Dr Charlotte Proudman successfully represented a mother, who is a survivor of rape and male violence in an appeal against undergoing a psychological assessment by a male practitioner. The mother had experienced abuse from a male practitioner in the past and felt traumatised in court.
The mother was not given the necessary participation measures (special measures) in previous hearings and was forced to share her trauma in front of the respondent father. The judge allowed the appeal on two grounds of the appeal.
The Respondent father applied for a child arrangement order concerning their child. The child has lived with the Appellant, his mother, since late 2020 and has had contact with the Respondent, his father. On August 9, 2023, Judge Jacklin KC scheduled a final hearing and approved the father’s request for Dr Hessel Willemsen to conduct a psychological assessment of A and his parents, with the report due by November 3, 2023.
Successful Appeal Grounds:
“Ground 1: The Judge was wrong to order Dr Willemsen to carry out a global psychological assessment of the family in a context where mother stated she would feel traumatised during and following an assessment with a male psychologist after suffering rape and other forms of male violence. As a result, the mother will not be able to give her best evidence during the assessment process contrary to Part 3A and PD3AA FPR 2010. The Judge was wrong to dismiss mother’s application to instruct a female psychologist.
Ground 2: The Judge failed to identify that the mother was a vulnerable person pursuant to the Domestic Abuse Act 2021 and Part 3A and PD3AA FPR 2010, as a complainant of domestic abuse (as identified in her C2 application and throughout the bundle). Accordingly, the Judge was wrong not to implement participation directions for the mother, a litigant in person to ensure she could not see the father by directing him to switch off his camera, as such mother’s ability to participate in proceedings was likely hindered.
Arguments & Disclosure of Previous Male Violence:
“The Appellant says that she has been a victim of domestic abuse and coercive and controlling behaviour by the Respondent; the Respondent denies the allegations.” [12]
“The Appellant’s allegations were before Recorder Searle who was being asked amongst other matters to set the case down for a fact-finding before the assessment in question in this appeal is conducted. Despite the court having knowledge of the allegations, no participation directions were put in place for the Appellant at that hearing. Thus, on behalf of the Respondent it is accepted that the hearing was procedurally irregular, but it is argued it was not unfair…” [13]
“It is common ground between the parties that the Appellant first raised objection to being assessed by Dr Willemsen on the basis that she is a victim of male violence and the psychologist instructed was a man whilst making oral submissions before Recorder Searle…After the learned Recorder had given judgment, I am told that the Appellant then told the court of significant further male sexual, physical, and emotional abuse that she had sustained at the hands of a third-party males (not the Respondent) during her lifetime. Those abusive experiences include, the Appellant tells the court, sexual abuse by a consultant paediatrician when she was a teenager. The Appellant’s case is that the level of detail she felt compelled to give to justify not wishing to be seen by a male psychologist caused her such distress that she was not able to put her case forward as she wished. This was, it is said, compounded by the failure of the Recorder to implement any participation directions in accordance with the rules.” [15]
“The Appellant tells this court that she is currently seeing a female psychotherapist and that she has only ever received mental health support from females because of her history of being a victim of male violence. The Appellant has no objection to undergoing the assessment as ordered by HHJ Jacklin KC but argues that given this is to be a single joint instruction then the assessor appointed by the court should be female. Otherwise given her history, she is unlikely to be able to participate fully and give her best evidence when being assessed.” [16]
“The Respondent argues that this appeal is a backdoor appeal against the original directions made by HHJ Jacklin KC in August 2023…However, “there may be exceptional cases in which the court would not apply the general principle …”. [17] “On behalf of the Respondent, it is said that this is not such an exceptional case.” [18]
Vulnerability & Giving Evidence:
“On behalf of the Appellant I have also been reminded that FPR r.3A.4 and r.3A.5 specifically require a court to consider “whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability”. [22]
Finally on behalf of the Appellant, I was referred to in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (para 36), wherein Baroness Hale referred to the flexibility inherent in family proceedings and said that “The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way that best enables the court to assess its reliability”. [23]
Judgment:
“…Recorder Searle ought to have known that the Appellant was raising allegations of domestic abuse against the Respondent because they were the evidential foundation of the application for a non-molestation order before the court. I have asked myself whether the failure to put in place participation directions in this instance amounted to a breach of natural justice…In this case, I considered that it did. The Appellant was an alleged victim of domestic abuse.
The Recorder himself states in his judgment that the Appellant was clearly emotionally upset in the hearing before him. The Appellant’s reason for objecting to an assessment by a male psychologist was her experience of sexual, emotional, and physical abuse by third party males. She says that on the remote link she was inhibited from revealing that abuse by the lack of protective measures in place; in particular by being able to see the Respondent. It led to her blurting out her reason after judgment was given and the case all but concluded.” [28]
“…having studied the transcript of Recorder Searle’s extempore judgment and the recitals on the order he approved, I consider that his engagement with the Appellant’s argument based on the sex of the psychologist was, at best, superficial. In particular, it failed to weigh in the balance that the Appellant would not be able to participate in an assessment by a man by reason of the past trauma she had suffered which included past abuse by a male medical professional. Consequently, I consider that his decision-making on the issue was wrong.” [29]
“…on the facts of this case, I consider that the best possible assessment evidence will be obtained by appointing a female psychologist to undertake the assessment…In particular, the Appellant, who is a victim of third-party male violence, will have the best opportunity to participate in the assessment process and give of her best during the assessment.” [33]
Read the case here.
Related barristers: Dr Charlotte Proudman
