Update and response from Lord Ponsonby on Unregulated Experts in the Family Courts: The tail wagging the dog?
Thank you to all who signed our joint SHERA Research Group open letter with Right to Equality, Women’s Aid, The UK Association of Clinical Psychologists and many others to Lord Ponsonby of Shulbrede, Parliamentary Under-Secretary of State for Justice and MP Alex Davies-Jones regarding unregulated experts in the family court. We have now received a largely positive response, which you can read below.
I will also share my thoughts about this response.
The response to our letter
How do you intend to approach the development of a Rule regarding prohibiting unregulated experts in the family courts?
The Committee agreed to take on this workstream at its May 2024 meeting [*] and has referred the matter to its Domestic Abuse Working Group (the ‘Working Group’) for further detailed consideration. Since the referral, my officials have been working with the Working Group to ensure that any Rule change is robust, whilst still allowing the courts to continue to function effectively. Officials regularly return to the Committee to update it on the progress of this workstream and seek their feedback. The minutes to Committee meetings are publicly available and can be found here: About us - gov.uk/government/organ…
What stakeholders will be involved in this process?
At the May 2024 meeting, the Committee made clear it is its intention to consult on any proposed changes. Following any consultation closing, officials and the Committee will review the draft rule change, taking into account the views expressed in the consultation
When will you complete this work as the 6 months outlined have passed?
I understand that you are eager to see progress on this important issue, and I can assure you that it is a priority for me. However, as you will understand, this is a complicated area and it is important that we carry out the detailed work necessary to appropriately balance the need to protect parties by ensuring experts are appropriately qualified with clear complaint routes, with the need to ensure parties can still instruct necessary experts without unintended restrictions.
What urgent interim measures can the FPRC implement to prohibit any further unregulated experts acting in the courts whilst this work is undertaken?
On 11 December 2024, the Family Justice Council published its finalised guidance on “responding to a child’s unexplained reluctance, resistance, or refusal to spend time with a parent and allegations of alienating behaviour”. The guidance states that in cases where allegations of “alienation” are made, “Only HCPC Registered psychologists have the relevant clinical experience and training to conduct psychological assessments of people and make clinical diagnoses and recommendations for treatment or interventions”. The guidance can be found here.
This guidance has been endorsed by the President of the Family Division who has encouraged “everyone working within the Family Justice System to read it carefully”.
*(The Family Procedure Rule Committee (FPRC) agreed to take this work on after the president of the family division had agreed to this when giving evidence on 23rd April 2024 to the government’s Justice Committee):
What does all of this mean and where do we go from here?
Here are my thoughts on the responses:
The Domestic Abuse Working Group working on this guidance is excellent news and should reassure victim-survivors. For those who do not know, this group has some extremely strong professionals and advocates as members. These members not only fully understand the common issues that victim-survivors face in family court with regulated and unregulated experts, but they also have a strong history of leading change. You can view the members here, but some stand-out members include Prof Rosemary Hunter, who led the Ministry of Justice Harm Panel Report and Jenny Beck KC, who has long been an advocate for victims of Domestic Abuse and of course is a practicing legal professional in this area on a day-to-day basis. Jenny also led on the new guidance ‘Family Justice Council Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’. NB - While there is still much work to do and I am not fully in agreement with this new guidance, the guidance is good in many ways as it prioritises the needs of victim-survivor children and adults. Ultimately though, we know that ‘alienating behaviours’ is not at all removed from ‘parental alienation’, which is a pseudoscience and needs to be prohibited from being used/referred to in our courts as we have argued and as guided by the report of the United Nations Special Rapporteur, Reem Alsalem.
So, in summary, the fact this group is working on the issue of unregulated experts is positive, but more work concerning ‘alienating behaviours’ will no doubt be a necessity in this workstream.
They intend to hold a consultation, which others (I assume including the general public) can submit to. This is another good response as it means victim-survivors, organisations who work with these groups and professionals will all ‘get a say’, their evidence and voices will hopefully be heard. I will monitor the website and inform you when any updates about this come out.
