CofA dismisses appeal by mother that psychologist acted “outside limits of his expertise”

In H (Children: Expertise of Witness) [2026] EWCA Civ 249 (12 March 2026), President of the Family Division Sir Andrew McFarlane, Lord Justice Lewison and Lord Justice Peter Jackson concluded that the judge's decision was based on “the evidence as a whole” and, while the psychologist drew matters together in his evidence, the other evidence “so clearly supported the making of care orders” that it was “realistically impossible to envisage any other outcome”.

The court also gave guidance on the appropriate procedure where concerns arise about an expert’s qualifications in children proceedings, noting that it is “almost always likely to be more appropriate to make an application to the Family Court than to bring an appeal”.

The appeal concerned care orders made in relation to three children by Her Honour Judge Gillespie in March 2023.

The appellant, the children's mother, asserted that a jointly instructed expert psychologist, upon whose evidence the judge relied, had been “acting outside the limits of his expertise”, and that the orders therefore could not stand.

The Family Court proceedings began in February 2022. At the outset, the court approved the instruction of Graham Flatman to provide a psychological assessment of the family.

He carried out interviews in May 2022, reported in June 2022, and gave evidence at the final hearing in March 2023.

When accepting instructions, Mr Flatman disclosed that he was facing a tribunal hearing following a complaint to Health and Care Professions Council ('HCPC') that had been initiated by a parent in another family matter.

The Court of Appeal judges noted that “regrettably this disclosure was not brought to the attention of the parents or the court”.

That complaint arose from unrelated proceedings in 2018. It alleged that Mr Flatman had accepted instructions under an order that had referred to him as a clinical psychologist and that he had conducted a clinical psychological assessment and psychometric testing of the parent when he was not registered and/or qualified to do so.

In October 2023, the complaint was upheld by the Conduct and Competence Committee of the HCPC [Health and Care Professions Council], after which Mr Flatman decided that he would not undertake further work as an expert witness.

In May 2024, the mother in the present case complained to the HCPC that Mr Flatman had not been qualified to assess her, and that his opinions had resulted in the care orders being made.

In September 2025, she then applied to the Court of Appeal for permission to appeal, and for an extension of time for appealing.

Outlining relevant guidance and caselaw relating to professional regulation, the Court of Appeal judges said: “Amongst the professional guidance that was available at the time of Mr Flatman's instruction in the present case was the predecessor to the 2023 FLC/BPS Guidance: Guidance from the Family Justice Council and the British Psychological Society: Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations (January 2016). This provided at 3.2 that "All psychologists that are eligible to do so should use their protected titles."

“In Re C ('Parental Alienation': Instruction of Expert) [2023] EWHC 345 (Fam) ('Re C'), Sir Andrew McFarlane P reviewed these matters when hearing an appeal from a refusal to reopen findings of fact in a case of alleged alienating behaviour on the basis of assertions about the expertise of an unregulated psychologist. He described HCPC registration and BPS chartered membership as "very solid ground" [68], and noted the need for clarity over the expertise of those who present as a psychologist, but who are neither registered nor chartered [96]. He continued:

"97. … A lesson plainly to be drawn from the present case is the need for clarity as to an expert's qualification and/or experience. The more diffuse and unstructured a CV, the less effective it is likely to be in transmitting information crisply and clearly. In this regard, lawyers, magistrates and judges are lay readers. They need to be able to see with clarity, and in short form, the underlying basis for an individual's expertise. HCPC registration, or chartered status in the BPS, provide a reliable, one-stop, method of authentication. Where a potential expert is registered with the HCPC as entitled to hold themselves out as an expert under one of the protected titles, this can be taken as sufficient qualification to offer an opinion within that field of practice. Further detail in the CV may assist with the choice of one particular expert over another, but it is the kitemark of HCPC registration which should resolve the question of qualification without more. A psychologist's CV should, therefore, prominently highlight whether they are HCPC registered or not. It is incumbent on an unregistered psychologist to assist the court by providing a short and clear statement of their expertise."

“He accordingly invited the Family Justice Council to consider revising the existing guidance so as to establish a template for readers to see at a glance whether an individual is currently registered with the HCPC (and if so in what category), or as a chartered psychologist, or not [102].”

That invitation led to the publication of the 2023 FJC/BPS Guidance.

