This article originally appeared in the January 2018 issue of Family Law. Find out more or request a free 1-week trial of Family Law journal. Please quote: 100482.
Many psychologist expert witnesses, from professional bodies (British Psychological Society) to more informal expert witness networks, have raised concerns about the impact of this practice. The concerns fall into three main areas: the potential harm of conducting such a cross-examination to the litigants in person (LiPs) in question; potential breaches of ethical conduct for the psychologist expert; and the potential impact on the quality of the evidence. This paper hopes to set out these issues and invites discussion as to potential guidance and remedy.
Impact on the LiP and potential for harm
Put plainly, in order to properly answer cross-examination the psychologist expert runs the risk of causing avoidable harm. Moorhead and Sefton (2005) list 11 indicators of vulnerabilities for LiPs (being a victim of violence, depression, alcoholism, being a young lone parent, drug use, history of imprisonment, mental illness, living in temporary accommodation with children, illiteracy, terminal illness, involvement with social services). Trinder et al. (2014) found that around half of the LiPs in their observation sample of 151 cases in private family law proceedings suffered from one or more of these vulnerabilities. They also noted other vulnerabilities in this sample including developmental disorders (ASD ADHD), poor emotional regulation, learning difficulties and extreme nerves/anxiety.
Although some safety net was envisaged in the form of the legal aid exceptional funding scheme, there have been criticisms of this scheme. In the year April 2013-March 2014, 821 applications for exceptional case funding were made in the area of family law, only nine of which were granted. In her review Trinder (2015), citing reported cases, highlighted examples of highly vulnerable litigants including those who have not qualified under the current exceptional funding scheme, for example, one case where a litigant had hearing, speech and intellectual difficulties and was unable to read or write. Miles, Balmer & Smith (2012) examined data from the Civil and Social Justice Survey and found the prevalence of mental health problems to be higher than the government’s take up of exceptional funding suggests. They note that we might therefore anticipate a higher proportion of LiPs seeking exceptional funding on the basis of mental health. The Public Law Project Exceptional Funding Project which provides guidance and information about making EFF applications is currently producing a ‘how to’ guide for family law cases. It is hoped that this might help demystify the process and to encourage more appropriate applications.
It is reasonable to assume a significantly higher rate of such vulnerabilities in LiPs about whom the court has felt a psychological assessment is required. Such LiPs are necessarily vulnerable due to a variety of co-occurring factors including their mental health, personality difficulties, learning difficulties, developmental delay, poor affect regulation etc. These are all common features that psychologist experts are asked to consider. It is to be hoped then that those cases in which LiPs are assessed by a psychologist expert witness should fall within the criteria for ECF when they fall short of legal aid currently available.
When LiPs wish to challenge their psychological assessment it is likely that this is because they disagree with either the nature or the degree of their assessed difficulties. In the latter case it may be necessary to challenge an overly negative perception the assessing psychologist has drawn – the response to which may likely be a restating of ‘deficits’ and/or a rationale for the parent’s limited capacity to effect change within the timescales of the court. In the former scenario a LiP may be challenging the way in which their difficulties have been conceptualised. They may have a preferred understanding of their difficulties which is more ego-protective or less personally stigmatising. It will be crucial to consider, therefore, their capacity to tolerate in verbal cross-examination what may be acute threats to their understanding of their own difficulties and capacity. The reflective capacity to tolerate such threats to their self-concept may well be impaired and in the highly charged, high stakes context is likely to be further impaired.
Giving this verbal evidence necessarily means the psychologist expert confronting an assessed LiP with potentially harmful or re-traumatising, highly charged and emotive content that has emerged in psychological assessment. Psychologist experts are highly skilled in gaining insights into the psychological functioning of the individuals they assess in the broadest sense; eliciting acutely sensitive information that may be defended against and overcoming reporting biases, avoidance etc. The assessment is by its very nature therefore intrusive and exposing. The psychological formulation arising from this assessment gives an explanatory framework which will have a different salience to an individual than a diagnosis for example, as it draws together predispositions, early experiences (including developmental trauma) and mental health symptoms, interpersonal functioning to an understanding of the person as a whole.
This information can be acutely shaming and distressing not just because of the information included (eg abuse experiences) but also because it may include very challenging changes in perception of one’s own difficulties, abilities, motivations and crucially one’s capacity for change. These assessments are therefore extremely useful to the family court but extremely potent. The exercise of reading these assessments may be challenging enough as they may confront an individual with an understanding not previously considered consciously and does so without the support of an ongoing therapeutic relationship with the psychologist. There is clearly the potential for re-traumatising as this information is shared and but this risk may be heightened by the LiP being involved in challenging this directly in court. To question such assessments ‘in the first person’ in the context of typically highly stressful proceedings is a uniquely vulnerable situation in which there is a significant risk of potential harm.