Re: B (A Child)

Therapeutic and forensic expert roles in family proceedings must remain distinct. A clinician who has treated a child, conducted therapeutic interviews concerning alleged abuse and formed a view about the allegations may be disqualified from providing forensic evidence. Instructions for a forensic report should be impartial and, wherever possible, joint; a unilateral report obtained to support one party is improper. Therapeutic methods, including leading questions, may be clinically appropriate but can prevent the treating clinician from giving objective forensic evidence. Where the defects are profound, a further report on fresh joint instructions may not cure them.

The father sought to restore unsupervised contact with his daughter after allegations of sexual abuse had been made following two contact visits. Criminal charges against him were later dropped. The mother’s solicitors instructed the child’s treating consultant psychiatrist to prepare a report supporting the mother’s position. The report described therapeutic interviews, including the use of anatomically correct dolls and leading questions, and concluded that the child had been sexually abused.

On the father’s application for directions, His Honour Judge Ticehurst refused permission to instruct an independent forensic psychiatrist and directed the treating psychiatrist to prepare a further report on joint instructions after seeing the father and all the papers. The central issue was whether the treating psychiatrist could properly contribute forensic evidence and whether the defects in the existing report could be remedied in that way.

Lord Justice Thorpe gave the leading judgment, and Mr Justice Jonathan Parker agreed. The court granted permission to appeal, allowed the appeal and set aside the county court order.

1. Separate functions. An expert who treats a child must not have that therapeutic role muddled with the role of an expert reporting for the purposes of litigation. The mother’s solicitors should have placed the outcome of the investigative interviews before the judge, rather than relying on a partial report from the treating clinician.
2. Improper forensic instruction. Forensic instructions should be impartial and, wherever possible, joint and agreed with the other side. It was an error of judgment to ask the treating psychiatrist for a unilateral report intended to support the mother. The psychiatrist’s therapeutic interviewing methods were not criticised as clinical treatment. However, after undertaking that work and forming a view on the allegations, she was disqualified from making any forensic contribution.
3. Fresh instructions. The judge’s conclusion that the deficiencies could be remedied by a fresh report on joint instructions was unrealistic. Flaws of that depth were incapable of rectification. The order therefore had to be set aside, with the court to determine after further submissions who should be instructed and the proper scope of the instructions.
4. Delay and costs. The court noted that delay may drain the strength of a contact application and create difficulty in obtaining reliable expert evidence. There was no order for costs, subject to legal-aid assessment, a nil assessment of the appellant’s contribution to pre-certificate costs, and an order nisi under section 18 of the Legal Aid Act against the Legal Aid Board.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The county court order was set aside: [2000] EWCA Civ 511.
• Bristol County Court: His Honour Judge Ticehurst refused the father’s application to instruct an independent forensic expert and directed the treating psychiatrist to prepare a further report on joint instructions.