The Family Procedure Rule Committee (“FPRC”) has been considering the standards required of expert witnesses instructed in family law children proceedings. Stewarts has submitted a comprehensive response, drawing on the firm’s experience in high-value and complex private children law disputes.

In this article, knowledge development lawyer Carla Ditz and trainee solicitor Leyla Aras consider the scope of the consultation and the proposed changes.

Background

In recent years, there has been growing concern regarding the use of unregulated experts to provide evidence in child proceedings. This is particularly so given the risk that evidence given to the court may be outside the individual’s expertise. In the absence of registration with a regulated professional body, litigants are left without a formal avenue to raise any concerns regarding the conduct of that expert.

The focus of recent cases and in the media has been the appointment of unregulated psychologists who have been instructed to provide expert evidence in proceedings. This has involved conducting assessments or offering diagnoses that they are not qualified to make. Currently, experts can use the title “psychologist” without being registered or regulated by a professional body. Being in a regulated profession means there is a legal requirement to hold particular qualifications or experience to undertake certain professional activities or use a “protected” job title. The title “psychologist” itself is not protected. The Health and Care Professions Council lists nine protected titles for a practitioner psychologist: practitioner psychologist, clinical psychologist, counselling psychologist, educational psychologist, sport and exercise psychologist, registered psychologist, forensic psychologist, health psychologist and occupational psychologist.

The standard of evidence from unregulated experts was brought into focus by the case of Re C [2023] EWHC 345 (Fam), during which the President of the Family Division, Sir Andrew McFarlane, emphasised the need for “rigour” when identifying and approving an expert for instruction. The president also highlighted that work should be done to assist both parties and the court at the initial stage of electing an expert. Where an expert is unregistered, it would be sensible practice for the court to indicate in a short judgment why it is nevertheless appropriate to instruct them. The president said “it is not… for this court to prohibit the instruction of any unregulated psychologist”, but it is “a matter for the psychological profession, and, ultimately, Parliament, whether a tighter regime should be imposed”.

Proposed changes

In light of Sir Andrew McFarlane’s comments in Re C and following wider concerns expressed by parliamentarians, campaigners and the media regarding unregulated experts, the FPRC has proposed certain changes to the Family Procedure Rules (“FPR”) 2010 and the associated practice directions to ensure that experts instructed in children proceedings have the requisite qualifications and oversight to provide an expert opinion.

The requirement for experts in children proceedings to be “regulated” is significant. The definition of “regulated expert” is to be included in FPR 2010 rule 25.2 as an expert who is regulated by a UK statutory body, appears on a register accredited by the Professional Standards Authority or is regulated by an approved regulator under the Legal Services Act 2007.

Stewarts welcomes the proposed changes, which aim to limit the instruction of unregulated experts. In our view, this is a positive step towards ensuring a reliable and consistently high standard of evidence.

Our response acknowledges the importance of maintaining high standards for court-appointed experts who are duly qualified and experienced, particularly those whose evidence can influence welfare decisions for a child. However, we call for vigilant monitoring of the proposed exceptions, one of which may permit the appointment of an unregulated expert where the instruction of a regulated expert would cause significant delay.

The consultation closed on 6 June 2025, and the response from the FPRC is eagerly awaited.

You can find further information regarding our expertise, experience and team on our Divorce and Family page.

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