PARTS OF THE EXPERT’S REPORT SHOULD HAVE BEEN A RED FLAG TO LAWYERS: JUDGE CONSIDERS WHETHER THE PARTIES HAD INSTRUCTED THE CORRECT EXPERT

In M v F & Anor [2022] EWFC 186 Recorder Reed set out the importance of an expert knowing, and complying with, the rules relating to the presentation of expert evidence.  The judgment also emphasises the importance of the lawyers ensuring that they have instructed an appropriately qualified expert, checking their c.v. and ensuring that the expert knows, and has complied with, the rules and guidance relating to expert evidence.

THE CASE

The family court was considering various applications relating to residence and travel of a 14 year old girl.  One of the issues was the risk of the girl entering a forced marriage. An application for a “full psychological assessment” of the family was made.  An expert was instructed, Dr X (the names are anonymised). However Dr X was an eminent academic psychologist and not a clinical psychologist. Further the report did not comply with the relevant rules or Practice Directions.

In oral evidence Dr X confirmed that they had only completed ‘four or five’ reports for the Family Court and they were not familiar with the provisions of the Practice Direction. This latter confirmation is unacceptable. It is a core duty of any expert instructed in proceedings of this sort to read instructions, to read all documents and to be familiar with the applicable rules and practice directions. I am satisfied from considering the letter of instruction that these were sent to Dr X and that Dr X was directed to them at the outset of their instruction (although it would have been better if the letter had been more specific rather than incorporating by reference to an annex). In my view, the absence of a correct declaration should have been a red flag to the lawyers in the case which should have prompted query or further scrutiny. The court is entitled to expect that experts will read their instructions properly and be familiar with the basic expectations that the family court has of experts working in this field.”

THE JUDGMENT IN RELATION TO EXPERT EVIDENCE

Each of the parties was relying on parts of Dr X’s evidence for their own purpose.  However the judge observed that there had been a failure to consider whether Dr X was the appropriate expert, to instruct them properly and to ensure that the report answered the questions posed and was compliant with the rules and practice directions.

