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Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345
Allegations of parental alienation regularly arise within private law proceedings. Often this leads to the instruction of a psychologist to undertake a global psychological assessment of the family to assess whether there is evidence on parental alienation. The following Judgement by the President of the Family Division highlights some key points when considering a case where parental alienation is alleged and when deciding whether to instruct an expert.
On 21 February 2023 the President of the Family Division handed down judgment in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). In this case the mother sought to appeal a Judge’s refusal to reopen findings of fact that had been made in 2021. The mother’s basis for appeal was that the expert instructed in the proceedings were unqualified to give expert evidence on the issues of parental alienation and should never have been instructed. This view was latterly supported in the view by the Association of Clinical Psychologists. The President’s judgment focuses on the instruction of experts in proceedings where there is an allegation of parental alienation and highlights some key points when considering the importance of such an instruction.
The President considers within his Judgement whether there is any definition of an ‘expert’ in the context of family proceedings, and the definition of a ‘psychologist’. At paragraph 86 onwards, the President highlights the recent guidance in respect of unregulated psychologists. In particular, the President highlights that there is a need for rigour during the process of identifying and approving an expert for instruction in family proceedings. The President’s view as highlighted at paragraph 102 is that work should be done to assist parties and the Court at the initial stage of choosing an expert by establishing a template into which the basic qualifications of any ‘psychologist’ should be entered.
In respect of the term ‘parental alienation’, at paragraph 103 the President notes:
“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.’
It is not the purpose of this judgment to go further into the topic of alienation. 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.”
Having considered the various issues, the President dismissed the appeal and upheld the decision of the Judge at first instance.
This case highlights that when dealing with a case of allegations of parental alienation careful consideration should firstly be given to the identification of any proposed experts and secondly it is not for the psychologist to diagnose parental alienation and such a view should not be offered by a psychologist. It is for the psychologist to consider whether there has been a process of manipulation of children perpetrated by one parent against the other and it is for the Court to determine as a matter of fact whether there has been alienating behaviours.
This Judgement also helpfully reiterates the law to be applied when considering whether findings should be re-opened which in summary as highlighted in the case of Re E [2019] EWCA Civ 1447 is as follows:
A court faced with an application to reopen a previous finding of fact should approach matters in this way:
(1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality of litigation on the one hand and soundly-based welfare decisions on the other.
(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.
(3) ‘Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.’
There must be solid grounds for believing that the earlier findings require revisiting.”
