England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/08/2016

Mr Justice Hayden :

1. During the course of public law care proceedings, which were being heard by HHJ Wright in the Family Court in Sheffield, counsel for the Mother raised serious questions concerning the probity and reliability of a Consultant Clinical Psychologist, Dr Ben Harper who had been instructed in the proceedings and who had provided a report for the Court. The criticisms made against him arose in consequence of the Mother covertly recording her assessment sessions. It was contended that Dr Harper's report significantly misquoted and adversely misrepresented the Mother. HHJ Wright transferred the case to the High Court on this single issue, on the grounds of its 'complexity'.
2. These Care Proceedings commenced in January of this year and have been timetabled to a 5 day final hearing to commence on the 5^th September 2016. There were earlier proceedings, concluding nearly 2 years ago in the Sheffield County Court.
3. On the 28^th November 2014 HHJ Coe QC approved an agreed threshold criteria document, thus finding the subject children had suffered 'significant harm' as contemplated by s.31(2) of the Children Act 1989. The children are three boys: with respective dates of birth 28.11.07, 19.08.11 and 19.04.13. The essence of the findings were that the father was in a Detention Centre awaiting deportation to Nigeria and thus unable to advance himself as a carer for his children and the Mother's long standing and significant mental health issues. The Court found, in particular, that the Mother had experienced severe depressive episodes including psychosis and fulfilled the criteria as suffering Post Traumatic Stress Disorder. It is noted that on the 26^th September 2013 the Mother was detained, initially pursuant to S.2 and thereafter to S.3 Mental Health Act 1983.
4. On the 21^st June I endorsed a previous direction that a verbatim transcript of the recordings should be obtained and that they should be filed within these proceedings. I also directed that a Schedule of Findings should be prepared by the Mother's legal team and made provision for Dr Harper to intervene within the proceedings should he wish to do so. Given the pressing need for a resolution of these children's circumstances I certified the matter as suitable for vacation business and listed the matter before me on the 15^th August in the Royal Courts of Justice. It is unnecessary for me to burden this judgment with the intervening case management history. Suffice it to say, Dr Harper accepted the invitation and has been represented at this hearing by leading counsel, Ms Fenella Morris QC.
5. Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:

1. Dr Harper has either misread or exaggerated the mother's presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.

2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these 'quotations' by the mother to form his conclusions and recommendations.

3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.

4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.

5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.

6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.

7. Dr Harper inaccurately quotes other experts' reports in a manner that presents a negative impression of the mother.

8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.

9. It is asserted that neither Dr Harper's handwritten notes nor his comments regarding the 6^th April 2016 can be relied upon for the reasons asserted in the schedule.

6. As these findings were particularised it became clear that the allegations extended to: 'false reporting'; 'inaccurate quoting' designed to present the Mother in a 'negative light'; 'fabrication of conversations' and deliberate 'misrepresentation'. In cross examination Ms Lee accused Dr Harper of 'lying'.
7. 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. For this reason I asked the experienced counsel before me to consider whether the Civil Standard of Proof applied for the purpose of this inquiry. Initially there was not agreement but some thought having been given to the matter, all ultimately agreed that the Civil Standard of 'balance of probabilities' applied. In Re B (Care Proceedings): Standard of Proof [2008] UKHL 35; [2008] 2 FLR 141 Lord Hoffman considered these issues, specifically in the context of Civil Proceedings involving allegations of fraud or deception (the speech of Baroness Hale, more frequently quoted in these Courts, focused inevitably on the Children Act 1989 framework). Having undertaken an exegesis of the applicable case law Lord Hoffman concluded as follows:

"12. The degree of confusion which is possible on this issue is exemplified by the fact that despite the painstaking clarity with which Lord Nicholls explained that having regard to inherent probabilities did not mean that "where a serious allegation is in issue the standard of proof required is higher", Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, 812 cited this very passage as authority for the existence of a "heightened civil standard". This appears to have resulted in submissions that the Family Division should also apply a "heightened civil standard", equivalent to the criminal standard ("in serious cases such as the present, the difference between the two standards is, in truth, largely illusory", per Lord Bingham CJ in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, 354), in local authority applications for care orders. Dame Elizabeth Butler-Sloss P restored clarity and certainty in re U (A Child) (Department for Education and Skills intervening) [2005] Fam 134,143-144: "

"We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as 'largely illusory'. In our judgment this approach is mistaken. The standard of proof to be applied in Children Act 1989 cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill CJ or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann's case [2003] 1 AC 787 to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment therefore…the principles set out by Lord Nicholls should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts."

13. My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.

14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that —

"the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator."