    1. I need to deal with a number of issues relating to Dr X’s evidence. I preface my remarks with a clear acknowledgment of Dr X’s obvious expertise in relation to forced marriage and domestic abuse in South Asian communities and as an academic psychologist specialising in forensic psychology. Dr X’s explanation of how coercion can operate powerfully but insidiously in communities or households which operate in line with collectivist honour cultures, and where the concepts of shame and honour hold power, was important and helpful in understanding the mother’s experiences in this case. I also make clear that Dr X has acted in good faith in carrying out their assessment and in giving evidence.
    1. However, standing back, it is now apparent that there was a collective lack of focus or clear consensus on what sort of assessment was being sought and obtained – and of what sort of expertise was required, what questions were required to be answered and how that matched with the expertise of Dr X specifically. Through careful scrutiny of Dr X’s CV and report I was able to ascertain that Dr X’s expertise was as an academic not a practitioner. As such, they are not registered with the HCPC. Registration is not a mandatory pre-requisite when the court appoints a psychological expert, and it is open to the court to appoint an unregistered psychologist, usually where that psychologist is an academic who holds Chartered Psychologist status as Dr X does. However, the task Dr X was set was broader than a simple exposition of the way in which cultural or religious issues work to give rise to risks around forced marriage or honour based abuse, and encompassed questions that would usually be answered by a practitioner psychologist, where registration is mandatory. Dr X is not a clinical psychologist qualified to make a diagnosis. It is not clear to me that any of the professionals had considered or appreciated these matters until I queried them.
    1. it is unclear from my reading of the Practice Direction, current guidance issued by the BPS and Family Justice Council or from the HCPC website whether or not registration is required where an expert in forensic psychology who is primarily an academic rather than a practitioner psychologist carries out expert work that involves assessment of individual parties. Dr X evidently does not think this is required. Clarification would be useful.
    1. Although in the end, I have been able to make use of Dr X’s expertise and to reach sound decisions in this case, in another case the collective failure to identify what the report did not provide could have led to poor decision making or further delay in reaching a decision – because Dr X’s expertise was not a good match for all of the wide-ranging questions posed.
    1. Pursuant to para 4.1 of PD25B it is the duty of an expert in children proceedings (amongst other things):
i) to comply with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to this Practice Direction
ii) to answer the questions about which the expert is required to give an opinion
iii) to con?ne the opinion to matters material to the issues in the case and in relation only to the questions that are within the expert’s expertise (skill and experience);
iv) where a question has been put which falls outside the expert’s expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved.
    1. Those matters should have been at the forefront of the minds of those instructing and the expert.
    1. By paragraph 9.1 of PD25B the expert’s report in children proceedings must contain (amongst other things):
i) a statement (verified by a statement of truth) confirming that the expert is aware of the requirements of FPR Part 25 and this practice direction; and that
ii) they have complied with the Standards for Expert Witnesses in Children Proceedings in the Family Court which are set out in the Annex to Practice Direction 25B.
    1. No such statement was contained in the report. Instead there was a statement of truth in entirely different terms which referred to an unidentified tribunal.
    1. When the application was made it was said to be variously for a ‘risk assessment’ or a ‘full psychological assessment’. Dr X has, in terms, not provided a risk assessment, or at any rate not a standalone risk assessment, as they have been at pains to point out in their reports and oral evidence, in flagging the need for the report to be read in conjunction with a risk assessment of the wider family. Dr X repeatedly emphasised in writing and in oral evidence that there ‘may’ be a risk of honour-based abuse or spiritual abuse or forced marriage, but it was not until I pressed Dr X that Dr X offered any indication of the level of risk (in each case they said low/minimal). That there ‘may’ have been such a risk was the whole reason for the assessment. Quantification of that risk was (along with assisting the court and parties to understand the mechanisms, nature and source of the risk) surely one of the main purposes of the exercise.
    1. Nor is the assessment a ‘full psychological assessment’. It is described on its face as an ‘independent psychological assessment’. However, Dr X’s oral evidence made clear that they did not consider themself to be conducting a ‘full psychological assessment’, but merely answering the (22) questions they had been posed. A number of those questions were the sort of questions which I would ordinarily expect a clinical psychologist to deal with, and I would expect those questions to have prompted more detailed responses than were provided, as part of an overall psychological formulation (there was some limited psychometric testing, relatively short single interview and some brief treatment of medical records). What appeared on superficial consideration to be a diagnosis of CPTSD for the mother was confirmed in oral evidence to be no such thing, because Dr X is not qualified to make a diagnosis. Dr X confirmed to me that they only used psychometric tools which did not require accreditation. Those tests were heavily caveated, and their results therefore of limited assistance.
    1. When the Guardian referred in her report to the mother’s diagnosis of CPTSD I assumed that she must have understood Dr X to have made a diagnosis, but in fact the guardian told me that she had not understood Dr X’s to have made a diagnosis, but rather had been careless with her own wording in her analysis. I am bound to say that a diagnosis of a mental health condition is a serious thing and it seems to me it is incumbent on any expert or professional to take great care when distinguishing between possible symptoms consistent with a condition and a diagnosis.
    1. Dr X did not answer the question relating to the child’s attachment to her parents at all and nor did they explain why they had not done so in her report. Surprisingly, nobody queried this omission in either written questions or in cross examination. In response to a question from me, Dr X confirmed that in fact they had not done this because a fire alarm at school on the day of the assessment meant they had run out of time to conduct the necessary testing. That being the case, I do not understand why this was not explained until I asked about it. I do not understand why no further attempt was made to ensure the question was answered as directed by the court.
