Beyond conflict, towards parity and consensus

Providing a fascinating personal insight into the judicial view of hearing psychological evidence in court, and what makes a happy judge, was the Honourable Mr Justice Williams QC – a justice of the High Court Family Division since 2017 and Chair of the Family Justice Council's Committee on Experts. The Committee on Experts was brought together after a Family Division survey, led by Williams, uncovered areas where there were particular shortages in expert witnesses and explored the barriers to people becoming expert witnesses. These findings and a series of recommendations were published in 2020, which the committee has been working to implement.

Williams said the survey revealed that child and adolescent psychiatrists and child psychologists represented the largest shortage of expert witnesses in the family justice system. The Committee on Experts has been working on ways to create and sustain change and has established regional groups to develop programmes for training and mentoring expert witnesses.

Williams said the survey had also revealed a 'raft of issues' with the way experts had been treated by the courts – for example in receiving too many papers, unclear letters of instruction and facing criticism from judges. By February next year, he said, all family court judges will have received Judicial College Continuation Training, which includes training on dealing with experts.

In many cases psychological evidence may be helpful to courts in helping to settle a case before a judge even needs to decide on it themselves, Williams said. Although lawyers look at evidence from a different perspective, psychological evidence may also be useful for lawyers in giving clients advice – to support a client's case or help clients accept certain issues.

There has been some debate over psychologists working as expert witnesses despite not being registered with the Health and Care Professions Council (HCPC) and therefore not having a protected title. Williams highlighted that it is not a requirement that evidence must be heard from HCPC-registered psychologists, but that there may be a focus on the lack of protected title by the courts when giving evidence, particularly around expertise and codes of practice.

Williams also touched on the thorny issue of parental alienation – something which has reached such a level of contention that it is now on the agenda of the full Family Justice Council. The council has released interim guidance which emphasised a need for expert evidence to be in a recognised area of science with a reliable body of knowledge or experience. A memorandum from the President of the Family Division also referred to expert evidence, the criteria for it, and made a reference to pseudoscience. Williams said: 'Parental alienation, even within my experience as a lawyer for the last 32 years, it's sort of like Halle's Comet… it comes around every now and again, it grows in its fieriness and then abates and disappears. It's probably somewhere in the Bayeux tapestry as well.'

Finally Williams shared some tips for making him a happy judge, saying it is important to keep expert witness reports concise and include a good executive summary. He also suggested that expert witnesses should be clear in their explanations and formulations and include clear conclusions and practical advice.

Cultural literacy

Counselling psychologist, therapist and Senior Lecturer Dr Agatha Benyera-Mararike (Canterbury Christchurch University) has worked as an expert witness in the family court and currently provides medico-legal reports for family, criminal and civil matters in accident injury claims, immigration, and Court of Appeal cases relating to detainees and victims of torture. She shared some insights and tips from working with people from varied cultures and religions in the course of her expert witness work. She said that although we have acknowledged the importance of cultural literacy for some time, it's unclear whether psychologists always practice what they preach.

Benyera-Mararike explained the importance of being aware of our own cultural biases and having sensitivity to cultural differences. She said that there are layers of complexity working with groups such as immigrants – a recent immigrant's priority may be to secure accommodation, for example, and apparent neglect of children could be entirely unintentional.

It is also important, Benyera-Mararike said, to clarify one's own role as a psychologist expert witness – some may be nervous to share information with someone they see as an outsider in a position of authority. Similarly, it is also helpful to fully explain the purpose of psychological assessments which may help people to open up and share relevant information. 'Looking at things through a cultural lens is very important, a lack of knowledge doesn't only apply to the clients we are dealing with or populations we are dealing with, a lack of knowledge is double edged – it could be on our part as expert witnesses. It is really important to do our homework and find out more, be professionally curious when you are doing your assessment. There are cultures, subcultures, people adapt differently, there are family values, traditions, religion, those are all complex layers that are informing how they view the world and look after their children.'

