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A mother whose children were removed from her care against their will after an unregulated psychologist said she had “estranged” them from their father has lost a High Court appeal to reopen her case.
The landmark test case came before Sir Andrew Macfarlane, president of the Family Division in England and Wales, who has said he will reinforce the need for courts to follow guidance on appointing experts in his next ruling.
During a remote public hearing, the court heard that under the current rules “anyone can call themselves a psychologist” and there is no definition of “expert”.
The appeal came after a judge in Peterborough refused to order a rehearing after the mother complained that the psychologist who assessed her children was “not a properly qualified specialist”.
Judge Lindsey Davies ruled that the children must move to live with their father after accepting Melanie Gill’s “findings about alienation”.
Gill was appointed in 2020 after being put forward by the Children’s Guardian, Children and Family Court Advisory and Support Service (Cafcass), but her CV was not properly vetted before her notification, the Association of Clinical Psychologists UK (ACP-) said. Lawyers of UK) said at the hearing on Tuesday.
Barbara Mills Casey, who was representing the professional body as an intervener in the case, insisted that in the absence of regulation, the onus was on Gill to satisfy the court that she was qualified to do the work she was instructed to do.
Mills said if her CV had been before the court and current Family Justice Council guidance had been applied, Gill “simply would not have been notified”.
McFarlane said: “The guidance is commendable and to be followed but anyone who does not follow it is not acting illegally.” He added: “The fact that no one has seen his CV does not mean he is not qualified.”
Andrew Bagchi Casey, representing Gill, rejected Gill’s criticisms and said he did not have the burden of proving his eligibility. He said she had made it clear at the outset what the scope of her work would be, adding that the appeal was not “traditional” and had become a “technical discussion”.
In an earlier hearing, he claimed his client had been the victim of a “witch-hunt”.
Bagchi told the hearing that ahead of supplying her CV Gill had emailed Kafkas’ solicitors saying “she is neither a doctor nor a regulator and what her approach would be”. She “outlined her training in child and adult psychological assessment”, Bagchi said.
In a written case outline, Bagchi said Gill was clear that “he is not trained in any form of psychology regulated by the HCPC. [Health and Care Professions Council]”
He added: “Anyone can call themselves a psychologist as long as they don’t use one of the seven protected titles. If ACP-UK wishes to change this they should speak to Parliament about this.”
Representing the mother, Joy Brereton Casey, argued that Gill was a “danger to the public” and that psychologists were regulated to protect the public.
She said “no one checked” Gill’s qualifications at the start of the process. “So what we’re ultimately left with is an expert in inverted commas, someone who calls himself a psychologist who hasn’t actually gone through the relevant procedures. And I hear you say, ‘this is just guidance’. But what is the point, with the greatest respect, of seeking the guidance of the Family Justice Council …?”
McFarlane replied: “I was not undermining the guidance. I was looking for an authoritative statement that said this person is or is not a psychologist, or is or is not qualified to be an expert because it is put that way and guidance falls short of that bright-line character.
He added: “You can rest assured that the judgment of this hearing will reinforce the need for courts to follow the guidance.”
Brereton said that only psychologists who came into contact with the public were regulated, so scholars who did not work with the public could also offer their opinions.
But she added: “Mrs Gill does not fall into that category. She provides an assessment to the court. While she is making these assessments she is technically a danger to the public and I raise this question: Why wouldn’t the family court use this hearing as an opportunity to instruct the justice system that we should not be instructing unregulated psychologists. ?”
But Macfarlane dismissed the appeal, adding: “Part of the judgment will be to look at the bigger picture and give guidance but I am clear that the appeal on the important point should be dismissed.”
Judgment will be given at a later date.
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