The family court should not ordinarily permit the instruction of “experts who purport to be ‘experts in alienation’,” in cases involving decisions around child welfare, the Association of Clinical Psychologists (ACP-UK) has advised a senior judge.
The organisation made submissions to the high court at the appeal of a mother who had her children removed from her care against their wishes, after being found to have alienated them from their father.
In a court document seen by the Observer, lawyers for the ACP-UK claim those who profess to be “experts in alienation” display a “confirmatory bias and an unhelpfully narrow lens, which is likely to render them unsuitable for conducting, in an open-minded way, a psychological assessment of the family”.
Barbara Mills KC wrote that – 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”.
She said 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.”
At a hearing before Sir Andrew McFarlane, Mills also warned against using psychologists who are neither practitioners regulated by the Health and Care Professions Council nor academics who are chartered members of the British Psychological Society.
McFarlane is considering the appeal of a mother who claims that a jointly instructed expert who advised a judge in Peterborough that she had alienated her children was “not properly qualified”. She is appealing after Judge Lindsay Davies, who accepted Melanie Gill’s conclusions of “alienation”, refused to open a re-hearing of the case. Davies made no criticisms of Gill, but in her judgment she suggested that “simple guidance” would be helpful to avoid the arguments about experts that arose in the case.
The case raises important questions around policy and practice with regard to how the family court deals with the instruction of psychological experts and their regulatory status.
Representing the mother at appeal, Joy Brereton KC told the court: “The issue is whether Ms Davies was right. Up and down the land judges make decisions about children’s lives. Children are removed from families by the state which is draconian.” She alleged that the impact of Gill’s report was “huge”, leading to life-changing conditions for the children who now live with their father, and added that court-appointed experts occupy a “powerful space”.
McFarlane, the president of the family division of the high court, said Davies’ findings were based not only on Gill’s report but also on her own appraisal of the totality of the evidence, including the mother’s own evidence.
Gill insists she is a properly qualified expert and says she is the victim of a “witch-hunt”.
McFarlane said he would consider the woman’s appeal of “crucial importance” along with the “big issue” of what guidance he should give on the instruction of court-appointed experts. He said there was a lot to be said about “taking more time at an early stage” to select an expert with “eyes wide open”.
The ACP-UK said Gill was “neither regulated nor chartered” and told McFarlane it was “never appropriate to instruct ‘psychologists’ to undertake the type of assessment Ms Gill was instructed to undertake in this case”. It claims to have been contacted about Gill in respect of six different cases in the past year.
Mills said: “… this is not a case of an expert who has discharged their role poorly or gone beyond their remit, but a stark and troubling example of an individual who holds herself out as an expert but has neither the qualifications nor relevant skills to so hold.”
She added: “The present case is a concerning example of the consequences of instructing an expert who is not, in fact, an expert at all, and then acting on their advice. It is a practice that must swiftly come to an end in the family court, or else the court itself risks becoming an agent of harm.”
Mills said that even if Gill were qualified to assess the family in the way she did, the ACP-UK claims her reports were of “particularly poor quality” and “totally inaccessible”.
The “most concerning” aspect of Gill’s assessment, said Mills, was her treatment of the voice of the child and the reports the children made to her.
“At the outset of her report, Ms Gill explains that she would not ask directly for ‘wishes and feelings’ from the children because ‘in these cases such information is not necessarily reliable’,” noted Mills.
The ACP-UK claims it is “never appropriate to exclude a child’s wishes and feelings”, said Mills, adding that Gill “took this much further” by dismissing allegations of abuse one of the children made about their father as “not credible”.
Mills said her “entirely inappropriate” decision to make determinations about certain facts was compounded by her decision to “effectively ignore” findings of coercive and controlling behaviour on the part of the father made by a district judge in 2015.
A barrister representing Gill defended her work, arguing she was an “expert” and did not need to be “regulated” to advise the court in the way she did. He pointed out that the ACP-UK was not a regulator.
Andrew Bagchi KC told the hearing there was a “whiff of a witch-hunt”, and that Gill had previously been targeted by litigants who had lost and want to complain. Gill’s career was on the line, he told the court.
He said non-practitioner psychologists are able by their qualifications, training and experience to offer expert evidence to the court about the welfare of children. In a written case outline, he described how Gill has been an expert witness in Children Act cases for more than 15 years and has been instructed to provide expert reports in “somewhere around 70 to 100 cases”. She has a BSC degree in psychology from Brunel University and a postgraduate diploma in child forensics, psychology and law from Leeds University, the court was informed.
Bagchi said Gill’s qualifications were the “subject of the most searching and probing investigation” at a previous hearing before Davies and the judge had concluded that Gill was an expert.
He said: “The court was mandated by the rules and guidance to investigate her relevant credentials. It did so and on the basis of the information provided to the court made a decision which is, we submit, plainly unassailable by way of appeal.”
Bagchi invited the court to “reject roundly the criticisms levelled against Ms Gill as a basis for appeal” and said there had been an “ad hominem attack” made on his client by the “appellant, her advisers and supporters”.
Gill’s professional standing risks being serious “collateral damage” to the central point that the mother cannot see “past her own lack of insight”, said Bagchi, adding that Davies had previously found the mother’s evidence “was not reliable or credible”.
He pointed out that parliament could, in theory, have legislated so as to prohibit the instruction of non-regulated psychologists, adding: “It has not.”
Strict rules on regulation would only further diminish the “very small” pool of experts willing to assist in high conflict private law cases, he told the court.
“The fewer the number of experts, the longer will be the already frightening delays…” said Bagchi, who will make further submissions on Gill’s behalf when the hearing resumes.
It is the father’s position that there are no solid grounds for appeal. He said Gill, who was proposed by the children’s guardian, was instructed “because the mother refused to allow proper contact to take place as ordered by the court”.
The father had no contact with one of the children between January 2019 and November 2020, the court was told. His barrister Charles Hale KC said the children now have a full relationship with both parents and are “thriving”. They spend good quality time with their mother on a regular basis at weekends and in the school holidays, according to Davies’ judgment.
“It is inconceivable that reopening the facts because of the challenge to Miss Gill would make any significant legal or practical difference to the arrangements for these children,” said Hale.
The children’s current guardian expressed concerns about “certain facets of Gill’s involvement” in the case but ultimately rejected the mother’s grounds for appeal on the basis there was “no reason to think a rehearing of the issue will result in a different finding”.
McFarlane has asked the ACP-UK to provide further evidence to substantiate some of its claims and Gill will then have the chance to respond.
The hearing was on 26 October but it was only later the Observer received the full court documents. The appeal will resume on a date yet to be set.
