Re MFS (appeal: transfer of primary care)
| Jurisdiction | England & Wales |
| Judge | WILLIAMS J |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] EWHC 768 (Fam) |
| Court | Family Division |
Expert evidence – Parental alienation – Boundary between psychology and psychiatry –Whether expert strayed into determining core fact or merely relied on facts set out in material provided – Whether reference to all material facts required – Whether expert’s conclusions consistent with weight of evidence.
The child was born in September 2010. Litigation was ongoing in respect of the child from late 2012. In March 2017, the mother suspended contact with the father, which had been taking place on alternate weekends and half the holidays. The mother wrote to the judge, alleging that the school had demonstrated concerns for the child’s well-being and that the father’s partner and children had abused the child. The mother was asserting that the child had OCD and Tourette’s. In May 2017, the father issued applications seeking a change of residence.
A s 7 report identified a concern that what the child was saying about contact with the father was a result of parental influence and recommended both a s 37 report and appointment of a guardian. The judge directed a psychological assessment of the parents. The clinical psychologist was provided with the entirety of the court bundle, met with both parents and observed contact between the child and the father. The expert described the case as one in which the mother had alienated the father, describing this as emotional abuse. He observed that there was no evidence of OCD or Tourette’s disorder in the child.
In an addendum report, requested in relation to attachment, implementation of a change of living arrangements and any evidence of a change in the mother’s ability to promote a relationship between the child and the father, the expert concluded that the child/father relationship was sufficiently positive to enable the child to make a direct transition to the father, although he noted that there would be distress. He mentioned that the mother had identified the need to make changes but noted that evidence of change was largely missing from her statement. A further addendum report seeking clarification of matters and whether they were within the expert’s area of expertise led to instruction of a child psychiatrist, who concluded that the child was probably suffering from an emotional disorder of childhood linked to anxiety and stress, rather than OCD or Tourette’s. The child psychiatrist suggested that a change of residence would alleviate stress, if the court concluded that the mother had encouraged the child to form an unnecessary and unrealistically negative view of the father.
The s 37 report concluded that the child had been exposed to ‘pure alienation’ by the mother, relying on evidence independent of the main expert’s reports and making only limited references to those reports. The guardian’s report identified concerns about the mother’s ability to promote contact, based on her own discussions with the mother and her own observations about the child’s behaviour, again, making only limited reference to the reports by the main expert.
The judge made various findings, including a finding that the child did not have Tourette’s and OCD. The judge made adverse comments about the mother’s credibility, finding that she would say anything to keep the child with her. The judge considered that the child had been subject to parental alienation by the mother and that the child’s allegations against the father and his partner were unfounded. Concluding that the mother had not shown any willingness to take on board the unanimous recommendations of the professionals and experts, the judge provided for the child, then eight years old, to live with the father. The move was implemented that night. The order also provided for the child to spend time with the mother, initially on a supervised basis.
After changing solicitors the mother sought to appeal out of time, describing the judge’s reliance on the expert evidence as a procedural irregularity, and asserting that the order for a change of primary carer was a disproportionate one. As a result of further delays within the appeal process, by the appeal hearing date the child had been living in the father’s home, with his half-brother and step-family, for almost six months.
Held – (1) In cases where a transfer of primary care was the outcome and an appeal was proposed, the ideal would be for applications for permission to appeal and a stay to be made prior to the implementation of the transfer; even if this meant an urgent application to the appeal court. This had been a paradigm case for urgent action and the failure to comply with the time limits for appealing was serious. Given that the child had moved on the day that the decision being appealed was taken, the need for expedition had been particularly acute. Whilst the court appreciated that the mother had wished to instruct a different silk, this did not mean either that an appeal could not have been lodged at an earlier stage, or that she had to wait for the availability of her first choice silk. The consequences of the late appeal had had a direct impact on the child’s welfare, in that it was now effectively not possible to recreate the previous arrangements without causing further upset to the child, who had begun to settle into his new existence. If the appeal itself had had merit, the court might have been persuaded to grant an extension of time, given the seriousness of the issue, notwithstanding the inevitable unsettling effect of an ongoing appeal and more importantly the real issue over whether a successful appeal would ultimately have any effect in practice, given the new status quo. In the event, an extension of time would be refused. If there was any lesson to be learned from this case it was the critical importance of making timeous applications either for a stay, or for an extension of time (see [51], [52], below).
(2) In light of the mother’s acceptance that all her criticisms of the report had been aired before the judge, her criticism of the judge’s reliance on that report was more properly characterised as an assertion that judge had placed undue reliance on the expert report than as a procedural irregularity. In any event, ultimately the question was whether the mother could demonstrate that the expert’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge and/or, if it was so unreliable, that it had infected all the other reports to an extent which rendered their conclusions unreliable and thus made any decision by the judge based on them wrong (see [58], [61], below).
(3) The court did not accept that any of the expert’s opinions in the first report as to the child’s presentation had been outwith his expertise (the mother had not been able to identify any document from any professional body or otherwise to support this submission). Inevitably, in respect of a number of conditions the boundary between psychology and psychiatry might not be entirely clear and there were many cases where either a psychologist or a psychiatrist might validly opine on a matter. Clearly there were other cases where the issue would fall squarely and exclusively within the expertise of a psychiatrist or a psychologist. OCD had been identified at the experts’ meetings as principally a mental health issue and thus within the expertise of a psychiatrist, while Tourette’s syndrome had been identified as a neurodevelopmental issue which was within the competence of a psychologist. The expert had specifically been asked to comment on the ability of each of the parents to support and promote the child’s relationship with the other parent and, if they could not do so, what the impact was upon the child. In order to answer this question the expert had been well within his remit in expressing the views set out in his report (see [63], below).
(4) Whilst it was, of course, not for an expert to determine a core fact (ie whether the father had hit the child) this did not prevent an expert basing his assessment on the penumbra of facts which accompanied such cases. Thus, the expert had been perfectly entitled to take into account all the material which shed light upon the mother’s attitude to the child’s relationship with the father. The expert must take into account all material facts in giving an opinion but did not have to refer to all material facts in doing so, nor even to refer to every particular piece of information or evidence relied upon. It would simply be impossible for an expert so to do within the confines of a user-friendly and page limit compliant report. Of course, if the expert’s analysis and conclusions were plainly inconsistent with the weight of the evidence, that might call into question the reliability of their conclusion, but in this case the expert’s conclusions had been consistent with the weight of all of the other evidence. In so far as it might be said that it would have been better for the expert to have acknowledged that there was some evidence which indicated the mother supporting contact or to have noted that the father’s negativity about the mother did not impact upon the child, that was a counsel of perfection and had no bearing on the reliability, objectivity, professionalism of the report or the evidence. The expert’s conclusion that the child’s negativity was a product of the mother’s negativity and that she had not demonstrated a change was neither unprincipled or unsustainable (see [64], [65], [72], [75], below).
(5) The conclusions that the judge had reached as to the expert’s expertise and the reliability of his opinion had been conclusions that were not only plainly open to him, but were also, probably, the only proper conclusions he could have reached. Further, the expert’s report had been only one component in a much larger construction and had not had the significance of a ‘cornerstone’, either in the evidence of the other professionals or in the judgment itself. The expert’s report was one piece...
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