New rules end use of most unregulated expert witnesses in family courts

The use of unregulated expert witnesses in family court proceedings involving children has been significantly restricted under amendments to the Family Procedure Rules that came into force on 20 July.

The changes mean that, in most children cases, courts may only appoint expert witnesses who are regulated by a UK statutory body, are on a register accredited by the Professional Standards Authority for Health and Social Care, or are regulated by an approved regulator under the Legal Services Act 2007.

Registered social workers are regulated by Social Work England and therefore fall within the category of regulated experts under the amended rules. The reforms are primarily aimed at restricting the use of unregulated experts, particularly in psychological assessments, rather than changing the role of regulated social work experts. Social workers instructed to provide independent expert evidence will, however, continue to need to demonstrate that their expertise is necessary and within their professional competence, in line with existing rules governing expert evidence.

The amendments follow widespread concern over the use of some psychologists as expert witnesses in private law disputes over child arrangements, including cases involving allegations of domestic abuse and other harm. Some experts appointed by the courts were not regulated by a professional body, prompting criticism over the quality and reliability of assessments used in judicial decision-making.

Earlier this year, President of the Family Division Sir Andrew McFarlane set out new guidance in Re Y (Experts and Alienating Behaviour: The Modern Approach), stating that permission should not ordinarily be given for the instruction of a psychologist who is neither registered by a relevant statutory body nor chartered by the British Psychological Society.

Under the amended rules, courts may only instruct an unregulated expert where no regulated expert is available because the issue can only be resolved by someone without recognised regulation, or where appointing a regulated expert would cause significant delay that would not be in the child's best interests. Judges must explain why an exception has been made, including the steps taken to identify a regulated expert.

Dr Jaime Craig, Chair of the Association of Clinical Psychologists UK, welcomed the reforms following years of campaigning by the organisation.

He said: "Following years of lobbying the family justice system, parliamentarians and policy makers, a high court intervention and raising public awareness in the media the Association of Clinical Psychologists UK campaign to restrict the use of unregulated experts in the family courts has led to a change in the rules."

However, he warned that the changes do not completely remove the risk of unsuitable expert evidence.

"It is not perfect, by introducing a definition of 'regulated expert' to include not just those regulated by a UK statutory body but also those on voluntary membership registers accredited by the Professional Standards Authority for Health and Social Care - the potential for confusion and need for vigilance in implementation will remain high."

Dr Craig reiterated the association's longstanding position on psychological expert evidence.

"In terms of psychological expert evidence Association of Clinical Psychologists UK 's longstanding position for many years has been that only HCPC-regulated practitioner psychologists should be given permission to come into contact with a child or adult to medically, psychologically or otherwise assess them for the purposes of provision of evidence."

He also stressed the importance of those instructing experts ensuring appropriate safeguards are followed.

"In ensuring that the available safeguards provided by these rule changes are effective in preventing further harms through the misuse of expert evidence and pseudoscience in our family courts, it will be vital that all membership organisations with PSA accredited registers hold their members to account and that those instructing expert witnesses follow the Family Justice Council guidance and do their part to uphold the public protection principles in these rules changes. Crucially if psychological assessment evidence is needed this means checking the register The Health and Care Professions Council."

Looking beyond the family courts, Dr Craig said similar protections should be introduced elsewhere in the justice system.

"These same risks from the use of unregulated psychologist experts apply in all courts and tribunals and on behalf of ACP-UK's Expert Witness Network's Advisory group I have written to ask the Criminal Procedure Rule Committee to use its powers to similarly restrict the use of unregulated experts in our criminal courts."

The amendments do not apply retrospectively. Existing expert appointments are unaffected, while certain technical experts, including those specialising in digital forensics, DNA testing, handwriting analysis and toxicology, are not required to meet the same regulatory requirements under the new rules.