A and B (children: expert’s reports), Re

Expert evidence in children proceedings is admissible only where it is necessary to assist the court to resolve the proceedings justly. Necessity requires more than showing that an assessment might be reasonable, desirable or generally helpful. The court must identify the disputed issues and questions requiring expert assistance and conduct the balancing exercise required by section 13(7) of the Children and Families Act 2014.

The failure of other interventions, or the hope that a general psychological assessment may reveal a route forward, does not by itself establish necessity. A court should not commission an assessment to investigate alleged parental alienation where the relevant behaviour remains a factual issue for the court and no proper evidential basis for the assessment has been identified.

The mother appealed against an order made by HHJ McPhee in the Family Court at Watford on 13 December 2023. The order directed a psychologist to undertake a family assessment, including psychological assessments of both parents and possible assessment of the children.

The proceedings concerned arrangements for two children to spend time with their father. Earlier findings concerned the father’s controlling, manipulative and aggressive behaviour. Previous programmes and interventions had not restored contact. The judge had previously concluded that a general psychological assessment was unnecessary, but later ordered one after those interventions failed.

The central issue was whether the judge had properly established that the proposed expert evidence was necessary under section 13 of the Children and Families Act 2014.

1. The appeal was allowed. The provisions of the order appointing Dr Hardiman were set aside, and consequential directions were amended to remove references to him. The order for indirect interim contact remained in force.
2. Under section 13(6) of the Children and Families Act 2014, expert evidence may be admitted only where it is necessary to assist the court to resolve the proceedings justly. As explained in the President’s Memorandum and reflected in Re H-L (A Child) [2013] EWCA Civ 655, necessity imposes a higher threshold than evidence that is merely reasonable, desirable or of assistance.
3. The judge was required to identify the issues to which the evidence would relate and the questions the expert would be required to answer, while considering the matters specified in section 13(7), particularly the likely welfare impact, the issues and questions involved, and the other evidence available. The judge’s description of the proposed evidence as relating to the parents’ psychological profiles and their approaches to one another and the children did not identify a necessary issue or question.
4. The exhaustion of other programmes and interventions did not make a general psychological assessment necessary. The court must not direct an assessment in the hope that it may disclose an explanation or route forward. That approach failed to engage with the statutory balancing exercise, especially where the children had already been exposed to repeated professional involvement.
5. The court also relied on the guidance in Re C (Parental Alienation: Instruction of an expert) [2023] EWHC 345 (Fam). Alleged alienating behaviour is a factual issue for the court. A psychologist should not be instructed to diagnose a supposed parental-alienation syndrome or to search for alienating behaviour without an evidential foundation. No fresh findings supported such an assessment here.
6. Although appellate courts should be slow to interfere with case-management decisions, as stated in Re AV (A Child) (Expert Report) [2020] EWCA Civ 346, the judge had not identified any proper basis on which the assessment could be considered necessary. The procedural issues concerning the late production of the expert’s CV and the letter of instruction therefore did not need to be determined.

• High Court (Family Division): appeal allowed against the Family Court order made by HHJ McPhee at Watford on 13 December 2023. The expert-appointment provisions were set aside.