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The use of experts in private children law family disputes involving allegations of parental alienation

Editors PickThe use of experts in private children law family disputes involving allegations of parental alienation

By Frankie Shama, barrister, 4PB, London

Parental alienation has been defined by the Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 as “when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.” The manipulation can of the child by their parent “need not be malicious or even deliberate”; the Court of Appeal has clarified that “[i]t is the process that matters, not the motive.”

This express acceptance of parental alienation as a concept by the Court of Appeal has not been without controversy. The issue continues to attract live and polarising debate. On the one hand are those who argue that allegations of parental alienation goes towards silencing the voices of women and children resisting contact with abusive men, and obscures the issue of domestic abuse. On the other are those who regard parental alienation itself as an abusive and harmful act with coercive control of the alienated parent at its core.

The debate more recently however has focused in particular on the issue of experts in private children proceedings involving allegations of alienation – their necessity, their role, and their regulation. In a case which has received much press attention, Sir Andrew McFarlane, the President of the Family Division, has recently been considering a mother’s application to re-open a fact-finding hearing where findings of parental alienation was made. The arguments before the President have partly considered the role of an agreed and court appointed psychologist, including her qualifications and expertise. The President, at the second day of the hearing on 6 December, dismissed the mother’s substantive appeal. It is anticipated that full judgment will be handed down in early 2023, and may give further comment on the instruction of experts in these sorts of proceedings, and generally. Furthermore, the Family Justice Council (FJC), which published interim guidance on expert witnesses in cases where there are allegations of alienating behaviours in May 2022[1], is due to issue full guidance sometime in 2023 too.

This article will not anticipate the conclusions of either. Instead, it is designed to give practitioners a current summary of the procedural requirements which will need to be satisfied in the instruction of experts; some of the circumstances an expert may be necessary, and some things to be mindful of given the uncertainties which exist in the current landscape.

Procedural requirements for the instruction of an expert

When seeking to instruct an expert within family proceedings, all practitioners must of course have regard to the Family Procedure Rules 2010, and in particular Part 25. The rules are the legal foundation for expert witnesses and their compliance for both practitioners and witnesses is mandatory.

Express permission is required to put expert evidence (in any form) before the court (rule 25.4(2)), and such permission will not be given unless “the court is of the opinion that the expert evidence is necessary to resolve proceedings justly” (rule 25.4(3)).

Practice Direction 25B sets out the duties of an expert, and make clear that “the expert’s overriding duty to the court takes precedence over any obligation to the person from whom the expert has received instructions or by whom the expert is paid” (3.1), and sets out the expert’s particular duties (4.1). This includes, but is not limited to, providing an independent opinion (4.1(d)) and confining their opinion to matters material to issues in the case and in relation only to the questions that are within their expertise (4.1(e)). Importantly, it requires experts to provide advice to the court which conforms to the best practice of their profession (4.1(b)). This latter duty requires an expert to comply with the Standards set out in the Annex to PD 25B, which includes a requirement to have been active in the area of work; to have sufficient experience of issues; to have familiarity with the breadth of current practice or opinion; are up to date with CPD; have received appropriate training on the role of an expert in the family courts, and if the professional practice is regulated by a UK statutory body that they are in possession of a current licence.

Whilst statutory regulation for psychology in the UK was introduced in 2009, this was only for psychologists with ‘protected’ titles. There are seven protected titles for practitioner psychologists who are regulated by the Health and Care Professions Council (HCPC).[2] It remains a criminal offence to use any protected title to which they are not entitled. In addition, academic psychologists can be chartered by the British Psychological Society (BPS), and only they are able to use the title ‘Chartered Psychologist.’ The title ‘psychologist’ however itself is not a protected title in and of itself, and does not require regulation by the HCPC. Psychologists, as well as experts in other areas, can therefore be unregulated. There is not therefore any prohibition on the instruction of unregulated experts under the rules, insofar a they are to meet the requirements under the rules and PD 25B.

