Practice and procedure – other
This is an unusual case in which a high court judge was asked to make findings on the probity and reliability of a Consultant Clinical Psychologist (Dr Ben Harper) who had been instructed in public law care proceedings being heard by HHJ Wright in the Family Court in Sheffield. The mother in those proceedings had covertly recorded assessment sessions with Dr Harper and her legal team sought to use the recordings to challenge the psychologist’s court report in respect of the mother.
Hayden J ordered a verbatim transcript of the recordings to be filed at court and directed that a Schedule of Findings should be prepared by the mother’s legal team.
The mother’s legal team prepared a ‘very extensive’ schedule which was summarised by Hayden J as alleging: “false reporting,” “inaccurate quoting,” being designed to present the mother in a “negative light,” “fabrication of conversations” and “deliberate misrepresentation.” In cross examination, leading counsel for the mother accused Dr Harper of “lying.”
The judge first turned his mind to the standard of proof, given that the discrete issue before him involved an imputation on the reputation of a professional man which would require tight procedural compliance if brought in disciplinary proceedings. Hayden J held (following agreement from the parties) that the Civil Standard of proof applied: “the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the facts” (Baroness Hale in Re B (Care Proceedings): Standard of Proof  UKHL 35).
Hayden J did not address what he described as the “minute allegations” in the schedule prepared by the mother’s legal team, describing them as “of varying cogency and forensic weight.” Instead he analysed those allegations which it was necessary for him to determine in order properly to resolve the issues in the care proceedings. He then considered a further “important question,” namely whether the findings made out against Dr Harper were sufficiently serious so as to render his evidence in these proceedings unreliable.
Hayden J held that several of the allegations made against Dr Harper were well founded and that they were sufficiently serious so as to render his evidence in the proceedings unreliable.
The first allegation that Hayden J considered was in respect of distorted reporting. In response to the mother’s Schedule, Dr Harper made the following concession: “12. There are a number of occasions where I have referred to Mother as having said something by way of italicised text within double quotes. It is quite clear to me that anyone reading my report would have interpreted these as suggesting they were verbatim quotes. I did not, however, take verbatim notes and a number of sentences attributed to Mother are inaccurate.”
Hayden J described that paragraph in damning terms as seeming designed to minimise the extent of the “very significant failing it [represented].” It seems that in cross examination Dr Harper accepted that the phrases in quotation marks are “a collection of recollections and impressions compressed into phrases created by Dr Harper and attributed to the Mother.” Hayden J was unsurprisingly highly critical of this practice and concluded: “[t]he report is heavy with apparent reference to direct speech when, in truth, almost none of it is. Thus the material supporting the ultimate conclusion appears much stronger than it actually is. Given the forensic experience of Dr Harper and this extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.” Dr Harper had adopted a similar approach when reporting to the court on the children involved in proceedings which was a cause of concern to the children’s Guardian.
The second allegation considered was that (as framed by counsel for the mother) Dr Harper had “lied” about the content of a discussion which took place on 6 April 2016. This conversation (unlike others) had not been subject to covert recording. The judge accepted Dr Harper’s account of that meeting in part (he accepted that he intended to look at the inconsistencies in the mother’s various narrative accounts) but did not accept that Dr Harper had dealt with between 13 and 20 significant points of assessment in what both parties agreed was about a 15 minute meeting.
The judge concluded that “the overall impression is of an expert who is overreaching his material, in the sense that whilst much of it is rooted in genuine reliable secure evidence, it is represented in such a way that it is designed to give its maximum forensic impact. That involves a manipulation of material which is wholly unacceptable and, at very least, falls far below the standard that any Court is entitled to expect of any expert witness.” He held it to be manifestly unfair to the mother who was battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Dr Harper’s professional failure had compromised the fairness of the process for both the mother and the children (see Re B-S  EWCA (Civ) 1146 and Re A
 EWFC 11).
The judge noted that the local authority had submitted that Dr Harper’s central thesis was probably correct and that the report should therefore be allowed to stand with the judge hearing the case attributing weight as he saw fit. Hayden J acknowledged that the central thesis may well be right but disagreed that the report should be allowed to stand, considering that there were such fundamental failures of methodology that no judge could fairly rely on the conclusion.
The judge agreed with counsel for Dr Harper that the issue in relation to the mother’s evidence was ‘reliability’ not ‘credibility’ and noted that he had found himself unable to place a great deal of weight on her evidence even where his findings were essentially in her favour.
In concluding the judge cited the observations of Dame Elizabeth Butler-Sloss P in Re U: Re B (serious injury; standard of proof)  2 FLR 263 at 23iv: “The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour-propre is at stake, or the expert who has developed a scientific prejudice.” Hayden J did not consider that Dr Harper had developed a scientific prejudice nor that he was jealous to guard his amour-propre but he did consider that “his disregard for the conventional principles of professional method and analysis [displayed] a zealotry which he should recognise as a danger to him as a professional and, more importantly, to those who I believe he is otherwise genuinely motivated to help and whom he plainly has much to offer.”
This case plainly turns on its own facts in that distorted reporting is not a usual feature of expert reports in the COP or elsewhere. Nevertheless, it contains a useful reminder of the depth and quality of scrutiny of expert reports in the High Court: a depth and quality which should be the starting point for consideration of all expert reports in the COP. In a forum where people’s liberty is at stake or where decisions are being taken about a person’s capacity or best interests, their medical treatment or their financial welfare we should all take heed of the caution of Dame Elizabeth Butler-Sloss P and be on guard against the over-dogmatic expert.