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H (Children: Expertise of Witness)
Factual and Procedural Background
On 19 February 2026 an appeal was heard from care orders made in March 2023 by Judge Gillespie concerning three children. The Appellant (the children's mother) contended that a jointly instructed expert psychologist ("Expert") had acted outside the limits of his expertise, rendering the orders unsustainable. The Family Court proceedings began in February 2022. Company A (the local authority) and the Guardian arranged for the instruction of the Expert to provide a psychological assessment; he carried out inquiries in May 2022 and produced a report on 22 July 2022 and gave oral evidence at the final hearing in March 2023. When accepting instructions the Expert disclosed an ongoing complaint to Company B, but that disclosure was not passed to the parents or the court. Company B later upheld a complaint arising from an unrelated 2018 matter, and imposed a six-month suspension in April 2024. The Appellant complained to Company B in May 2024 and applied for permission to appeal in September 2025; permission to appeal out of time was granted in November 2025 with a condition under CPR 52.18 that the children were not to be informed. The appeal was dismissed for the reasons given in the opinion.
Legal Issues Presented
- Whether the Expert acted outside his professional competence such that his instruction or evidence amounted to a serious procedural irregularity rendering the trial decision unjust.
- Whether an appeal was the appropriate procedural vehicle for challenging the Expert's qualifications or whether relief should ordinarily be sought by application to the Family Court (for example under s.39 Children Act 1989 or Part 18 reopening procedures).
Arguments of the Parties
Appellant's Arguments
- The judge's decision was heavily reliant on the Expert's assessment, but the Expert was acting beyond his lawful competence when assessing the mother and administering the MCMI-III; this was a serious procedural irregularity making the decision unjust.
- Had the Expert's credentials been clear, he would not have been instructed; the remedy sought was to set aside the care orders and replace them with interim orders while a lawful reassessment took place.
- In oral submissions the Appellant withdrew a submission that it was "unlawful" per se for the Expert to act, and instead relied upon breach of Company C (BPS) guidance as a basis for allowing the appeal.
Respondent's Arguments (Company A)
- The Expert did not act outside his professional expertise: he was registered with Company B as an educational psychologist and chartered by Company C, and did not hold himself out as a clinical psychologist.
- The BPS/Family Justice Council guidance is advisory and would not, without more, render the evidence inadmissible; questions about specific testing would have required evidence from the Expert at trial.
- Even if the Expert had exceeded his expertise, the judge's findings and welfare conclusions were open on the basis of other, substantial evidence; the local authority also commissioned a later clinical psychologist report (August 2024) which supported the welfare conclusions.
- The appropriate procedural route to challenge expert evidence is normally by application to the Family Court rather than by appeal; an appeal is not the usual vehicle for this sort of complaint.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. v Bonython (1984) 38 S.A.S.R. 45 | Definition of when a witness is qualified to give expert evidence (sufficient knowledge by study or experience). | The court cited it as the judicial touchstone for defining expertise. |
| R v Robb (1991) 93 Cr App R 161; [1991] Crim. L.R. 539 | Warning that courts should not accept opinion evidence from a "quack, a charlatan or an enthusiastic amateur." | Used as a contrast to emphasise the need for genuine expertise. |
| Re M & R (Minors) [1996] EWCA Civ 1317; [1996] 2 FLR 195; [1996] 4 All ER 239 | The modern approach is to regulate expert evidence by reference to weight rather than admissibility. | The court relied on this principle in assessing whether expertise should have been excluded or its weight assessed at trial. |
| Re C ('Parental Alienation': Instruction of Expert) [2023] EWHC 345 (Fam) | Emphasised the value of Company B registration or Company C chartered status as clear indicators of qualification for psychologist experts. | The court endorsed Re C's approach and its invitation to improve clarity about experts' registration/status. |
| Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38 | Guidance that, ordinarily, permission should not be given to appoint an expert "psychologist" who is neither registered by a relevant statutory body nor chartered by Company C. | The court endorsed the guidance in Re Y as good practice when instructing psychologists. |
| Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; [2020] 4 All ER 711 | If a trial is unfair due to procedural irregularity the entire outcome may need to be set aside. | The court applied the principle to explain that success would require demonstration that the trial was unfair; it concluded the trial was not unfair here. |
| Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465; [2023] 2 FLR 1206 | Procedure and principles for reopening findings of fact under Part 18. | The court referenced Re J when discussing Part 18 as a potential route to revisit earlier findings. |
Court's Reasoning and Analysis
The court analysed (a) whether there had been a serious procedural or other irregularity in the instruction/evidence of the Expert, and (b) whether any such irregularity caused injustice. It accepted there had been procedural shortcomings (departure from Part 25 procedure; no CV before the court; the Expert's disclosure about Company B proceedings was not circulated). However, these matters did not amount to a serious procedural irregularity. Substantively, the Expert was registered with Company B as an educational psychologist and chartered by Company C, with extensive experience as a practitioner and expert witness. The court considered the overlap between educational and clinical psychology in family practice and rejected a rigid rule that an educational psychologist could never assess an adult parent. The court concluded the Expert did not overreach in the case: he made no clinical diagnosis of the mother, his use of psychometric testing produced invalid results for the mother's MCMI-III, and assessments of parental insight did not require clinical-only expertise. The judge at trial had the Expert's report and tested his evidence; the judge found the report thorough and accepted the Expert's oral evidence. Finally, even if the Expert had been unqualified in some respects, the court found the overall evidence (including the mother's and Father 2's evidence and other professional evidence) so strong that it was impossible to envisage a different outcome; thus no injustice had been caused.
Holding and Implications
DISMISSED
Holding: The appeal was dismissed. The care orders remain in force.
Implications: The court found no serious procedural irregularity or resulting injustice from the instruction or evidence of the Expert. It emphasised that challenges of this kind are normally more appropriately dealt with by application in the Family Court (for example under s.39 Children Act 1989 or by Part 18 reopening procedures) so that up-to-date information can be gathered and the welfare of the children properly managed. The court endorsed the guidance in Re C and Re Y regarding clarity about psychologists' registration and status. No new binding precedent beyond the court's explained approach was created.
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