A professional body ordered to pay costs of £20,000 by the president of the family division after intervening in an appeal regarding the qualifications of a court-appointed expert has said the ruling was “unfair” and could have a “chilling effect”.
The Association of Clinical Psychologists UK (ACP-UK) said it had acted in good faith on a matter of “public protection”, after being criticised for conducting itself in a “wholly exceptional manner” during an appeal before the most senior family judge in England and Wales.
In a ruling handed down in August and published last week, Sir Andrew McFarlane said the ACP-UK had failed, on the first day of the appeal, to substantiate its claim that Melanie Gill was unqualified to hold herself out as a “psychologist”.
In the absence of a “bright line answer” to the court’s request for clarity, the ACP-UK should have stepped back, he wrote. “Instead … during the second day of the hearing, the intervenor mounted a direct and detailed critique of the expert,” said McFarlane.
The appeal known as Re C concerned a mother who was seeking to have her case reopened on the basis that Gill – who had advised a judge in a lower court that the mother had alienated her children from their father – was neither regulated “nor properly qualified”.
Her appeal was granted on the basis that the court needed to look at the wider practice of instructing unregulated experts as a matter of public interest and the ACP-UK was given permission to intervene.
However, after the appeal was dismissed by McFarlane, the mother was ordered to pay costs in the region of £26,000 to the respondent father and £20,000 to Gill.
The mother’s barrister, Chris Barnes, submitted that costs would impact “adversely upon the mother to a disproportionate extent when compared to the father, given their respective financial positions”.
However, Charles Hale KC, on behalf of the father, highlighted that the mother had pursued an appeal despite “clear warnings from the father’s lawyers that an application for costs should be made against her should she fail”.
The ACP-UK – a not-for-profit representative professional body – was directed to pay a “modest” sum of £20,000 divided equally between the father and Gill.
Jaime Craig, a consultant clinical psychologist who led the ACP-UK’s intervention, said the organisation had acted in good faith and had been “unfairly punished”.
He said: “The reason for the appeal was: was it appropriate to appoint this person? We gave information about what qualifications are needed to undertake the kind of psychological assessment these cases require but that was felt to be unhelpful.”
Craig said it remained “confusing” as to why the president felt he couldn’t scrutinise Gill’s qualifications.
“Far from protecting the public, the sad result is a chilling effect, which has silenced parents who had previously hoped to appeal decisions after the evidence of unregulated experts,” he said. “It also gives the appearance of that person being exonerated when in fact no investigation took place into their qualifications.”
During the appeal, Gill’s barrister, Andrew Bagchi KC, insisted that his client was properly qualified and told the court she was the victim of a “witch-hunt”.
Craig, who has sat on the Family Justice Council for seven years and was tasked with drafting guidance on the court’s use of psychologist experts, told the Observer: “This was in no way a vendetta against one person. I’ve been involved in efforts to make sure we get good quality experts in front of family court judges since 2016.”
He added: “The positive side of this is the president did adopt some of our recommendations in his judgment, including that experts should no longer be given the job of deciding if a child has been ‘alienated’.”
The ACP-UK has been striving to have the title “psychologist” protected – meaning that only those registered with a regulatory body would be permitted to use it.
Craig, who recently came to the end of his term with the Family Justice Council, said: “The government has decided not to regulate psychologists, but the courts can demand a better standard.”
Prof Mike Wang, chair of the ACP-UK, said the president’s decision was “harsh” but added: “It may turn out that £20,000 is a small price to pay for the progress with justice in the family courts that we have made.”
He said: “What I’m getting at is that, despite judge McFarlane’s negative comments about the ACP-UK’s intervention during that particular hearing, his judgment [on the appeal decision] borrowed two major contributions from our argument.”
McFarlane said the ACP-UK’s view that “parental alienation” cannot be diagnosed by an expert, but rather should be a fact to be found by the court, “deserved to be widely understood”.
“The second point adopted was that if a judge chooses to use an unregulated expert they have to justify their reasons for it,” Wang said.
“Those contributions contained in the judgment are a win and the fact we have had a fairly recent example where a barrister managed to use that judgment to stop an expert witness opinion paves the way for a much better approach to parental alienation in the family courts.”
Wang added: “In retrospect, taking everything into consideration, I have no regrets and we would do it again.”
In his judgment on costs, McFarlane accepted there was a risk of the order having a chilling effect on other potential intervenors but said the ACP-UK had conducted itself in a “wholly exceptional manner” unlikely to be replicated by other bodies.
He said: “Where an intervenor is found to have acted beyond the remit of the permitted intervention, or acted in contradiction to the court’s direction … it is likely to be at risk of an adverse costs order.”