A judge has ruled that a court-appointed expert can be named after their qualifications and conduct were challenged by a mother who claimed key evidence they provided led her children to be removed from her care against their wishes.
The case raises questions about the regulation and use of psychological experts appointed to the family courts, in particular when allegations of “parental alienation” are made – meaning a child has unjustly rejected one parent due to manipulation by the other. The Observer won an application to name the expert in the case after making a series of submissions to the family court.
Guidance states expert witnesses should be named in published judgments. But there have been recent concerns about transparency following several judgments featuring “parental alienation” where the names of psychological experts have been redacted. In October, the press was blocked from naming an expert who was replaced after a mother complained about their qualifications.
This latest case concerns the welfare of two siblings who have been the subject of litigation over many years since their parents separated. They were living with their mother when a shared custody agreement broke down because one of the children refused to see their father.
A psychologist with experience in “parental alienation” cases, Melanie Gill, was jointly instructed. In October 2020, she filed a report concluding the children had been alienated from their father by their mother and the family needed therapeutic intervention. The children were transferred to their father’s care and the mother was granted limited contact, which has gradually increased over time.
But at a hearing last month, a barrister argued that the mother’s case should be re-examined because the welfare orders made by the court were based on evidence provided by Gill, who was not properly qualified to provide the expert opinion or therapeutic recommendations she did, and should not have accepted the instruction.
In documents submitted to the court, Jo Delahunty QC wrote: “In private law proceedings, few decisions are as draconian or potentially life-changing as the decision to transfer residence against the will of one parent and the wishes of the children.”
She argued that the decision to transfer custody to the father and the welfare orders made were influenced by Gill, who reported in “circumstances where she was not and is not qualified to provide expert psychological evidence”.
At the 7 June hearing, Delahunty told Her Honour Judge Davies that her client was applying to have her case re-heard following a flurry of official guidance issued since the court made its findings and which brought the subject of court-appointed experts and their qualifications into sharp focus.
Delahunty quoted a speech given by the president of the Family Division, Andrew McFarlane, in which he said the court must be careful to only appoint experts with “relevant expertise” when “parental alienation” is raised. He added: “Pseudo-science which is not based on any established body of knowledge will be inadmissible in the Family Court.”
The barrister also referred to a December 2021 statement by the Association of Clinical Psychologists UK which highlighted cases where “psychological experts” who are not registered with the regulatory body the Health and Care Professions Council had in some cases made recommendations for children to be removed from their mothers based on “inappropriate diagnoses”. Delahunty told the court that Gill was not regulated and yet “attributes of her work fell within the skill base of a clinical psychologist”, which is one of nine protected titles that allow for regulation by the HCPC, which Gill is not qualified to register with.
If an expert is not regulated, there is no way of holding them to account for any potential misconduct, Delahunty made clear.
She said that the chair of the ACP-UK, Prof Mike Wang, had submitted a letter to the court about Gill. “Mr Wang said she is not someone who should be calling herself a psychologist, is unregulated and should not be carrying out psychological assessments and making diagnoses.” She told the judge: “You now have cause to be deeply concerned about the evidence she gave.”
An earlier published judgment noted that Gill – although her name had been redacted – had suggested “various forms of therapy should be undertaken by each member of the family”. It states: “The therapists have liaised with [Gill] who has drawn together the work they have been undertaking.”
However, Delahunty highlighted guidance issued in May 2022 which says the court should be “extremely cautious” when asked to consider assessment and treatment packages offered by the same or linked providers.
She alleged that Gill had failed to disclose a business relationship with one of the two therapists involved with the family and claimed there was a “triangular relationship between the two therapists and Gill”.
In February, the father made an application to suspend all contact between the children and the mother in order for the therapy to be effective. Gill had signed a joint letter with the therapists recommending a “minimum of 90 days of no contact whatsoever” with the mother.
However, at a hearing the same month Davies advised that the therapy, which had been rejected by the siblings, should come to an end and the mother should have some contact.
At the June hearing the court heard how Gill had been investigated for using a protected title after claiming to be “trained in child forensic psychology”.
Delahunty said: “She was positively investigated by the HCPC that required her to cease using that title because she was in breach of the regulations order.”
The barrister also said that Gill did not take account of a previous 2015 judgment by a district judge which found that there had been coercive and controlling behaviour on the part of the father. And, in documents submitted to the court, she said: “Ms Gill adopted an approach in her assessment in which no account was taken of the children’s wishes and feelings.”
It was also claimed that, after her engagement as a court-appointed expert had ended, Gill was “inappropriately involved in therapeutic provision”, funded by the father without the mother’s knowledge.
Delahunty told the court that the impact on the mother of Gill’s report caused her to react in distress, and her actions, which the court read as “parental alienation”, were “instead a reaction to the changed living circumstances and the grief at being separated from the children, and the real fear they would now be placed in the home of a man who had been found to be coercive and controlling”.
The father, represented by Charles Hale QC, opposed the mother’s application on the basis that the same arguments were presented in court documents seeking permission for the mother to appeal in 2021 and rejected by a High Court judge, Mr Justice Peel.
At the June hearing, Hale said: “It was found that the mother was not credible or reliable. In contrast, [Peel] was positive about the father. He made clear “there were no grounds for appeal”.
Hale said the application should be struck out. He reminded the court there had been no appeal against Gill’s joint appointment at the time, adding: “Melanie Gill’s evidence was only one part of the evidence considered by the judge.”
“Everybody knew what her expertise was based on her CV, and nobody challenged it. It is an abuse of the process and an attempt to undermine the appeal process.”
He went on: “In any event, the application must fail on its own merit. The children are thriving.” Addressing Davies, he added: “There is no solid grounds for a re-hearing of your decision. The importance of your judgment is and was in the best interests of the children, and that is undeniable in view of their current situation.”
Handing down a judgment on 15 June, Davies said she had taken account of the various guidance issued since the court made its findings.
She said all the parties had agreed on Gill, who was jointly instructed because she had extensive experience in “parental alienation” cases. Davies said she had considered other evidence in addition to Gill’s report, including that of the children’s guardian and her own analysis of the “credibility of the mother based on her own evidence”.
The judge acknowledged that “for many years” there has been a debate about the definition of a “psychologist”, arguments about the differences between types of psychologists – such as a clinical psychologist or someone who followed a degree course in psychology – and the various professional bodies’ opinions on whether or not only those registered with the HCPC should be instructed in cases.
“At some point, simple guidance will be helpful to everyone to avoid the type of arguments that have arisen in the current case,” she said.
Citing recent guidance, Davies noted that it remains at the discretion of the courts to appoint experts who are not regulated. “Whether this is a good thing or not is not for me to determine,” she added.
Of Gill’s findings, she said: “I accepted her conclusion about alienation. I did not agree with her recommendations for stopping all contact [with the mother]. The findings are and remain significant to the children.”
The financial and emotional cost to the parties “has been immense” she said, adding that the children are thriving and another year of litigation would be damaging for them.
Rejecting the mother’s application to reopen the final hearing, Davies told the court: “A new report by a new expert would not assist the children. This is not a case where new evidence has come to light. There is no reason to think a re-hearing will result in anything different.”
The Observer made an application to vary the automatic reporting restrictions applied to private family court hearings, and a further application to name Gill.
Davies made clear she made no criticism of Gill and the court made no findings that discredited her. She told the court: “She had not held herself out as being something she is not. She fulfilled her instructions. I have come to the conclusion there is no reason why the name of the expert cannot be disclosed.”
