Re B (Sexual Abuse: Expert's Report)

In family proceedings, a clinician who has treated a child must not ordinarily be used as a forensic expert on the same allegations. Therapeutic and forensic functions are distinct, and the treating clinician may be disqualified from making any forensic contribution where the medical reference and therapeutic work prevent objective assessment. A one-sided request for a report to support a party’s case is improper. Forensic instructions should be impartial and, wherever possible, joint and agreed. Defects of this magnitude cannot be cured by giving the treating clinician the papers and issuing fresh joint instructions. The court must instead consider what independent expertise is appropriate.

Proceedings concerned contact between a father and his daughter after the mother alleged that the father had sexually abused the child during unsupervised contact. Criminal charges against the father were later dropped. A child psychiatrist, who had been treating the child, prepared a report at the mother’s solicitors’ request. The report relied on therapeutic work and expressed the opinion that the child had been sexually abused.

On the father’s application, the Bristol County Court refused permission to instruct an independent forensic expert. It 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 that proposed fresh start could properly cure the defects in the original report.

Thorpe LJ gave the reasons, and Jonathan Parker J agreed.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The order of the judge below was set aside. The Court of Appeal reserved the making of a substitute order until it had heard further submissions.
2. Separate functions. The role of an expert who treats a child must not be confused with that of an expert who reports for forensic purposes. The psychiatrist’s medical reference was therapeutic. Her subsequent work included questioning the child about alleged sexual activity and led to an opinion that the father had sexually abused her. Because of the nature of that reference and work, she should have recognised that she was disqualified from making any forensic contribution.
3. Proper instructions. It was an error of judgment for the mother’s solicitors to seek a unilateral report intended to support their client’s case. Instructions for a forensic report should be impartial and, wherever possible, joint and agreed with the opposing party. The court also regarded it as inappropriate that the outcome of properly conducted investigative interviews had not been placed before the judge when the allegations were relied on in support of the contact application.
4. No rectification. The first-instance judge’s proposed remedy—fresh joint instructions to the treating psychiatrist after disclosure of the papers—was unrealistic. Defects of such depth were incapable of rectification, so the order had to be set aside.
5. Further case management. Delay had already weakened the progress of the contact application and created difficulty in obtaining reliable expert evidence. The Court of Appeal therefore required further submissions on the appropriate expert and the proper scope of any instructions.

• Bristol County Court: On 10 January 2000, His Honour Judge Ticehurst refused permission to instruct an independent forensic expert and directed the treating psychiatrist to prepare a further report on joint instructions. Permission to appeal was refused.
• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The order below was set aside, with the substitute order deferred pending further submissions. The judgment is reported at [2000] EWCA Civ 516.