Rules committee consults on requirement for experts in family law children cases to be regulated
The Family Procedure Rule Committee is consulting on proposed changes to the Family Procedure Rules and associated Practice Directions, to ensure that experts instructed in family law children proceedings have the “relevant qualifications and oversight” to provide an expert opinion.
The committee observed that in recent years, parliamentarians, campaigners and the media had raised concerns regarding unregulated experts providing evidence in family court cases, and the standard of such evidence.
“These experts, often using the title psychologist may be instructed to give evidence or offer diagnoses which they are not qualified to undertake,” it added.
In the case of Re C, the President of the Family Division, Sir Andrew McFarlane, delivered a judgment on the appeal of the instruction of an unregulated psychologist who gave evidence on the disputed concept of “parental alienation”.
Within his judgment, McFarlane highlighted the “need for due rigour” in the process of expert instruction and that regulation of the title psychologist was a “matter for parliament”.
Under the proposed changes, Family Procedure Rule (FPR) 25.5A sets out requirements for an expert witness be a “regulated expert”.
The definition of “regulated expert” is then included in FPR 25.2 to be an expert who:
- is regulated by a UK statutory body
- appears on a register accredited by the Professional Standards Authority, or;
- is regulated by an approved regulator under the Legal Services Act 2007.
At FPR 25.5A(3), the Rule sets out the exception for when no such expert is available. A further specific exemption is included at FPR 25.5A(2) for international social workers.
Consideration was also given to the instruction of experts from foreign jurisdictions. An exception at 25.5A(4)(a) allows for the court to instruct an expert who does not fit the definition of “regulated expert”, where the issue to which the expert evidence relates to “may only be resolved with the expertise of an expert who is not regulated”.
This exception would therefore allow for the instruction of an expert from a foreign country in these circumstances.
The FPR Committee said: “The aims of these changes are to ensure that only experts with the relevant qualifications, experience and oversight are instructed in the family court. For an expert to be regulated by a UK statutory body, accredited by the Professional Standards Authority or regulated by an approved regulator under the Legal Services Act 2007, they must comply with a set standard on education and conduct.
“This change will improve the consistency of the standard of expert evidence presented to the court. This change will also provide parties to proceedings a clear route to raise the concerns over the conduct of an expert.”
Under the proposed changes, FPR 25.5A would apply to all experts, including individually and jointly instructed experts, instructed in family law children proceedings under Section 13(1), (3) or (5) of the Children and Families Act 2014.
The consultation is open until 6 June 2025.
Lottie Winson