Why are unregulated psychologists acting as expert witnesses in family courts?

Evidence provided by expert psychologists in family court informs life-changing decisions made by judges about the welfare of children. Yet serious concerns have been raised around the quality of experts sometimes called on in such courts. Last year, Lib Dem MP Sarah Olney told parliament that the use of such experts is “placing thousands of children and vulnerable women at risk”.

One controversial area in which the Bureau of Investigative Journalism’s (TBIJ) Family Court Files has highlighted the problematic role of experts is “parental alienation”. It’s described as a child’s unjustified hostility or rejection of one parent for no reason other than that they have been manipulated to do so, whether consciously or not, by the other parent.

The theory is promoted by various psychologists, some of whom are unregulated and whose assessments can lead a court to find that parental alienation has taken place.

TBIJ has reported on cases involving fathers who have claimed that allegations of domestic abuse and rape are attempts to alienate them from their children. In April, the president of the Family Division in England and Wales said there had been a “complete upsurge” in the number of cases in which parental alienation had been alleged.

So what is an expert witness, what role do they play in the family court process and should those who aren’t regulated be banned? TBIJ asked Jaime Craig, a consultant clinical psychologist with over 20 years’ experience as an expert witness in the family courts, to explain.

Why do family courts need experts?

When the family courts are involved in people’s lives, expert evidence can be necessary to inform decisions in complex situations. There are often many factors to consider, including mental health, substance misuse, trauma and abuse, intellectual disabilities and neurodivergence.

There are different treatments for different types of psychological problems. But when a particular issue can’t be neatly categorised, it may be that an expert assessment is needed to examine the various evidence-based options for resolving the issue according to best practice.

What are the rules on appointing experts?

Courts must be persuaded that expert evidence is necessary to resolve issues fairly. Once appointed, experts must comply with specific duties in order to provide accurate and fair evidence.

In the family courts, a single expert is usually jointly appointed by all parties. The assessments and opinions need to be based on what the courts call a “reliable body of knowledge” – the up-to-date understanding and evidence-based approaches in their field.

Does the court allow unregulated experts?

Guidance produced by the British Psychological Society (BPS) and the Family Justice Council is clear that only psychologists registered with the Health and Care Professionals Council (HCPC) have the necessary skills and training to assess or diagnose.

While there are occasions when a court wants the opinion of an academic psychologist as an expert witness – for example, in a narrow field of research such as how memory works – they should not complete assessments or diagnose.

But the same loophole means that unregulated experts can be appointed by the courts to make assessments and draw conclusions.

What does it mean to be a regulated psychologist?

Similar to the way that doctors in the UK cannot practise unless they are on the General Medical Council register, specific types of psychologist are regulated by their title, such as educational psychologist, clinical psychologist or forensic psychologist. Such psychologists must be registered with the HCPC.

There are nine such “protected titles” and it is against the law if you use one without being registered with the HCPC.

Can I call myself a psychologist?

Yes, anyone can call themselves a “psychologist”. There is nothing to stop an unqualified person working privately as a psychologist so long as they don’t use one of the protected titles.

This also means that someone struck off by the HCPC could continue to practise by using a non-protected title such as “child psychologist”.

There is no way to check what these people are reliably qualified to do, or if they have previously acted in a harmful or unsafe way.

How much influence do court appointed psychologists have?

Life-changing decisions, including children being removed from their parents, are made based on the opinions of expert witnesses.

Unregistered psychologists are assessing adults and children, who are then being compelled to complete potentially unnecessary therapy by the court. Sometimes this therapy is delivered by these same unregistered psychologists or their associates – despite efforts to discourage this conflict of interest.

Why are ‘parental alienation’ cases controversial?

“Parental alienation” – repeatedly described as a “pseudo-concept” in a 2023 United Nations report – is not part of mainstream psychology practice or recognised in diagnostic manuals. It is promoted by a number of experts, some of whom are unregulated.

Their evidence has been accepted and has led to children being removed from their parents, often mothers alleging domestic abuse. There is no-one to query the experts’ advice or actions with unless the expert is regulated.

What happened in the landmark appeal case ‘Re C’?

“Re C” was an appeal involving an unregulated expert psychologist called Melanie Gill. During the appeal, Sir Andrew McFarlane, the president of the family courts, determined it was not possible to say that Gill should not have been appointed – because anyone can call themselves a psychologist and the current guidance is not compulsory.

While McFarlane said HCPC registration should be seen as the “kitemark’’ – a recognition of quality and reliability – he would not go further, noting this was for the government to address through legislation.

Why is regulation important?

Regulating experts promotes public safety in two ways. Firstly, it means that whether someone has the necessary qualifications or training needed to call themselves a specific type of psychologist can be checked. Secondly, it means anyone can look up an expert on a register.

To stay registered with the HCPC, experts must follow a code of professional and ethical conduct, keep up with developments in their specialism, and only work within their area of expertise. This is called their “fitness to practise”.

If an expert acts in a harmful way or their practice is out of date, complaints can be investigated and they can be “struck off” from the register.

What about other organisations for psychologists?

A psychologist might choose to be a member of a professional organisation such as the British Psychological Society (BPS). Membership is open to various people with post-graduate psychology qualifications or experience, but also researchers and those who teach psychology in schools.

You might also choose to be a member of an organisation such as the Academy of Expert Witnesses.

While all these organisations have criteria for membership and codes of conduct, they do not regulate members nor investigate fitness to practise.

What is needed to ban unregulated experts?

To ban unregulated experts would take a change in the law or court procedure rules.

Several MPs supported the Association of Clinical Psychologists’ call for legislation to ensure that only HCPC-registered psychologists complete court assessments.

In April, the then-Conservative government’s Justice Committee passed this back to the Family Procedure Rule Committee to address. It committed to complete this work within six months. A consultation on any new rules is anticipated but meanwhile, these loopholes remain.

Are there any downsides to banning unregulated experts?

One argument is that this would potentially cause delays by reducing the pool of psychologist experts available to assist the court. However, this ignores the lifelong impact that decisions based on low-quality evidence can have.

This story was amended on 10 October 2024 to clarify that the description of parental alienation as a “pseudo-concept” was made in a 2023 United Nations report.