8. 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. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts."

9. Whilst I am full of admiration for the industry which underpins the extensive schedule prepared by the Mother's team and the equal energy expended in the detailed response document, I am bound to say that the two do not provide a user friendly framework to negotiate the contested issues. Partly for this reason but primarily because I consider it to be a distraction, I do not propose to address many of the minute allegations which, as I have indicated during the course of exchanges with counsel, are of varying cogency and forensic weight. What I propose to do is to analyse, in what I consider to be a proportionate manner, those allegations which it is necessary for me to determine in order properly to resolve the issues in the care proceedings. Thereafter I must consider a further important question: are the findings made out against Dr Harper sufficiently serious so as to render his evidence in these proceedings unreliable?
10. Dr Harper's report is dated 11^th April 2016, it is 70 pages in length. At its conclusion it contains the following, now standard, declarations:

i) 'I have exercised reasonable care and skill in order to be accurate and complete in preparing this report';

ii) 'I understand that this report will form the evidence to be given under oath or affirmation';

iii) 'I am likely to be the subject of public adverse criticism by the Judge if the Court concluded that I have not taken reasonable care in trying to meet the standards set out above';

iv) 'I confirm that I have acted in accordance with the Codes of Practice for Experts'.

11. Finally, the 'STATEMENT OF TRUTH' appears at the very end of the report. Familiar though it is, it requires to be repeated here:

"I confirm that the contents of this report are true to the best of my knowledge and that I make this report knowing that if it is tendered in evidence, I would be liable to prosecution if I have wilfully stated anything that I would know to be false or that I do not believe to be true"

12. In a statement dated the 10^th August 2016 Dr Harper took the opportunity to set out his Curriculum Vitae in some detail. I do not propose to repeat all of it but I highlight the following:

"2. I am a Consultant Clinical Psychologist working with local authority and National Health Service Mental Health Teams. I qualified with a BSc in Psychology from the Queens University, Belfast in 2003. In 2004 I qualified with an MSc in Applied Psychology from the University of Ulster and achieved Masters in Research Psychology (MRES) from Queens University Belfast in 2006.

In 2009 I completed a Doctorate in Clinical Psychology at Liverpool University. I hold a Postgraduate Certificate in Family Therapy from the Leeds University (2011) and a Postgraduate Diploma in Cognitive Analytical Therapy (2016)."

13. Later, Dr Harper set out his Court experience:

"9. I have completed approximately 110 reports for the Family Court and approximately 60 expert reports for young people and parents in criminal proceedings. My expert witness work commenced in 2003 when I worked in Looked After Children services in Northern Ireland. My reports have dealt with the assessment of risk, behavioural difficulties, child abuse, family contact and attachment.

10. I have given oral evidence in the Family Court on approximately 30 occasions."

14. Responding directly to the schedule Dr Harper makes this concession:

"12. There are a number of occasions where I have referred to Mrs 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."

15. I have read this paragraph a number of times. It seems to me to do Dr Harper 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 Dr Harper and attributed to the Mother. They convey to the reader of the report only one impression, namely that they represent the authentic voice of Mother herself. The quotations are also italicised and drafted in full sentences in the idiom of the Mother rather than in the formal argot of psychology which characterises the remainder of the report. Within the context of the evaluative exercise that the Court is involved in, during care proceedings, the accurately reported phrases and observations of the parties themselves are inevitably afforded much greater forensic weight than e.g. opinion evidence, hearsay or summary by a third party. It is very likely that a Judge reading such 'quotations' in the report of an experienced expert witness will at least start with the strong presumption that they have been accurately and fairly recorded. It is, to my mind inconceivable that a witness of Dr Harper's experience, which I have taken care to set out in some detail above, would not have appreciated this. Indeed, it strikes me that it would be obvious to any lay party or member of the public. Moreover, I find the concession in the statement, where mention is made of 'a number of sentences' is a complete distortion of the reality of the document. The 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 his extremely impressive academic background I cannot accept that he would have failed to appreciate the profound consequences of such distorted reporting.
16. In the course of the public law proceedings the Court authorised interviews between one of the children and Dr Harper. I very much regret to say that the purported quotations in that report i.e. presented as if they were the words of the child himself are also nothing of the kind. Dr Harper used the same approach there. They are in fact a jumble of phrases extracted from jottings and / or perceived recollection. Dr Harper voluntarily submitted his notes to scrutiny, they can properly be characterised as minimal. They prompted this submission on behalf of the children's Guardian by Mr Cohen QC and Mr Edwards:

"It is hard to know why Dr Harper has reported as he has. His methodology and minimal notes of the 3 meetings with the mother would have made it very difficult to accurately record what she had said. The court will form its own view as to his evidence. We do not suggest that he had an intent to mislead but he showed a carelessness which verged towards recklessness in making statements which he must or should have known were to be relied upon. His evidence may also have shown an overconfidence in his own professional judgment and ability that was indifferent to the correct assessment process."