This response is good and also not so good. Firstly, yes, there is existing guidance but psychologists are not the only professionals who are instructed and guidance is just guidance, it’s not law. I also accept and understand this is a complicated area, but timescales are promised and then not adhered to e.g. a 6 month completion for this work was promised in April 2024, which quickly passed with no completion as indicated. Meanwhile, many families continue to suffer harm. Okay, let’s say we acknowledge there was a general election held and a new government appointed in the summer of last year (2024) - things slip when there are major handovers like this, inevitably, but protection of vulnerable adults and children should be a top priority on anyone’s to-do list. Also, the FPRC should not have been impacted by a change in government:
Moving on, the next sentence concerns me deeply…'it is important that we carry out the detailed work necessary to appropriately balance the need to protect parties by ensuring experts are appropriately qualified with clear complaint routes, with the need to ensure parties can still instruct necessary experts without unintended restrictions’. For anyone who understands this area, it’s clear what is being said here: the shortage of expert witnesses in family court is a long-running theme, so much so that there have been numerous recruitment drives over the last decade. I don’t wish to digress into a lengthy discussion about whether this is functionally, legally or morally ‘right’ or not in this blog post. It should also be noted though that the new ‘alienating behaviours’ guidance, other guidance and case law makes clear that ideally, only HCPC registered experts should be instructed (because only they have the necessary skills and training to assess or diagnose) and in the ‘alienating behaviours’ guidance it makes clear they should only be instructed after a finding of fact by the court on the reported abuse. The reason I am concerned with this response is that it implies that appropriate qualifications, regulation and complaint routes are restrictions and that some unregulated experts are ‘necessary’. It seems to be an acknowledgement that the court needs and indeed relies currently on experts who have either questionable qualifications and/or are not regulated and/or do not have clear complaints systems linked to them. The reason they have said this is because it’s true (the relying on part not the needing to part). This is exactly why we wrote our letter. This is dangerous and wrong. Utilising unregulated ‘expert’ testimony compromises the integrity of legal proceedings by opening the door to biases, unreliability and, in some cases, distortion of factual reality. The court must be held to the highest possible standards—why should experts not be held to the same, especially when serving within a courtroom? Expert opinion is only sought when absolutely necessary, and this testimony should be held to rigorous standards to ensure accuracy, expertise, safety and professionalism. It is not something we would ever expect or tolerate with any other group of professionals working directly with vulnerable people e.g. we would not allow a professional who states they are medically qualified to perform surgery if we knew they were not qualified to do so and not regulated by anybody. Should anything go wrong, there would be nowhere to turn to seek justice/recompense for these wrongdoings. There are numerous news reports relating to notorious unregulated ‘experts’ (psychologists and others) who have functioned in the family court system for quite some time. In my own research in this area and indeed beyond, I have detailed the harm that can arise for example in primary care, when ‘skill mix’ (utilisation of other health professionals and assigning patients to be treated by them instead of GPs to reduce waiting times) can at times lead not just to dissatisfaction, inequities and lack of choice, but also raises safety concerns if serious conditions are ‘missed’ or not treated appropriately. There is currently an ongoing similar debate about the regulation of the newer role of ‘physician associates’, which you can read about here.
To me, the response to our question here suggests a tail-wagging-the-dog approach. We can not and should not allow any level of need in the court system - to address delays or otherwise - to result in unqualified and unregulated ‘experts’ informing treatment approaches for vulnerable families (many of which ‘treatments’ in ‘alienation’ cases are also not scientifically sound and are harmful).
Let’s say tomorrow, the government pledged to immediately prohibit all unregulated experts from being instructed in the family courts. What would happen?
Would the sky fall? No.
Would thousands of families suddenly feel safe in the courts? That’s highly unlikely.
However, what is likely, is that it would certainly bring some level of reassurance that these families were at the very least in the hands of professionals who are deemed to be qualified, regulated and can be complained about should anything go wrong.
Is regulation perfect? Absolutely not.
Does it need fixing? Absolutely yes.
Do families experience problems with the complaints system? Absolutely yes.
All of this needs addressing - but this is about prohibiting unregulated experts to protect the public and to give them recourse to seek justice and recompense should they need to.