The Guidance recommends that to assist the Family Court all statutorily registered practitioner psychologists should use their protected specialist title as it appears on the HCPC register [3.3] and that it is the responsibility of the psychologist expert to be transparent in relation to their qualifications and registration to assist the court in determining their suitability to offer the necessary expert opinion in the case being considered [3.6].

On 20 February 2026, in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38, the President returned to the issue of unregulated experts and alienating behaviour.

Pending the outcome of a consultation being undertaken by the Family Procedure Rule Committee, he gave the following "firm guidance":

"73. In future, permission should not be given under CFA 2014, s 13 for the instruction of an expert 'psychologist' who is neither registered by a relevant statutory body, nor chartered by the BPS. It would be good practice, before a potential expert is appointed, for them to be asked to state whether they hold an HCPC protected title, and if so what that is, before any order is made appointing them as an expert. The 'registered or chartered' requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.”

In the present case, the Court of Appeal judges said: “Insofar as it relates to good practice in relation to the instruction of psychologists in family proceedings, we take this opportunity to endorse the guidance given in Re C and Re Y.”

The court described the family background to explain the role of the expert evidence.

The eldest child, A, was born in 2011. The mother later began a relationship with F2, the father of twins. The family had been known to social services for a long time because of poor home conditions, domestic abuse, and concerns about A’s behaviour and the adults’ responses to it.

Care proceedings were issued in February 2022 and the children were placed in foster care.

At a case management hearing the following month, the court ordered the joint instruction of a psychologist "to undertake a psychological assessment of the first respondent mother and the children". There was no application notice and no expert had been identified.

The next day, counsel for the Children's Guardian made inquiries by email of Mr Flatman's practice administrator, and it was subsequently established that he would be able to accept instructions.

The Court of Appeal judges said: “Counsel conveyed this to the local authority representatives, who were content. It appears that the mother and F1 (who were each legally represented) and F2 (who was not) were not part of this correspondence, but a draft order, prepared by counsel for the local authority, was in due course agreed by the parties and approved by the court. It named "Graham Flatman, psychologist" as the jointly instructed expert.

“The fact that there was no Part 25 application and that the parents were not consulted about the identity of the expert was a departure from good practice.”

Mr Flatman carried out his inquiries over the course of five days and provided his report.

In the report, Mr Flatman described himself as "Graham Flatman – Chartered Psychologist". He set out his qualifications and experience in a two-page appendix that includes these passages:

"I am a Chartered Psychologist having a Bachelor of Science in Psychology, a Master of Science in Educational Psychology, a Post Graduate Certificate of Education, a Diploma in Ericksonian Hypnosis, Psychotherapy and Neurolinguistic Programming (British Hypnosis Research). I am an Associate Fellow of the British Psychological Society.

“I have worked in Local Authorities for seventeen years and in private practice for seventeen years.

“I am registered with Health & Care Professions Council (HCPC).”

His registration with the Health & Care Professions Council HCPC was as a "Practitioner Psychologist (Educational)".

The hearing before the judge lasted for five days. The local authority sought final care orders with care plans for long-term foster care. The mother sought the return of the twins to her care and the placement of A with her maternal grandmother.

Oral evidence was given by Mr Flatman; by an independent social worker (ISW) who carried out two parenting assessments of the mother; by the children's social worker; and by the mother, the grandmother, F2, and the Guardian. At the end of the hearing the judge stated that she would make care orders.

The judge’s welfare assessment included the following passages:

"59. I fully accept the evidence of Dr Flatman that all three children, individually, need better than good enough care as a result of their childhood experiences to date. Childhood experiences caused by direct harm and the risk of harm as a result of the behaviour of their mother, F2 and the collusion of the maternal grandmother…

“60. … It is quite clear to me that the mother, F2 and the grandmother have all prioritised the mother's relationship with F2 over the needs and safety of each of these three children. In so doing, they have exposed each of them to emotional and psychological harm by virtue of living in a household where there was verbal and physical domestic abuse between the adults, and the risk of physical harm as a result of being caught up in those incidents of physical abuse. Each child has received inconsistent and neglectful care from their mother as set out in the threshold findings, and the assessment of Dr Flatman, which I have already stated I accept in full.

