A mother accused of alienating her children from their father has won an appeal to overturn a decision by a district judge to instruct a psychological expert in her case.
The lower court had been wrong to make an order inviting the expert to undertake psychological assessments of the parents and two children and for doing so without giving proper reasons, according to a more senior judge.
The successful appeal at Watford family court is significant because it follows new guidance from Sir Andrew McFarlane, president of the family division of the high court in England and Wales. This stipulates that a decision on whether or not a parent has alienated a child should be a question of fact to be resolved by the court – and not a diagnosis offered by a psychologist.
The appeal before Judge Middleton-Roy relates to a case concerning children aged nine and 12 who live with their mother and have only indirect contact with their father.
During earlier proceedings the court heard expert advice in the form of a psychological assessment of the parents in April 2021.
They identified that the mother did not have a current mental health disorder and felt the need to protect herself from the father.
Meanwhile the father was “considered to have limited insight into his ability to think reflectively and empathetically about his children” and it was suggested he might use “coercive anger to manage his feelings about relationships”, according to Middleton-Roy’s judgment.
However, the designated children’s guardian put in an application for new expert evidence after the father claimed the mother had alienated their children from him.
The district judge – who is not named in the judgment – made an order in June 2022 permitting the instruction of a new expert, and also approved questions they should address in their report.
It was suggested the new expert should examine whether either parent had tried to alienate the children and, if so, that they should comment on “the impact upon the children, what work the parents will need to undertake to remedy any such negative influence, timescales and cost”.
Parental alienation is commonly described as a child’s unjustified hostility or rejection of one parent for no reason other than that they have been manipulated – whether consciously or not – by the other parent.
The Observer first reported on the use of parental alienation experts in the family court in June 2021 amid concerns the concept was being used as a litigation tactic by perpetrators of abuse – with the result that children were removed from their mothers.
Middleton-Roy wrote in his judgment, published last week: “The expert was being invited to provide an opinion about parental alienation. In the judgment of this court, that is outside the expert’s remit.”
He added: “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 judge had been wrong to order the assessment, according to guidance from McFarlane in a landmark judgment known as Re C published in February, said Middleton-Roy. In it, McFarlane urged that an observation put to the court by the Association of Clinical Psychologists-UK should be accepted.
The professional body had argued that, like domestic abuse, whether or not parental alienation had taken place was a question of fact and that “parental alienation” was not a syndrome capable of being diagnosed.
The ACP-UK has complained about the use of unregulated experts, but many of those who describe themselves as specialists in parental alienation are registered with The Health and Care Professions Council.
Allowing the mother’s appeal, Middleton-Roy noted that no facts had been found by the court on the issue of parental alienation and that the experienced district judge had failed to consider a number of factors and failed to give a judgment.
The barrister Charlotte Proudman, who represented the mother, said: “There has been increasing concern about the growing number of experts who advertise as specialising in parental alienation and are used by the family courts to resolve disputed allegations. The result of this appeal marks a shift away from that trend which has been deemed problematic.”