17. Ms Lee and Ms Weir pitch the findings they seek very highly indeed, they are of the utmost gravity. It is for this reason that I required counsel to be very clear about the legal framework. Ms Lee has, in the proper presentation of her case, repeatedly impugned Dr Harper's integrity and honesty during the course of her cross examination. It is alleged that he has fabricated the fact of the discussions between himself and the Mother and, says Ms Lee, where there is no written note of any topic of discussion it has been, in effect, invented by Dr Harper. There is no ambivalence in the way Ms Lee advances her case. In her closing written submission she asserts:

"For the avoidance of doubt, it is submitted on behalf of the mother that Dr Harper's account of the 'discussions' that took place on the 6 April is a lie. Likewise his handwritten note is a fabricated document (Finding 9) in which he has attempted to back-fill some of the gaps that he knew would come to light once he was alerted to the fact that the assessment sessions on the 15 and 23 March 2016 had been recorded; he of course being present at both sessions and knowing exactly what he discussed and what he did not. As such, it is submitted that his handwritten note can not be relied upon."

18. Given that the earlier meetings were recorded and transcribed it must follow that the purported quotations from the Mother not covered on those sessions must therefore have taken place at the meeting at the contact centre on the 6^th April 2016. This inevitably therefore has been the focus of the dispute at this hearing. The first conflict of evidence is as to the length of the meeting. There were in fact two meetings, one before the children arrived for an observed contact session and a second later encounter in the car park at the conclusion of the session.
19. The 6^th April was a day on which plans went awry. The Mother had been led to believe that her meeting with Dr Harper was to provide her with advice on how best to manage the eldest child's challenging behaviour. On Dr Harper's account he had decided to change the agenda and look at what he has referred to as 'the inconsistencies of the Mother's various narrative accounts'. He had, to my mind, settled on the view, for reasons that I will come to below, that this was the key issue in this case. The undoubtedly discrepant histories of her own childhood and relationships recorded from the Mother are, as Ms Morris QC (on behalf of Dr Harper) describes them, 'polar opposites' and 'at a 180 degrees to each other'. Essentially, there is both a light and benign version of these issues alongside a dark and abusive account. In any event what is clear is that the Mother finds discussion of both these areas to be highly unsettling and distressing. That she would do so was anticipated by Dr Harper but nonetheless so important was this issue to him that he forced it through in circumstances which were, in my judgement, insensitive to the Mother. Of course it follows from this comment that I have accepted his account of the 6^th April, at least in part. In fairness I should record that Dr Harper offered the Mother a further appointment which she did not take up.
20. In addition, building work was being undertaken at the contact centre and it was necessary to shorten the contact. This had not been communicated to the Mother, Dr Harper or I assume the children either. The conditions both in which to observe contact and to undertake important features of the assessment of the Mother were inimical to constructive and fair assessment. I am satisfied that the Mother was understandably upset and that Dr Harper's account of her as agitated is an honest expression of his perception.
21. The second meeting in the car park was cursory and ended peremptorily in the rain. The first meeting was, on either party's view no longer than 15 minutes. It is not necessary for me to resolve the conflict as to the duration of the meeting, there is very little between the Mother's recollection and Dr Harper's. What is significant is that in this period Dr Harper contends that he dealt with somewhere between 13 and approximately 20 significant points of assessment.
22. From his notes of assessment it is clear that some of the issues were discussed. The notes are silent on other issues. In his analysis Mr Cohen submits that Dr Harper 'has produced no satisfactory explanation of the inconsistencies nor is his credit enhanced by what seems to us to be an unwillingness to recognise the effect of his wrongdoing'. This leads Mr Cohen further to submit:

"We suggest that as a result of his admissions the burden should shift to him to show that he has accurately reported the gist of what the mother has said in interviews. In light of the above this is a difficult burden for him to satisfy and he has failed to do so."