“Neither the mother, nor the grandmother acknowledge that harm. They do not recognise the issue of domestic abuse or the impact on the children of allowing F2 to come to the property on multiple occasions against the advice and agreement of social care. […] There is, in my view, an unhealthy and enmeshed relationship between the three adults; the mother, F2 and the grandmother which would cause any one of these three children to be at risk of significant emotional and physical harm should they be placed back into the care of either the mother or the grandmother.”

The single ground of appeal in the present case was that the judge's decision was plainly “wrong and unjust”, as it heavily relied upon the assessment of the mother and the children undertaken by Mr Flatman when he was unqualified to undertake such an assessment.

In oral submissions, counsel for the appellant argued that the court relies on experts to show necessary expertise to a high standard and to be who they say they are. Mr Flatman was registered as an educational psychologist but referred to himself as a chartered psychologist.

Considering the case, the Court of Appeal judges said: “In order to succeed, the appellant must show that the decision under appeal was unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.21(3). Her case is (a) that Mr Flatman was not qualified to give the evidence he gave, and that this amounted to a serious irregularity, and (b) that the irregularity caused the decision to be unjust.

“In summary, we do not accept either contention. We do not consider that there was a serious procedural irregularity in the instruction of Mr Flatman, and it has not been demonstrated that there was any irregularity arising from his work in this case. Even if it were it otherwise, we find that the judge's decision was not unjust because it was securely based on the whole of the evidence, of which Mr Flatman's opinion was but a part.”

In relation to procedural irregularity, the Court of Appeal accepted there were a “number of shortcomings” in the process that led to the expert instruction.

The judges said: “From the outset, there was some laxity in the approach to the Part 25 procedure. Once the parties had agreed that a psychological assessment of the family was necessary, they rightly acted promptly. However, there was no formal application, accompanied by a draft order, and the court did not expressly dispense with that requirement. Instead it approved the instruction of a psychologist in principle, without giving thought to the type of expertise that was required, perhaps because the issues in the case were of a familiar kind. As a result, the court did not see a CV before it made its order. Then, the information disclosed by Mr Flatman about the ongoing HCPC complaint was not circulated and the opportunity for the parents or the court to take an interest in that matter never arose.

“We do not excuse these instances of procedural slackness, but they do not amount to a serious procedural irregularity. The real question is whether they led to 'other' irregularity in the instruction of an unqualified expert.”

The judges continued: “As to that, the starting point is that (in contrast to the witness in Re C and Re Y) Mr Flatman was a psychologist who was regulated as an educational psychologist by the HCPC, and was chartered by the BPS. In addition he was extremely experienced, both as a practitioner and as an expert witness. […] It would clearly have been preferable at any date for him to have presented himself as being an educational psychologist, perhaps in addition to being a chartered psychologist. However, the requirement in the 2023 FJC/BPS Guidance to use the HCPC protected title, was not, so far as we are aware, a requirement that appeared in the 2016 FJC/BPS Guidance.”

The judges were not satisfied there had been a serious procedural or other irregularity arising from the instruction or the evidence of Mr Flatman. They also found no injustice in the case.

Concluding, the Court of Appeal said: “The judge's decision was based on the evidence as a whole and, while Mr Flatman drew matters together in his evidence, the other evidence so clearly supported the making of care orders that it is realistically impossible to envisage any other outcome. In this context, the evidence of the mother and F2 was of particular importance. Given the extent of the undisputed threshold findings and the chaotic state of their relationship, this was not a marginal decision and the return of the children could not safely have been contemplated.”

Finally, giving guidance on the appropriate procedure where concerns arise about an expert’s qualifications in children proceedings, the Court of Appeal judges said: “The fact that an expert's qualifications are called into question in one case may prompt parties in other cases to consider mounting a challenge to their own decision.

“However, as the present appeal shows, such challenges will only succeed where the trial court has accepted evidence from an expert who is later shown to have substantially overreached their expertise with clear consequences for the resulting decision.

“Where a genuine issue of this kind does arise, it is almost always likely to be more appropriate to make an application to the Family Court than to bring an appeal. An appeal court must decide whether or not to allow the appeal, perhaps long after the original order, with limited ability to measure the effect of its decision on the children concerned. By contrast the Family Court has the ability to gather up-to-date information when deciding how to proceed.”

Lottie Winson