Beyond syndromes

Professor David Glasgow, an Honorary Professor at the Sexual Offences, Crime and Misconduct Research Unit at Nottingham Trent University, said he had been interested in clinical constructs and syndromes in expert evidence for many years, looking to 'get beyond conflict and towards more parity and consensus. My case is that these constructs are unnecessary forensic processes, and they generate problems… they make focusing on what's important difficult. The constructs… tend to obscure the important evidence and are interposed between the actual [expert] evidence… and the forensic process so that the weaknesses and difficulties of the process of diagnosis are disguised by the final diagnosis itself.'

Glasgow pointed to 10 warning signs of these constructs, including those which are ill-defined, or whose definitions shift. They often come with emotionally-charged debates, they do not feature in diagnostic manuals, and there tends to be a lack of empirical evidence, or a contentious evidence base. 'Antecedent phenomena' tend to get combined into a clinical construct or syndrome, and from that flows forensic implications, Glasgow said. He gave the example of the aforementioned Parental Alienation Syndrome, with those antecedent phenomena in children including a campaign of denigration, rationalisations for the denigration and reflexive support of the alienating parent. There's also the 'independent-thinker' phenomenon, which Glasgow explained refers to a child who has reached their own decision on the distant relationship with one parent. 'For some reason the presumption – against much of the evidence in the literature – is that children are passive accepters of a position, rather than active agents.'

Glasgow went on to explain that many of the apparent 'symptoms' of Parental Alienation Syndrome are, in fact, normal childhood behaviours – for example preferring one parent over another, or being exposed to criticism of one parent by the other. 'The presumption is that fundamentally parental relationships are similar and symmetric; the expectation is the child will have a balanced and similar relationship with each. … all the evidence is that that's not the case.' Although Glasgow said that, of course, sometimes parents intentionally or unintentionally compromise a child's relationship with their other parent, it was 'massively oversimplified' in Parental Alienation Syndrome.

Although there is still an ongoing, bitter, debate over Parental Alienation Syndrome, Glasgow said he felt CAFCASS (The Children and Family Court Advisory and Support Service), who simply refer to 'alienating behaviours', had a good approach in bypassing the clinical construct of Parental Alienation Syndrome. Glasgow also gave other examples, including Munchausen Syndrome by Proxy – which is a construct no longer used in UK courts – and said these syndromes and clinical constructs were honest attempts to address real problems.

'Sometimes they assist focusing on the debate and the empirical evidence… there seems to be a natural process by which that occurs. However, on the downside you get unhelpful debate and conflict, and I really think these constructs should not be presented in court unless you can make a very strong case for them.'

Be prepared

Dr Pavlo Kanellakis later shared some personal insights from his time working with the HCPC working on the Fitness to Practice group panel. He provided data on those psychologists who have been through Fitness to Practice hearings between August 2017 and April 2022. He said 14 practitioner psychologists were struck off the HCPC register in this period – three breached professional boundaries, two were struck off due to dishonesty and fraud, four acted outside their competence or lacked expertise, and five had displayed inappropriate behaviour of a sexual nature.

Kanellakis pointed out that some of these cases could be relevant to expert witness psychologists – specifically acting outside of competence or lacking expertise, and breaching professional boundaries. He said that when hearing about Fitness to Practice hearings, many people may feel threatened, but that we should approach the possibility of such events in a positive manner through preparation.

This preparation, he said, may involve taking the financial implications of such events into account and building financial reserves to deal with possible complaints, keeping good records, and finding several supervisors, especially those who may have experience of HCPC complaints, who could later provide a character reference and advice. Kanellakis also shared some advice for anyone who is subject to a complaint at some point in the future – speak to your supervisors, write an account of what happened, carry out some focused research on the points that are raised in a complaint, speak to a union if you are a member, and find a good lawyer who specialises in these cases.

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