23. Ms Morris vigorously resists this approach, she contends that the burden of proof rests on the applicant and does not shift. I agree. Certainly Dr Harper's admissions require him to explain his admitted misconduct but they do not cast upon him some additional burden of proving the accuracy of his notes of what he contends the Mother said to him in interview.
24. I do not propose further to burden this judgment with a list of the various topics which Dr Harper contends were discussed on the 6^th April. In response to Mr Cohen Dr Harper accepted that there were 13 topics. I simply fail to see how this range of challenging and difficult material could have been covered to the extent that Dr Harper purports in such a limited time. It would have involved rapid fire question and answer on each topic. Given the circumstances and the nature of the material, such a process would have also required a degree of brutality or at least gross insensitivity. The subject matters ranged across e.g. domestic abuse, childhood experiences, sexual issues. Having listened to Dr Harper in the witness box he does not strike me for a moment as a man capable of such crassness. His work has been widely respected. I do consider that there was an enthusiastic effort by him to cover some of the material that day. I entirely accept his evidence that his notes are genuine and not fabricated, as Ms Lee contends, but I find on the balance of probabilities that some, though not necessarily all, of the material which is not corroborated by the notes was most likely drawn from other sources and incorporated into the report again as if it were direct speech from the Mother to Dr Harper.
25. There is one further issue that requires to be addressed. Dr Harper recounted in his report that he had completed the Impact of Events Scale Revised Trauma Assessment. In fact the Mother had disengaged from the start. The assessment could hardly be said to have been 'completed'. This Dr Harper acknowledged. It is right to say that Dr Harper also goes on to state that the Mother 'would not fully engage in the assessment' even when its importance was emphasised to her. That did not wholly accord with his evidence either though I agree with Mr Cohen it is a 'lesser failing'. It's significance is that it casts some light on how the conventional academic and forensic discipline came to break down here.
26. 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 it 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. It simply cannot be reconciled with those duties which I have pointedly set out above at para 10 and 11. Moreover, it is manifestly unfair to the Mother, who it should be emphasised is battling to achieve the care of her children whilst trying to manage life with diagnosed PTSD. Ipso facto this is a case of unique gravity and importance. Common law principles of fairness and justice demand, as do Articles 6 & 8 of the ECHR, a process in which both the children and the parents can properly participate in a real sense which respects their autonomy. Dr Harper's professional failure here compromised the fairness of the process for both Mother and children. These are fundamental principles emphasised in Re B-S [2013] EWCA Civ 1146 and Re A [2015] EWFC 11.
27. Mr Rowley, on behalf of the Local Authority, submits that Dr Harper's central thesis is probably correct. He summarises it succinctly thus:

"Dr Harper's concern about the mother's inability to provide a consistent narrative about her relationship history and childhood experiences is again objectively valid. It cannot be sensibly argued that the mother has done anything other than provide wildly divergent accounts of such experiences. Whether this is, indeed, impression management or the consequences of her PTSD it robs the psychological professional of a baseline for diagnosis and thus prognosis and treatment recommendations. This makes it, as Dr Harper concludes, difficult (to say the least) for measurement and management of risk."

28. Mr Rowley may very well be right. He goes on to suggest that notwithstanding the significant criticisms made of Dr Harper, his report should be allowed to stand, with the Judge who hears the case entitled to give it such weight, if any, as he thinks fit. I disagree. These are such fundamental failures of methodology that I do not consider any Judge could fairly rely on the conclusions. Furthermore, there is an inevitable risk that were I not to order that a new expert be instructed the Judge might at the conclusion of the hearing find a lacuna in the evidence in consequence of his being unable to rely on Dr Harper's opinion. That would result in further delay for the children in a case where I have been told the final hearing is now unlikely to be effective in any event. The delay in this case in already unacceptable, the harm caused to the children because of it is the responsibility of the professionals not, I emphasise, the Mother.
29. I should say that my conclusions here are predicated substantially on my evaluation of Dr Harper's evidence and the available written material. I have found myself unable to place a great deal of weight on the Mother's own evidence even where my findings are essentially in her favour. I agree with Ms Morris, who advances the point sensitively and elegantly, when she says that the issue in the Mother's evidence is 'reliability' not 'credibility'. Her reliability is sadly compromised by her inconsistent accounts which may well be, as Dr Harper has postulated, a facet of her psychological distress. I have in mind Re H-C ( Children) [2016] EWCA Civ 136 and R v Lucas [1981] QB 720.
30. Finally, there has been much discussion at the Bar as to how I should characterise Dr Harper's professional failings. Ultimately I have come to the conclusion that the language or nomenclature is irrelevant. What matters is the substance of my findings and their impact on these children.
31. Ms Lee is right to emphasise the observations of Butler-Sloss (P) in Re U: Re B (serious injury;standard of proof) [2004] 2 FLR 263 at para 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"

32. I do not consider that Dr Harper has developed a scientific prejudice nor that he is jealous to guard his amour-propre but I do consider that his disregard for the conventional principles of professional method and analysis displays 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.