England’s most senior family court judge has advised there is a “need for rigour” and “clarity” when instructing psychologists to give expert evidence – but has stopped short of saying the family courts should never appoint those who are “unregulated”.
Instead Sir Andrew McFarlane claims it is a matter for the psychological profession, and ultimately parliament, whether a “tighter regime should be imposed” on what he has described as a “confusing system”.
The president of the family division in England and Wales made the comments in a landmark judgment published on Wednesday that confirms the generic label “psychologist” is not protected and “can be used by anyone”.
His conclusions follow intense debate and various guidance over the years about the the definition of a psychologist and who can use that term when assisting the court.
Psychologists can be appointed in cases where judges are making life-changing decisions about children such as placing them in care, transferring residence between parents in conflict or deciding where they should live after allegations of abuse
The judgment follows an appeal by a mother who was seeking a re-hearing of her case after her children were removed from her care. She claimed the jointly instructed expert on “parental alienation” who assessed her family was neither regulated nor appropriately qualified.
Judge Lindsay Davies ordered that the children should live with their father – against their wishes – after accepting Melanie Gill’s findings that the mother had “alienated” them from him. She stressed that she also considered other evidence, including the mother’s own evidence, before making the order.
The appeal was opposed by the father and the children’s guardian but was supported by the Association of Clinical Psychologists (ACP-UK) as an intervenor along with Gill.
Representing the professional body, Barbara Mills KC submitted that Gill’s instruction was a “stark and troubling example of an individual who holds herself out as an expert but has neither the qualifications nor the relevant skills so to hold”.
Andrew Bagchi KC rejected the criticisms of Gill, claiming she was an expert and that the burden was not on her to prove her qualifications. He said she made clear at the outset what the scope of her work would entail.
Mills argued that, in the absence of regulation, the onus was on Gill to satisfy the court she was properly qualified.
But McFarlane rejected the appeal during a public hearing in December. The judgment lays out his reasons and addresses the wider issue of experts.
He wrote: “From the perspective of the court, and it may be from a wider public perspective, the open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing.
“In other fields, particularly medicine, the court is used to a stricter regulatory scheme in which an individual can only call themselves a professional title … if recognition of their expert status is confirmed and monitored through formal regulation and registration.
“It is, however, a matter for the psychological profession and, ultimately, parliament, whether a tighter regime should be imposed.”
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The only psychologists subject to statutory regulation in the UK are those registered with the Health and Care Professions Council (HCPC) who hold one of seven protected titles such as “clinical psychologist”.
But the generic label “psychologist” is not protected and can be used by anyone, whether registered or not. A report by an unregistered person calling themselves a psychologist may be called a “psychological report”.
McFarlane writes: “The court must therefore work with the current, potentially confusing scheme, but must do so with its eyes wide open to the need for clarity over the expertise of those who present as a psychologist, but who are neither registered nor chartered.”
He goes on: “A lesson plainly to be drawn from the present case is the need for clarity as to an expert’s qualification and/or experience.”
Earlier in the judgment, it was noted that Gill had been selected by the children’s guardian and put forward erroneously as “Dr Gill”. Her CV was a “diffuse and confusing narrative,” wrote McFarlane, adding: “It would have been hard for the court and the parties to drill down to see what her underlying qualifications were.”
Registration with the HCPC or charted status with the British Psychological Society provides a “reliable one-stop method of authentication”, he said.
“It is not, however, for this court to prohibit the instruction of any unregulated psychologist,” he added. He said the matter of whether an expert is “qualified to give expert evidence” is down to the individual judge in each case.
Where an expert is unregistered, the court should indicate in a short judgment why it is appropriate to instruct them, McFarlane advises.
“Given the potentially confusing use of the title ‘psychologist’, the need for due rigour is underscored,” the president wrote.
Turning to the use of the label ‘parental alienation’, MacFarlane said he strongly urged that the ACP-UK’s view – that the term is not a syndrome capable of being diagnosed – is accepted.
Instead, according to the organisation, the process of the manipulation of children – perpetrated by one parent against the other through, what are termed, as ‘alienating behaviours’ – is “fundamentally a question of fact”.
McFarlane wrote: “Most family judges have, for some time, regarded the label of ‘parental alienation’ and the suggestion there may be a diagnosable syndrome of that name, as being unhelpful.
“What is important, as with domestic abuse, is the particular behaviour found to have taken place…and the impact that behaviour may have had on the relationship of a child with either or both of his/her parents.
“In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