    1. I was compelled to ask a number of questions of Dr X in the course of their evidence. My focus in asking questions of the expert in this case was on ensuring that I understood the nature of the expert evidence I had, in order to assess the extent to which I could properly rely upon it. In many respects I have found it helpful. However, since none of the parties were inclined to deal with the foundational issues I have set out above, each relying on different aspects of the report to support their contradictory positions, it fell to me to do so. It was not a comfortable position to be in.
    1. Regrettably, it was left to the court to explore the apparent non-compliance with PD25B. Undoubtedly this was not a comfortable experience for Dr X, but I strove to be fair with Dr X in trying to clarify the position.
    1. Following the conclusion of her evidence Dr X sent a letter to the court. In that letter Dr X expressed that they wished to confirm their ‘credentials as a legitimate expert witness in this case’. As I was at pains to make clear to Dr X during their evidence, Dr X’s expertise in relation to honour based violence and forced marriage was plain. It is also clear that, as a Chartered Psychologist, the court was fully entitled to appoint Dr X as an expert on matters within their expertise. What is less clear is whether, when making the decision to instruct, it was appreciated that Dr X was not a practitioner psychologist. Dr X refers me to the guidance from the ACPUK states that ‘an academic psychologist may be useful to the court to consider specific matters within their area of research expertise’. The quoted guidance goes on to say that academic psychologists ‘should not be used to assess individuals, make diagnoses or formulations, or be asked to give recommendations about therapy’. And yet Dr X was instructed to do just that, and accepted those instructions.
    1. Dr X’s report is headed on each page ‘Specialist field: Forensic psychology; Domestic abuse in South Asian Communities’. Dr X has an impressive CV detailing their experience as an academic working in the field of forensic psychology and domestic abuse in south Asian communities. However, since over a decade ago when Dr X was a Forensic Psychologist Trainee, it appears Dr X has been in a primarily academic role. This explains why Dr X is not registered with the Health Care and Professions Council – Dr X is not a practitioner psychologist. Dr X distinguishes stating their field of professional expertise as forensic psychology from use of the protected title ‘Forensic Psychologist’ (protected title holders are required to register). As Dr X pointed out to me they are a Chartered Scientist and a Chartered Psychologist, but it is not clear to me whether this was clear to the parties or the court at the point of instruction or at all until I pointed it out.
    1. Whilst the guidance and rules clearly do permit the instruction of an expert psychologist who is Chartered rather than an HCPC regulated practitioner psychologist, it must also be right that the court, the parties and the expert should be clear about whether or not the piece of work expected is within the competence and expertise of the expert in question. For what was no doubt a combination of reasons, I am not confident that that happened in this case, and it is regrettable that it was not picked up. Save to the limited extent set out below, I don’t think it is helpful or necessary to try to apportion blame for that, but it is necessary to deal with the issue as it arose during the hearing I presided over so that the basis upon which I have relied upon the expert evidence of Dr X can be understood.
    1. In oral evidence Dr X confirmed that they had only completed ‘four or five’ reports for the Family Court and they were not familiar with the provisions of the Practice Direction. This latter confirmation is unacceptable. It is a core duty of any expert instructed in proceedings of this sort to read instructions, to read all documents and to be familiar with the applicable rules and practice directions. I am satisfied from considering the letter of instruction that these were sent to Dr X and that Dr X was directed to them at the outset of their instruction (although it would have been better if the letter had been more specific rather than incorporating by reference to an annex). In my view, the absence of a correct declaration should have been a red flag to the lawyers in the case which should have prompted query or further scrutiny. The court is entitled to expect that experts will read their instructions properly and be familiar with the basic expectations that the family court has of experts working in this field. Had Dr X read the materials to which they were signposted I am sure it would have assisted them in the preparation of the report and in giving their evidence, given that Dr X has so far limited experience in giving evidence in this specialised forum.
    1. Both the longstanding provisions of PD25B and more recent guidance from various sources has or should have raised awareness of the need for experts to properly and transparently set out their qualifications, regulatory status and expertise in a way that does not give rise to a risk of confusion, and for those instructing to properly scrutinise those credentials, and to ensure proper focus on the scope and nature of any assessment to ensure a proper match. Had this taken place the assessment would have been tighter and any omissions or difficulties properly identified and flushed out.
    1. Although Dr X is clearly correct to say they have expertise in forensic psychology, I think with the benefit of hindsight it is unfortunate that Dr X’s CV for family court work unfortunately does not state that they are not registered with the HCPC. Dr X told me that ‘On reflection maybe I could have put more boldly’ that they were not registered, but that ‘I think came very openly as a chartered and not forensic psychologist’. I am sure that Dr X had no intention to confuse or mislead. However, I certainly did not pick up immediately that Dr X was neither a practitioner forensic psychologist or a clinical psychologist and nor, I think, did anyone else. Had there been an explicit reference to Dr X being an academic psychologist in their CV (or had the proper checks on HCPC status been carried out by one of those involved in the case) there would have been no doubt as to the basis of instruction, and I anticipate that the terms of instruction would have been either more focused to Dr X’s particular expertise, or (if it was felt that a practitioner forensic/ clinical psychologist with cultural competence was required) then a different or additional expert would have been instructed.
