that the Court of Appeal could give procedural guidance for similar cases.

The mother’s challenge focused on a single point: that a jointly instructed psychologist, Mr Graham Flatman, had (as later suggested by unrelated HCPC proceedings) acted outside the limits of his expertise, and that the trial judge had relied heavily on his evidence in making final care orders. No other criticism was made of the trial judge’s reasoning or welfare evaluation.

The appeal therefore raised two connected issues:

  • Expert competence/overreach: whether the expert’s professional standing and the nature of the instruction meant his evidence should not have been relied on (or should have been excluded/treated as materially defective).
  • Route of challenge: where an expert’s competence is questioned after final orders, whether the correct route is appeal or, instead, a Family Court application (e.g. to discharge the order and/or reopen findings).

2. Summary of the Judgment

The Court of Appeal dismissed the appeal. Applying CPR 52.21(3), the court held that the mother had not shown that the decision below was unjust by reason of a serious procedural or other irregularity.

In essence, the court concluded:

  1. No serious irregularity was established in the instruction or use of Mr Flatman’s evidence in this case, notwithstanding acknowledged “procedural slackness” in the Part 25 process and the failure to circulate his disclosure of an ongoing HCPC matter.
  2. No injustice resulted: the judge’s threshold findings and welfare conclusions were securely based on the evidence as a whole (including the mother’s and F2’s evidence), and the outcome was not realistically arguable as “marginal”.
  3. Procedural guidance: where a genuine post‑order issue arises about an expert’s competence, it will “almost always” be more appropriate to apply to the Family Court (e.g. discharge under s.39 Children Act 1989, contact under s.34, and potentially an application to reopen findings) rather than bring an appeal long after the event.

The court also endorsed good practice guidance from Re C ('Parental Alienation': Instruction of Expert) [2023] EWHC 345 (Fam) and Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38 concerning transparency and regulation/chartered status when psychologists are instructed.

3. Analysis

3.1 Precedents Cited

R. v Bonython (1984) 38 S.A.S.R. 45 (South Australia Supreme Court)

The court used R. v Bonython (1984) 38 S.A.S.R. 45 (South Australia Supreme Court) to restate the orthodox, flexible test of expertise: a witness is qualified if they have acquired by study or experience sufficient knowledge of the subject such that their opinion is of value to resolving the issues. This supports a functional approach to expertise—focused on whether the opinion assists—rather than a purely formalist approach tied to titles.

R v Robb (1991) 93 Cr App R 161; [1991] Crim. L.R. 539

The court invoked Bingham LJ’s warning in R v Robb (1991) 93 Cr App R 161; [1991] Crim. L.R. 539 that a party cannot fairly be asked to meet opinion evidence from “a quack, a charlatan or an enthusiastic amateur.” The reference sharpened the point that expert evidence must be credibly grounded; however, the court distinguished the present case because Mr Flatman was neither unregulated nor an amateur: he was HCPC‑registered (educational psychologist) and BPS‑chartered.

Re M & R (Minors) [1996] EWCA Civ 1317; [1996] 2 FLR 195; [1996] 4 All ER 239

Citing Re M & R (Minors) [1996] EWCA Civ 1317; [1996] 2 FLR 195; [1996] 4 All ER 239, the court noted the “modern view” that questions about expertise are often addressed by weight rather than admissibility. Importantly, the court then adapted that general proposition to the family context post‑2014: because the statutory code in s.13 Children and Families Act 2014 and FPR Part 25 requires judicial control and necessity, the court should ordinarily know about qualifications and experience before the expert is appointed—even if some boundaries remain judgment‑based rather than bright‑lined.

Re C ('Parental Alienation': Instruction of Expert) [2023] EWHC 345 (Fam) ('Re C')

Re C was central background authority on psychologists’ regulation and the need for clarity in CVs. The President’s observation that HCPC registration or BPS chartered status provides “very solid ground” was endorsed as good practice. The instant court treated this as reinforcing transparency in appointment and assisting lay readers (lawyers/judges) to understand the basis of expertise.

Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38

The court explicitly endorsed the “firm guidance” in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38 that, in future, permission should not be given under CFA 2014, s 13 for instruction of an expert “psychologist” who is neither statutorily registered nor BPS‑chartered, absent clear reasons. While the present appeal concerned an HCPC‑registered and BPS‑chartered psychologist (and therefore did not engage the “unregulated” problem directly), Re Y framed the broader policy context: competence screening at appointment.

Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; [2020] 4 All ER 711

Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; [2020] 4 All ER 711 was used to articulate the remedial principle: if a trial is unfair, the outcome must be set aside. The Court of Appeal used it to rebut the proposition that once the court has deemed expert evidence “necessary,” any later defect in the expert automatically invalidates the decision. The real question is overall fairness; here, the trial was not unfair and the decision was not unjust.

Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465; [2023] 2 FLR 1206

In giving procedural guidance, the court relied on Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465; [2023] 2 FLR 1206 (and also referenced Re Y) for the modern approach to applications to reopen findings via the Part 18 procedure. This supported the court’s core guidance: post‑order challenges of this kind are commonly better dealt with in the Family Court, which can obtain updated evidence and manage welfare consequences.

3.2 Legal Reasoning

(a) The governing appellate test: “unjust because of a serious procedural or other irregularity”

The mother’s route was an appeal, so the court applied CPR 52.21(3). Two elements mattered:

  • Irregularity: Was there a serious procedural irregularity (or other irregularity) tied to expert competence/appointment?
  • Causative injustice: Did it render the decision unjust?

This structured the judgment: the court first examined the instruction process (Part 25 compliance and disclosure), then the substance of expertise/overreach, and finally whether the outcome depended materially on the expert such that unfairness/injustice could be shown.

(b) Part 25 “slackness” was criticised but not elevated into a serious irregularity

The court acknowledged multiple departures from good practice: no formal Part 25 application notice, instruction “in principle” before the court considered the precise expertise required, no CV before appointment, and non‑circulation of the expert’s disclosure about an ongoing HCPC complaint. These were treated as real failings in case management and transparency.

However, the court stopped short of treating these as a serious irregularity. The decisive issue was whether these shortcomings resulted in the instruction of an unqualified expert, such that the proceedings became unfair or the outcome unjust. On the facts, the court found they did not.

(c) No “bright line” rule that an educational psychologist cannot assess a parent in a whole-family assessment

A central plank of the mother’s case was that the letter of instruction required a “clinical psychology” assessment of the mother and that an HCPC‑registered educational psychologist could not competently provide it, including administering the MCMI‑III.

The court rejected a categorical rule. It stressed:

  • Overlap of skill sets: drawing on the BPS descriptions of clinical and educational psychology, there is overlap relevant to family assessment (children’s development, family processes, parental functioning, relational dynamics).
  • Whole-family assessments are “an organic whole”: child assessment, parental assessment, and relationship assessment interlock and should not be treated as sealed units.
  • Practical welfare/efficiency policy: s.13 Children and Families Act 2014 and the no‑delay principle mean courts will often prefer one suitably broad expert rather than multiple specialists, provided competence is sufficient. The court warned that “overnice distinctions” between neighbouring disciplines may produce unintended consequences contrary to the statutory scheme.

This does not diminish the need for clarity in titles and competence; rather, it resists turning professional taxonomy into rigid admissibility rules where a competent, regulated expert can address the necessary questions.

(d) Substance over labels: what Mr Flatman actually did, and how it was tested

The court examined the actual content and use of Mr Flatman’s evidence:

  • He did not make a psychiatric diagnosis; he noted diagnosis of personality disorder is for psychiatric expertise.
  • The MCMI‑III results were invalid due to invalid disclosure, reducing any possible causal influence from that test on the court’s outcome.
  • “Insight” did not require psychological expertise as such; and the judge could assess it directly from the mother’s evidence and the broader record.
  • The parties had an opportunity to cross‑examine; he was not challenged on qualifications or the psychometric testing at trial.

The court treated these features as strongly undermining any claim that his alleged overreach created an unfair trial or tainted decision.

(e) The “no injustice” finding: the decision rested on a broad evidential platform

Even if some flaw had been shown, the court held the outcome was not unjust because the judge’s decision was securely supported by multiple professional witnesses and, critically, by the mother’s and F2’s evidence and extensive threshold findings. The case was not “marginal”; the court considered it “realistically impossible to envisage any other outcome.”