It’s easy, it’s simple and it may go some way to restore some element of hope, faith and trust for these families and the broader public. Restoring some level of trust at this time is essential, as the public’s perception of and trust in the courts has been severely damaged. This is because currently, convicted rapist and abusive fathers maintain parental responsibility and the right to seek parental involvement/contact with their children and numerous reports repeatedly cite failures in the family courts to protect women and children who are victims of abuse. Below is a non-exhaustive list of reports and research;
The Report of the Independent Inquiry into Child Sexual Abuse (IICSA) cited family court failings
The Harm Report cited the same
The horrific murder of Claire Throssell’s sons Jack and Paul by their father (via the family courts),
The torture and murder of Sara Sharif (placed with her murderers via the family courts),
Reports from Women’s Aid that multiple other children have been murdered by their fathers (via the family courts)
The recent proclamation by the abuser of Kiena Dawes, Ryan Wellings, that upon his release from prison he will be seeking custody of their daughters (He avoided a manslaughter charge for Kiena’s suicide after years of abusing her but is none-the-less a convicted abuser and unsafe parent) and
Our own research which indicates that children are being forced into direct contact (including overnight stays) with convicted child sex offenders and abusers.
It is essential that the government move swiftly to restore some level of trust for the general public. I speak to and work on a regular basis with many victim-survivors and court professionals who quite frankly are exhausted and deeply concerned about the ongoing lack of safety, care and attention afforded to children and their parents. Without trust in institutions and governmental leaders (especially those concerning justice), societies have been known to descend into riots, chaos and even collapse as Mascherini (2024) notes.
Trust is the glue that holds us together; it is the force of the social contract and the bedrock of democracy. Trust fosters cooperation, strengthens social cohesion, facilitates policy implementation, and encourages public engagement and participation.
Without trust, societies fall victim to social fragmentation, which cripples cooperation and can empower populism, thereby undermining the stability and well-functioning of our societies...
Notably, guidance makes clear that other academic experts cannot be instructed (only academic psychologists). Psychology is an extremely narrow field and apart from this, only a small section is trained for example in understanding social determinants of health and abuse such as gender, sex, environment, economic stability and more. Indeed, many social workers and psychologists do not even receive training in child sexual abuse, domestic abuse, trauma and coercive control: all key focal points in many cases within the court system. In fact, many psychologists themselves state that focussing only on psychology is deeply problematic as Uher (2020) notes:
‘…psychology cannot be a unitary science. Adequate explorations of so many different kinds of phenomena and their interrelations with the most elusive of all—immediate experience—inherently require a plurality of epistemologies, paradigms, theories, methodologies and methods that complement those developed for the natural sciences, which are needed as well. Their systematic integration within just one discipline, made necessary by these phenomena’s joint emergence in the single individual as the basic unit of analysis, makes psychology in fact the hardest science of all.’
Other academic experts who have multiple regulators, are often highly qualified and indeed live and breathe contemporary research and evidence in these fields and so arguably, are more well-placed to least inform the courts. It is the reason academics such as Prof Rosemary Hunter (a legal academic) chairs the Domestic Abuse Working Group.
All of this brings me to my concluding comments. I do believe this is a ‘good’ response, as I opened with saying. It is positive and I will eagerly await the next steps as will many others, not least the victim-survivors of domestic abuse and child sexual abuse (adults and children) engaged in protracted proceedings and exposed to court and perpetrator-induced trauma (CPIT).
BUT…guidance is just guidance and so we must continue to push for legislation prohibiting unregulated and unqualified experts from being instructed in the courts.
You can write to your MP asking them to support this cause and send them this post, which has links to all of the background information. You can find further information on the background here. Current MPs who are supportive of this include Taiwo Owatemi, Jess Phillips and Sarah Olney.
No matter how good, well-meaning or effective guidance transpires to be (time will tell) until we truly centre the safety of the general public, until the prohibition of unregulated experts is enshrined in law and until we fix regulation and the complaints system, families sadly, in my humble opinion, will remain unsafe and unprotected in the family courts.