Parental Alienation and Unregulated Experts
Melissa Vaughan is a member of Oriel Chambers Family Team.
Here Melissa considers the recent judgment F v M (3): [2022] EWFC 89 and the need for greater transparency in the instruction of experts.
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Experts
The use of expert evidence is tightly regulated by the Family Court. A party will only be permitted to adduce such evidence where it is ‘necessary’ to assist the court to resolve the proceedings. In proceedings relating to children (including claims under Schedule 1 of the Children Act 1989), experts are only usually instructed once the court has given its permission to do so. However, in financial remedy proceedings the permission stage is engaged when a party seeks to adduce the evidence from the expert into the proceedings (i.e. permission is not normally needed to obtain the evidence, only to adduce it into the proceedings).
Parental Alienation
There is no commonly accepted definition of ‘parental alienation’. There is also debate as to the extent to which the concept should be medicalized and whether it is a psychological symptom/condition or ‘syndrome’. Cafcass currently work with the definition ‘when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’. In Re S (Parental Alienation: Cult) [2020] EWCA civ 558, Peter Jackson LJ endorsed the Cafcass definition and added that the manipulation need not be malicious or even deliberate.
A more useful focus is on the behaviours of the particular parent, in respect of the particular child, in each individual case. As is the case where domestic abuse is alleged, there should be a fact finding hearing to establish a factual matrix and the existence of alienating behaviours by a parent/whether a child has become alienated and this should take place promptly. It is crucial that a factual matrix is established by the court and not Cafcass or a jointly instructed expert.
Professionals who are called upon to advise the court in respect of welfare, including independent social workers, Cafcass officers, guardians and experts can come to conclusions and recommendations based on that factual basis established by the court. The court is then able to make welfare decisions based in ‘fact’.
F v M (3) [2022] EWFC 89
In this case the Judge determined that a jointly instructed expert can be named in a published judgment after the mother challenged the expert’s qualifications and conduct. This judgment raises questions about the regulation and instruction of psychological experts in the family cases where allegations of ‘parental alienation’ are made, the ability of parties to challenge expert evidence in the family court and issue of transparency.
The child in this case, are now aged 13 and 10. The proceedings commenced when they were around 5 and 3 years old. In 2014/2015 a Judge found that there had been coercive and controlling behaviour by the father towards the mother. Provision was made for the children to have contact with their father on alternative weekends and in the school holiday. Contact did not take place in line with the order and an enforcement application was brought by the father. The older child stopped attending contact in Summer 2018, despite attempts made by an independent social worker and the instruction of therapists and counsellors to work with the child. The youngest child stopped contact completely for a period in 2018 but the recommenced contact with father after a further order was made in October 2019.
As part of the father’s application to enforce contact in December 2019, the parties agreed the appointment of an expert. The expert set out her expertise in a CV which included parental alienation. The expert report was received in October 2020 and concluded that mother was alienating the children and made recommendations about where the children should live and how much time they should spend with their mother.
At final hearing, the mother’s legal team cross examined the expert and challenged her expertise, qualifications, and her professional and commercial links with numerous therapists. The Guardian also took her own independent enquiries (second proceedings) using the Cafcass Parental Alienation Toolkit. In June 2021, she was also cross examined by the mother’s barrister in relation to the Toolkit.
In June 2021, HHJ Davies found that the mother had alienated the children on the basis of the evidence provided by the expert, the guardian’s evidence and also an analysis of the credibility and reliability of the mother based on her evidence to the court.
Final orders were subsequently made in June 2021 and the children went to live with their father. Contact was limited with the mother for a short period of time after the move. The mother applied for permission to appeal.
The mother applied for the main hearing to be re-opened and for a re-hearing on the basis that the jointly instructed expert on parental alienation was not appropriately qualified and that too much weight has been attached to her report. The father opposed this application on the basis that this was fully explored as part of the final hearing.
In relation to the expert’s qualifications in this case, mother’s representative informed the court that the expert was not regulated and yet ‘attributes all of her work fell within the skill base of a clinical psychologist’. ‘Clinical psychologist’ is one of the nine protected titled that require regulation by the HCPC. Anybody who uses this title, must be registered with HCPC and this expert, in this case, did not qualify to register. The court heard how the expert had been investigated for using a protected title after claiming that she had been ‘trained in child forensic psychology’.
