H (Children: Expertise of Witness)

An alleged defect in an expert’s qualifications does not automatically invalidate a care decision. The appellate question is whether there was a serious procedural or other irregularity and whether it made the decision unjust. Psychology specialisms do not create rigid boundaries: an experienced educational psychologist may be suitable for a whole-family assessment where the task falls within overlapping expertise. The court must still identify the field, qualifications, issues and questions, and ensure that the expert stays within competence. A challenge will normally be made in the Family Court, including by an application under sections 39 or 34 of the Children Act 1989, rather than by appeal.

The mother appealed care orders made for her three children by Her Honour Judge Gillespie in the Family Court at Lincoln in March 2023. The court had jointly instructed Graham Flatman, who described himself as a chartered psychologist and was HCPC-registered as an educational psychologist. After the orders, an HCPC complaint in unrelated proceedings was upheld and he was suspended. The mother argued that he had exceeded his expertise in assessing her and administering a psychometric test, causing a serious procedural irregularity and injustice. The local authority relied on his qualifications, the judge’s ability to assess his evidence, and the other evidence. The central issue was whether the care orders should be set aside on appeal.

Appeal dismissed. Under CPR 52.21(3), the mother had to establish a serious procedural or other irregularity and show that the decision was unjust because of it. Neither requirement was met.

1. The appointment process involved shortcomings. There was no formal Part 25 application or draft order, the court had not seen the expert’s CV before approving the instruction, and information about the HCPC complaint was not circulated. Those matters represented procedural slackness, but did not amount to a serious procedural irregularity.
2. Expertise must be assessed practically and by reference to the substance of the task. Clinical and educational psychology involve overlapping skills. A rigid division between them is inappropriate. An experienced educational psychologist may be suitable to provide a whole-family assessment, including opinions about parents, where the necessary expertise is sufficiently broad. A clinical psychologist may plainly be required where a parent’s problematic mental disorder makes that specialism necessary. The court endorsed the good-practice guidance in Re C [2023] EWHC 345 (Fam) and Re Y [2026] EWFC 38.
3. Mr Flatman was HCPC-registered as an educational psychologist, chartered by the BPS, and highly experienced. He made no clinical diagnosis of the mother. The validity of the MCMI-III test results was not established, and the question whether he was qualified to administer the test had not been explored at trial. Assessing parental insight did not require psychological expertise. The judge was entitled to assess the report and oral evidence on their merits and to rely on them.
4. Objectively, the decision was not unjust. It rested on the evidence as a whole, including the evidence of the mother and F2, the undisputed threshold findings, and the evidence of the other professionals. The outcome was not marginal. Even if Mr Flatman had been unqualified, the appeal would not inevitably have succeeded; the question would remain whether the proceedings were unfair, applying Serafin v Malkiewicz [2020] UKSC 23. A unilateral expert report obtained after the order was not relied upon and could not have cured an unjust decision.
5. A challenge to an expert’s competence in children proceedings will normally be more appropriately made in the Family Court. Possible routes include an application to discharge a care order under section 39 of the Children Act 1989, an application for contact under section 34, and, where appropriate, an application under Part 18 to reopen findings, following Re J [2023] EWCA Civ 465. An arguable case is required before such an application is likely to proceed to a full hearing.

1. Court of Appeal (Civil Division): On 12 March 2026, dismissed the mother’s appeal and upheld the care orders.
2. Family Court at Lincoln: Her Honour Judge Gillespie made care orders for the three children in March 2023, with reserved reasons handed down on 17 April 2023.