The mother of a child involved in care proceedings successfully challenged the conclusions of a psychologist appointed to assess her parenting skills.
She secretly recorded a series of assessment meetings with him, and on the basis of the resulting recordings “raised serious questions concerning the probity and reliability” of his report. Her legal team claimed that he had exaggerated her behaviour during the meetings and misrepresented or fabricated her statements in order to give an unduly negative impression of her and support his belief that her two youngest children should be adopted.
In the High Court, Mr Justice Hayden noted that:
“Although these are public law care proceedings, the discrete issue before me involves an imputation on the reputation of a professional man, which if brought in the context of disciplinary proceedings would require tight procedural compliance.”
He discussed with legal counsel participating in the case whether a civil or criminal standard of proof would be appropriate to the case – i.e. ‘the balance of probabilities’ vs ‘beyond reasonable doubt’. After some discussion it was concluded that the civil standard was the right choice for the case because it had arisen in the midst of care proceedings which use the same criterion.
The Judge explained:
“Given that in the Family Court system we try allegations of serious injury and death to the Civil Standard of Proof there can, to my mind, be no logical reason for trying allegations of this kind by a higher standard. Thus, to adopt Baroness Hale’s phrase, the test is:
“the simple balance of probabilities, neither more nor less.”
The psychologist admitted that he did not take verbatim notes during the sessions and that the use of italicised quotes within his report may have given a misleading impression that he had in fact done so. He added:
“…a number of sentences attributed to [the] Mother [in the report] are inaccurate.”
The Judge said:
“I have read this paragraph a number of times. It seems to me to do [the psychologist] no credit at all. 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 [the psychologist] and attributed to the Mother.”
He concluded that the psychologist had been given the impression of “an expert overreaching his material” and that the report represented “such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions.”
Fairness to the mother and the provision of usable evidence for the family courts required the appointment of a new expert and the creation of a new report, the Judge explained.
The judgement can be read here.