This was an appeal against a private law case management decision by a District Judge permitting the instruction of an expert in a case involving an allegation of parental alienation.
The subject children, aged 12 and 9, were parties to the proceedings through their rule 16.4 Children’s Guardian. The children lived with their mother and had indirect contact with their father.
On 1st June 2023 a District Judge granted a Part 25 application by the Children’s Guardian for expert evidence with the court ordering a psychologist to undertake a global psychological assessment of the parents and both children. The mother appealed. Permission to appeal was granted on 25th July 2023.
The grounds of appeal were:
- The Judge was wrong to order a psychological assessment, which invites the expert to determine the factual matrix of disputed allegations, contrary to the President’s decision in Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam);
- The Judge was wrong to order a psychological assessment of the parents and the children without considering the test of necessity under Part 25 of the Family Procedure Rules 2010; and
- The Judge failed to give any reasons for ordering a psychological assessment.
The appeal was allowed on each ground. HHJ Middleton-Roy found that the District Judge ‘did not engage with the issues in dispute, did not adjudicate on the disputed issue by reference to the relevant legal principles and did not provide the parties with any reasons for granting the application.’ The decision of the lower Court was wrong and was set aside.
The judgment helpfully reminds us of the President of the Family Division’s observations in Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam):
“Before leaving this part of the appeal, one particular paragraph in the ACP skeleton argument deserves to be widely understood and, I would strongly urge, accepted:
‘Much like an allegation of domestic abuse; the decision about whether or not 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. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.’
…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.”
In respect of the first ground of appeal, after considering the questions to the expert, HHJ Middleton-Roy found ‘the expert was being invited expressly to provide an opinion about parental alienation…The decision about whether or not 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. It is the Court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert. The identification of alienating behaviours should be the Court’s focus, where it is necessary and demanded by the individual circumstances of the case for the Court to make such factual determinations leading to final welfare decisions for the child.’
In respect of the second and third ground of appeal, HHJ Middleton-Roy considered the transcript from the hearing in the lower court. HHJ Middleton-Roy found in summary:
- No judgment was given by the lower Court
- the District Judge did not engage in the arguments raised by the parties
- No reasons were given by the Judge at all
- No facts had been found by the Court on the disputed issue of parental alienation
- There was no consideration by the District Judge of the mother’s assertion that the father had not completed the work recommended by a previous expert
- There was no consideration by the District Judge of the potential harm to the children of exposing them to another professional, where they had already been required to meet the Guardian and a Local Authority Social Worker.
- No determination by the lower Court of the key issue in dispute, namely, whether expert evidence was necessary, by reference to the relevant factors in section 13(7) of the 2014 Act.
- The omission of a judgment is significant; it was not simply a procedural error. Judgments are the means through which Judges address the litigants and the public at large and explain their reasons for reaching their conclusions. A judgment providing reasons for rejecting one party’s submissions or preferring the submissions of another party was a fundamental aspect of the Court’s duty to deal with the case justly.