The court also declined to rely on the local authority’s later-commissioned clinical psychologist report: as a matter of legal analysis it was either “superfluous or unavailing,” and the court treated it as superfluous.

3.3 Impact

(a) Clear procedural steer: challenge in the Family Court, not by late appeal

The principal forward-looking guidance is at [71]–[73]: where an expert’s competence is called into question after final orders, it will “almost always” be more appropriate to proceed by application to the Family Court (rather than appeal). The court’s rationale is practical and child-focused: the appeal court is ill-equipped, often years later, to measure welfare consequences, whereas the Family Court can obtain current evidence and craft proportionate welfare-driven directions.

The judgment identifies likely procedural vehicles:

  • s.39 Children Act 1989 (application to discharge the care order);
  • s.34 Children Act 1989 (contact applications);
  • Part 18 application to reopen findings, guided by Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465; [2023] 2 FLR 1206 and Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38.

(b) Reinforcement of the “regulated or chartered” direction for psychologists

By endorsing Re C and Re Y, the court reinforced a developing expectation that psychologists instructed under s.13 Children and Families Act 2014 should ordinarily be HCPC‑registered or BPS‑chartered, and should clearly state protected titles and regulated status. This strengthens gatekeeping at appointment and should reduce later disputes over competence and transparency.

(c) Pragmatic approach to competence boundaries

The decision cautions against rigid demarcation between neighbouring psychological disciplines in whole-family assessments. The likely impact is to:

  • encourage task-focused drafting of letters of instruction (with questions kept within the nominated expert’s competence as required by PD25C 3.11);
  • support courts in permitting a single suitably broad expert where welfare and no-delay considerations make that proportionate;
  • frame disputes about borderline competence as matters of evidence evaluation and fairness, rather than automatic nullity.

4. Complex Concepts Simplified

4.1 What is an “expert,” and why does “protected title” matter?

An expert is someone whose specialist opinion can assist the court on matters outside ordinary knowledge (see s.3 Civil Evidence Act 1972 and the definition discussed via R. v Bonython (1984) 38 S.A.S.R. 45 (South Australia Supreme Court)). In psychology, the HCPC regulates “practitioner psychologists” and protects certain titles (e.g. “clinical psychologist,” “educational psychologist”). Using a protected title without being entitled to do so is legally significant; separately, it is important for the court to understand what the expert is actually trained and competent to do.

4.2 What is the “Part 25” permission regime?

In children cases, expert evidence is tightly controlled by s.13 Children and Families Act 2014 and FPR Part 25. The court must decide the evidence is necessary, identify the expert, and ensure the questions are within the expert’s expertise (see, in particular, the requirements highlighted from PD25C 3.10–3.11 and PD25B duties to stay within competence and say so if asked to go beyond it).

4.3 What counts as a “serious procedural irregularity” on appeal?

Under CPR 52.21(3), it is not enough to show that something went wrong; the appellant must show the decision was unjust because of a serious irregularity. Here, even though the appointment process was criticised, the court found no demonstrated overreach in this case and, in any event, no injustice because the result was strongly supported by other evidence.

4.4 Why is a Family Court application usually better than an appeal in this situation?

An appeal looks backwards and is constrained by the original record. By contrast, the Family Court can look at the children’s current welfare reality, obtain updated assessments, and decide what (if any) change is safe and proportionate—hence the court’s steer towards s.39 discharge applications (and related routes), sometimes alongside an application to reopen findings.

5. Conclusion

H (Children: Expertise of Witness) [2026] EWCA Civ 249 confirms that late challenges to family orders founded on alleged expert overreach face a high bar on appeal: the appellant must show a serious irregularity and resulting injustice under CPR 52.21(3). The court rejected a rigid rule that an educational psychologist cannot provide parental assessment within a whole-family psychological instruction, emphasising overlap of competence and the welfare-driven policy of limiting expert proliferation under s.13 Children and Families Act 2014.

Most significantly, the court gives practical guidance for future cases: where an expert’s competence is later questioned, the normal and preferable route will be a Family Court application (e.g. s.39 Children Act 1989, potentially coupled with an application to reopen findings), rather than a delayed appeal that risks destabilising children’s arrangements without the benefit of current welfare evidence.