Ms Delahunty referred to a December 2021 statement by ACP UK that highlights that there have been several cases in which 'psychological experts' who are not HCPC registered have suggested 'inappropriate diagnoses' and made recommendations for children to be removed from their mothers based on these diagnoses. In documents filed with the Court, Ms Delahunty 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'.11 The mother's case was that the welfare decision to change the children's residence was heavily influenced by the expert report and Ms Delahunty argued that the expert had reported in 'circumstances where she was not and is not qualified to provide expert psychological evidence'. The judgment from June 2021 records that the expert had 'suggested various forms of therapy should be undertaken by each member of the family' and 'therapists have liaised with P who has drawn together the work they have been undertaking'.12
The judgment was handed down on 15 June 2022. The Judge's conclusions begin at paragraph 25. The Judge noted that the May 2022 guidance from the Family Justice Council (FJC) and BPS on psychologists as expert witnesses in the family courts, provides that it remains at the discretion of the Court to appoint individuals who are not eligible for chartered membership of the BPS or qualified for registration with HCPC in appropriate cases. The Judge comments, 'whether this is a good thing or not is not for me to determine'.
The Judge rejected the mother's application to reopen the Final Hearing. In respect of the expert, the Judge noted that her CV had been approved by all parties and the Court, she fulfilled the letter of instruction, and she fulfilled the role that was expected of her.
Challenging expert evidence in the Family Courts
This case raises questions about the ability of parties to challenge jointly instructed experts in the family justice system (FJS).
The mother had agreed to the instruction of this expert, she had ultimately disagreed with the expert's recommendations and whether she was qualified, and the only way she was able to challenge this expert's position was through cross-examination.
In the civil jurisdiction, where a party is dissatisfied with the report of a single joint expert for reasons that are not 'fanciful', they can apply to the Court to try and persuade the Judge that there is good reason why they should have permission to get an independent expert.
Is it right that there is no similar mechanism within the family justice system? If an expert is not regulated for example, there is no way of holding them to account for any potential misconduct.
A parent may have been unrepresented when they agreed to the instruction of a particular expert. These expert reports can be the basis for high stakes decisions that children should leave home or move from one parent to another. An inter-disciplinary and policy level consideration of this issue may be needed.
This limited ability to challenge experts once instructed reinforces the need for all parties to undertake in-depth vetting of experts before they are chosen and instructed, with greater awareness of what they are looking for in terms of registration with particular bodies, qualifications and experience.
Transparency
This hearing was attended by a freelance journalist, Ms Hannah Summers, and Mr Brian Farmer from the Press Association. Ms Summers sought permission to have access to the skeleton arguments of the parties and wanted to report on the issues in the case, in particular the issues relating to the appointment of expert witnesses in cases where parental alienation is raised (including in particular, the identity of the expert and names of the therapists involved). Guidance states that expert witnesses should be named unless there are compelling reasons why they should not.
In October 2021, Mr Farmer was blocked from naming an expert, X, who was replaced after a mother complained about their qualifications. Mr Farmer argued that publication of X's name was in the public interest. He said parents had a right to know the decision that was made in this case, and if a parent has concerns about this expert, they ought to be able to read about this decision. He said most parents assume that all experts are regulated and would be surprised to learn they are not.
The Judge determined that the expert could be named in this judgment. It is clearly important that the correctly qualified expert is identified and instructed in parental alienation cases and greater transparency in respect of expert instruction will make it easier for parties to make informed and appropriate decisions when choosing an expert.
Postscript
The mother's appeal was heard by Sir Andrew McFarlane, the President of the Family Division of the High Court of England and Wales. Barbara Mills KC, representing an intervenor in the case, submitted that the Family Court should not ordinarily permit the instruction of 'experts who purport to be 'experts in alienation'' in cases relating to decisions around child welfare, on the basis that such experts 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'. Mills KC said Melanie Gill was 'neither regulated nor chartered'. The mother's barrister, argued that Gill, as an unregulated psychologist, is a 'risk to the public' and that psychologists are regulated to protect the public. Court appointed experts occupy a 'powerful space', asserting that Gill's report led to life-changing decisions for the children who now live with their father.
It was argued on behalf of Gill, that she was an 'expert' and did not need to be 'regulated' to advise the court in the way that she did. Parliament could have legislated to prohibit the instruction of non-regulated psychologists, but it has not done so. He submitted that strict rules on regulation would only further reduce the 'very small' pool of experts willing to assist in high conflict private law cases, with fewer experts exacerbating the already severe delays.
The appeal on the substantive issue was dismissed. The President said HHJ Davies' findings were not based solely on Gill's report, but also on her view of the totality of the evidence, including the mother's evidence. The President indicated that the forthcoming judgement will 'look at the bigger picture' and offer further guidance on the instruction of court-appointed experts. The President encouraged 'taking more time at an earlier stage' to select an expert with 'eyes wide open', emphasising the value of vigorously vetting experts before instruction to avoid such a situation.
The judgment will be handed down at a later date.