    1. Turning to the substance of Dr X’s evidence. Whilst Dr X’s evidence was helpful as to the general risks associated with south Asian honour based collectivist communities, and I rely upon it, I think I must be cautious as to how far I can apply that general learning to a specific family, even where one of the parties is able to give a first hand account of the past behaviour of that family. My decisions must be based on the specific evidence before me and I must not fall into the trap of using the general learning to create and apply stereotypes to unassessed individuals who have not been asked to give their account. Other than a brief conversation with the Guardian in the course of the preparation of her s7 report, and some very basic checks, no assessment of any individual family member’s current circumstances or attitude has been attempted – and no party has sought it (and nor was Dr X asked to carry this out).
    1. Whilst Dr X’s report and oral evidence was explicitly caveated, I was confused by their oral evidence when she said in response to a question on behalf of the father that their opinion was ‘based on the discussions I’ve had and the information presented. To make a robust consideration it also needs to be boosted with further information about family members. This can only be based on close discussions with family. Risk assessment is not possible, essentially.’ When I asked Dr X what this meant in terms of the reliance I should place on their assessment of risk, Dr X said they were ‘confident’ and there was enough information to make an assessment.
    1. Dr X confirmed in oral evidence that in their view the mother’s marriage was forced because there was clear evidence of coercion, and it was arranged without her informed consent. Dr X also placed substantial reliance on the description of the mother not seeing her husband’s face until after the marriage because her glasses had been removed from her. Based on the mother’s description of events as they are recorded in the report (which were not challenged in cross examination), the arrangements do seem to meet the definition set out above, and potentially the slightly different definition in s63A Family Law Act 1996. The somewhat different description given in the mother’s subsequent oral evidence has meant that I have needed to reconsider some of the specifics of the account set out in Dr X’s report, but importantly, Dr X explained that coercion can operate insidiously over time so that a person who is immersed in a culture does not realise its influence upon their behaviour as expectations become normalised. Dr X helpfully unpacked what they meant by a collectivist culture:
‘there is a difference between more European cultures where there is a focus on the individual and South Asian cultures where the focus is on community and culture…in European cultures we talk about ‘I’ but in collectivist cultures its ‘we’. What is important for ‘we’ often has more emphasis than what is important for ‘I’. It can be extremely powerful and it can be extremely wonderful. It has many benefits. Unfortunately, it is my opinion that M’s experiences of ‘we’ were overemphasised and her experiences of ‘I’ were under emphasised. She was coerced to behave in a way that was acceptable for ‘we’. Haram and shame played a fundamental part in controlling the way she was expected to behave.’
    1. When I invited Dr X to consider whether the term ‘conditioning’ was a helpful way to capture this process, they agreed. The risk, said Dr X was of psychological coercion, communicated by words and expectations (sharam and izzat) – and it would be subtle but powerful.
    1. When asked to consider the risk to S in light of the history Dr X did not think that a FMPO was warranted. Dr X considered that regular contact between S and her father would be a protective factor. In general, having contact with a wide range of different people from different backgrounds would allow S to make her own informed decisions rather than being totally immersed in a traditional culture that might operate in a harmful way.
    1. Dr X told me that although the risk would increase to a degree if the mother moved to the S area with S, ‘I also believe that M would go to extreme lengths to try and protect daughter from any exposure to this.’ The risk would be reduced the more support she has.
    1. When asked to quantify the risk, Dr X stated that the risk to S of forced marriage was not high, and not medium but ‘minimal’. It would be based on coercion i.e. psychological not physical. The risk of other honour-based abuse was also said to be ‘minimal’. Here Dr X noted the mother’s history of having behaved throughout her adult life in ways that contradict expectations for a South Asian woman and of standing firm and defending herself despite extreme pressure. Thus, said Dr X, the mother was ‘pivotal’ in terms of protecting S. Any risk of honour-based abuse or forced marriage came from the family or community not the mother.
    1. Dr X also confirmed that S ‘is not her mother’ and is in a different position than her mother was when she was subjected to honour-based abuse. She is a child of dual heritage and raised as such. She is mingling with a wider cultural background and is confident, competent and self-assured.
    1. Having established that Dr X was merely reporting symptoms consistent with CPTSD rather than diagnosing it, Dr X told me they did not think that this condition / symptom set would reduce M’s ability to safeguard S. The recommendation for culturally competent counselling i.e. counselling delivered by someone with understanding or experience of south Asian collectivist / Muslim culture and issues around honour based abuse / domestic abuse, was designed to improve M’s wellbeing and to help her process her traumatic experiences, which would overall benefit S and specifically would booster M’s protective capacity and resilience in the face of any coercion that might come to bear upon S directly or through her. That counselling should take place as soon as possible, but it need not be completed or even started before a move. It would probably take six months or more to complete. Dr X made clear that taking the first step to identify a suitable counsellor who might provide services online, would be a ‘big, bold step’.
    1. Dr X refined the recommendation regarding work for the father by suggesting he should contact the local mosque or college groups or outreach groups to learn more about Islam on the ground, rather than undertaking an academic course. Dr X opined that the father had himself probably experienced secondary trauma having listened to M’s account of her own experiences and supported her in the years that followed, witnessing her upset.
  1. Asked about the father’s contact, Dr X stated that the quality rather than the frequency of contact was most important. Dr X felt unable to comment on frequency.