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When a court is considering what decision to make about a family, it will often consult an expert. When asked to make an order about financial arrangements on divorce, for example, it might hear evidence from someone who knows how to value a business, or a property. A CAFCASS officer might give evidence to a court about the wishes and feelings of children if there are questions about how they will be looked after their parents separate. And when the court is asked that most fundamental of questions, whether a parent is capable of continuing to look after their children, it is customary for the court to rely heavily on expert evidence, for example regarding the parenting skills displayed and the children’s development. In most of these cases, expert evidence is a pivotal factor.

A case has recently come to light where the court had found that three little boys had suffered ‘significant harm’, meaning that the local authority was permitted to step in to protect them. Care proceedings started. Their father was in a Detention Centre awaiting deportation, and their mother had significant mental health issues including psychosis and Post Traumatic Stress Disorder. She had previously been sectioned. A consultant clinical psychologist was asked to draw up a report for the court on the mother’s capacity to parent the boys.

The expert did not consider that the mother could provide an acceptable standard of parenting because of her severe mental health difficulties. He recommended that the two younger boys be adopted, and the elder one remain looked after by the local authority.

At a hearing in the High Court, the mother challenged the psychologist’s report. This in itself is not unusual; what was unusual in this case was that the mother had recorded their interviews. She could prove that she had never said the many quotes the psychologist had attributed to her in his report and had used to convince the court that her children should be removed from her forever. Based on the recordings, she further stated that he had fabricated entire conversations, lied about completing psychometric tests, and did not raise matters which he said in the report that she had failed to address, to her detriment.

The court found that there were indeed significant problems with the report. The psychologist admittedd: “There are a number of occasions where I have referred to Mrs [Mother] as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”

The court’s reaction to this statement was this:

“It is crafted in a way that seems designed to minimise the extent of the very significant failing it represents. When pursued in cross examination it was revealed that extensive parts of the report which purport, by the conventional grammatical use of quotation marks, to be direct quotations from the Mother, are in fact nothing of the kind. They are a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such ‘quotations’ in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper’s experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of ‘a number of sentences’ is a complete distortion of the reality of the document. The report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus, the material supporting the ultimate conclusion appears much stronger than it actually is. “

The next paragraph of the judgment makes clear that the psychologist had taken the same approach to “quoting” one of the children after a meeting with him.

The court said:

“The overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give it its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness. …   Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. … This is a case of unique gravity and importance.   Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper’s professional failure here compromised the fairness of the process for both Mother and children.”

This is a truly shocking case. One has to wonder whether, if the mother had not recorded the discussions, she would ever have been believed when she challenged the report of such an eminent specialist appointed by the court. It is essential for society to be able to have confidence in the processes and conclusions of the experts to whim it delegates such responsibility for the futures of children. This decision rightly puts Dr Ben Harper’s reputation under scrutiny, and goes to the heart of the duties of any expert reporting to the court in a family law matter. However, readers should be aware that they should exercise extreme caution when considering recording dealings with experts or any other people involved in children proceedings, as it can lead them into terrible trouble (see here for an example we have written about previously).

We aren’t experts in child care law, where the local authority is involved as a result of serious harm to children. We are experts on the private side of family law, including where and with whom children should live after separation, with whom they should spend time and when, and other arrangements for their care and upbringing within the family. If you have any questions about the role of experts, or any other divorce or separation issue, please give us a call on 02123 443333 and make an appointment to see Sue, Adam, Tricia, Gail or Simon.

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