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Re C – considering "parental alienation" and the use of experts in Children Act proceedings

Posted on 3 March 2023

When it comes to deciding on the time that children should spend with each of their parents, it is always preferable to resolve issues without going to court. However, this becomes particularly difficult where one parent claims that the other has been engaging in "parental alienation". A recent decision by the President of the Family Division, Sir Andrew McFarlane P, has provided guidance on the vexed question as to who can and should act as a court-appointed expert where parental alienation is alleged.

What is parental alienation?

Parental alienation has been defined as the unjustified resistance or hostility from a child towards one parent as a result of psychological manipulation by the other parent. The word "unjustified" is key – there can be situations (e.g. where there has been a history of domestic abuse) where a child's hostility towards one parent may be understandable.

Why are parental alienation cases difficult?

Cases where there may be parental alienation can be difficult for a number of reasons – primarily in ascertaining whether there has been alienation at all. (Parental alienation is a controversial term and is sometimes described as "implacable hostility" instead.) Frequently, one parent will accuse the other of having alienated a child, whereas the other parent will claim that any rejection by the child is due to the actions of the parent claiming alienation. It can be difficult for a court to ascertain family dynamics – both when the parents were together and since their separation.

If there has been alienation, there is a further difficulty, in that the more time that passes, the more likely it is that the child may reject the alienated parent completely – the longer the case goes on without resolution, the harder it will be to restore a positive relationship.

How do courts decide whether there has been parental alienation?

There are a number of options available to the court. It can:

  • consider the direct evidence of the parents;
  • invite Cafcass to prepare a report;
  • appoint a Guardian to directly represent the child; and
  • appoint an expert to work with the child and parents.

A number of psychologists are willing to act as experts in cases involving parental alienation. However, concern has been raised as to the lack of regulation of some psychologists, particularly where the professional in question is not registered with the Health and Care Professionals Council (HCPC). Guidance from the British Psychological Society (BPS) in May 2022 on psychologists as expert witnesses noted that the court has discretion to appoint individuals who were not members of the BPS or registered with the HCPC, but that the court should determine that the person has relevant psychological knowledge or training.

One such case has recently been considered by the President of the Family Division. In Re C ("parental alienation"; instruction of expert) [2023] EWHC 345 (Fam), a psychologist was of the view that a mother had alienated the parties' child from the father. The court accepted the opinion of the psychologist (as well as the other evidence before it suggesting alienation by the mother) and ordered that the children should live with the father. The mother appealed, stating that the psychologist was not suitably qualified to provide expert psychological evidence and should not have been appointed as an expert in the case.

Sir Andrew McFarlane P considered the concept of parental alienation and noted that the decision about whether a parent has alienated a child is a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist. He stated:   
Most Family judges have, for some time, regarded the label of 'parental alienation', and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of 'alienating behaviour' should be the court's focus, rather than any quest to determine whether the label 'parental alienation' can be applied.

What did the court decide about the use of experts?

Sir Andrew McFarlane P dismissed the mother's appeal. He rejected any suggestion that the appeal should be used to determine whether the expert's qualifications were sufficient for her to act as an expert, where to do so would properly require an evidential enquiry and hearing more suited to disciplinary proceedings, rather than simply submissions on appeal. He also rejected the appeal on the basis that the evidence of the psychologist had been only one limb of the Judge's decision, the Judge having rejected the mother's oral evidence and made free-standing findings against her. The Judge had also had regard to the evidence of the Guardian, who, using Cafcass' alienation tool, had come to the view that the mother had been alienating the children.

However, the President also took the opportunity to provide guidance on the use of experts in family proceedings. He noted that there is no definition of "expert" for the purposes of family proceedings, and no definition of "psychologist" beyond seven specific titles (such as clinical psychologist) which have statutory protection. The generic label "psychologist" is not protected and may be used by any individual, whether registered or not. He considered it a matter for the psychological profession and, ultimately, Parliament, as to whether a tighter regime should be imposed.

Whether a person is capable of assisting the court by providing exert evidence is a question of fact, rather than one of law. Whether an expert is "qualified to give expert evidence" will be a matter for the court in each individual case. The court does, however, need to be clear as to an expert's qualification and/or experience. HCPC registration, or chartered status in the BPS, provide a reliable, one-stop, method of authentication. Where a potential expert is registered with the HCPC and is entitled to hold themselves out as an expert under one of the protected titles, this can be taken as sufficient qualification to offer an opinion within that field of practice. An unregistered psychologist should assist the court by providing a short and clear statement of their expertise. The court should be clear as to whether an expert is registered or not. If a court considers it appropriate to instruct an expert who is unregistered, the court should indicate in a short judgment why it is nevertheless appropriate to instruct them.

Sir Andrew McFarlane P indicated that he will invite the Family Justice Council to investigate this issue and consider issuing further guidance.

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