H (Children: Expertise of Witnesses) [2026] EWCA Civ 249

M appealed a care order from 2023. The court had ordered a psychological assessment of M, but not named the psychologist in the order (or seen any CV). LA and CG sought out Mr Flatman. Mr Flatman explained he had a pending complaint with his regulator, which alleged that he had acted outside his expertise in another case. This was not shared with M, who subsequently agreed to Mr Flatman’s instruction. Although Mr Flatman was an educational psychologist, he performed a clinical psychological assessment of M. The court relied on Mr Flatman’s evidence in making care orders.

On appeal, M argued that the decision was unjust, either because there was a serious procedural irregularity in the instruction of Mr Flatman, or because of the “other irregularity” that Mr Flatman was unqualified to perform his instructions.

The appeal was dismissed. The “procedural slackness” was not excusable, but not a serious procedural irregularity. Nor was there any ‘other irregularity’: Mr Flatman was qualifed to carry out his instructions, whether he was an educational or clinical psychologist, and there was no need for “overnice” distinctions. He had not overreached his expertise in his report, which was tested at trial. Even if he was unqualified, the trial was not unfair. In any event, the decision could not be held to be unjust as it was not “marginal”, and the return of the children could not have been contemplated.

Having summarised the position of psychologists as expert witnesses, the court offered further guidance for such appeals at [71-3]: if an expert’s qualifications called into question in one case, that will rarely found the basis of a challenge in a different case. Such a challenge will only succeed if the expert had “substantially overreached” their expertise, and it had “clear consequences for the decision”. It should be in the form of an application to the family court (e.g. to discharge the care order), rather than an appeal.

H (Children: Expertise of Witnesses) [2026] EWCA Civ 249 judgment

25th Mar 2026

Jack Sheard

Call Pupil