Necessity of an expert

There are a number of reasons the court may determine it needs the assistance of an expert in proceedings involving allegations of alienation.

It may be deemed necessary to instruct a psychologist for expertise on individual and/or collective psychological profiles of different family members, and their impact on key issues and decisions for the court. Some recent examples include:

  1. In Re A and B (Parental Alienation: No. 1) [2020] EWHC 3366 (Fam), the court relied upon the evidence of a number of experts, including a psychologist, psychiatrist and psychotherapist. Such evidence was decisive in providing an insight into the children’s presentation, mental health and emotional development and behaviours, including how these differed between the children. In addition, these experts were able to comment upon the potential consequences for the children in the long-term if the status quo were to continue, and provide an insight into the family dynamics generally and the alienating parent’s motivation to change. Finally, these experts were crucial in providing recommendations to the court in respect of how to progress the children’s relationship with their father.
  2. In Re T (Parental Alienation) [2019] EWHC 3854 (Fam), the court had evidence from a chartered consultant psychologist and clinical psychologist in addition to the social worker and child’s guardian. This evidence was decisive to the findings made by the judge. The clinical psychologist provided evidence in respect of how ‘torn’ the child was between her parents. She had observed that in play the child had talked about wanting to destroy or crush the father, and acted aggressively towards the ‘doll daddy,’ wanting to stamp on him and showing the child and mummy doll standing on his face. She concluded that the child’s behaviour and anxieties were a result of her attachment to her mother, and her mother’s difficulties supporting contact with the father. Perhaps most strikingly, the clinical psychologist discussed the long-term consequences for the child – achieving inconsistent empathy from her mother had impacted the child’s attachment with the father, and could have an impact on her ability to form relationships and mental health in the long-term. The clinical psychologist concluded the mother had limited capacity to change and long-term therapy was needed to address her issues. The social worker and child’s guardian supported a recommendation for a transfer to the father’s care.

It should be noted that whilst the expert is not the finder of facts, and it is the court’s role to determine if the child has been alienated if alleged, their evidence can prove crucial in informing the factual determinations, as well as of course the welfare outcome for the child going forwards – whether that is a transfer of living arrangements; a change in contact arrangements; further therapeutic work, etc.

Top tips

Ensure the expert has relevant expertise

The President has expressed in a speech at the Jersey International Family Law Conference 2021 that: “Where the issue of parental alienation is raised and it is suggested that an expert should be instructed, the court must be careful only to authorise such instruction where the individual expert has relevant expertise.”[3] This is echoed too in the President’s recent general memorandum on experts in the family court, which makes clear that “the court will refuse to authorise or admit the evidence of an expert whose methodology is not based on any established body of knowledge.”[4]

Before agreeing to an expert therefore, in accordance with the rules and PD 25B, it is essential to request their CV and, if necessary, ask further questions about their expertise and ability to answer the proposed questions.

Dealing with unregulated experts

In this event, an unregulated expert is proposed, it is all the more essential to ensure that all parties and the court is aware of the expert’s unregulated status; and that it is made clear how they meet the requirements of PD 25B. Whilst this is not to suggest there is a higher threshold for proving expertise, it is suggested that ensuring this is clearly explored between parties and with the Judge will avoid problems arising at a later stage in the event one party seeks to argue they should not have been instructed due to their unregulated status.

Letters of instruction

Any letter of instruction must be carefully worded to identify the issues and preserve the independence and integrity of the assessment. This may include, for example, clarifying that there should be no variation of the terms of the instructions between the assessor and any party without the revisions being considered by the court on notice to all.

Conflicts of interest

The FJC’s interim guidance has emphasised the importance of the court being alert to possible conflicts of interest, in particular where an expert recommends an intervention or therapy that they or an associate would benefit financially from delivering. The interim guidance recommends close scrutiny of such work. The court should actively consider, before further work is ordered with the appointed expert who has assessed within the proceedings, or someone with a related financial interest, whether the court should endorse this approach and whether it has scrutinised all available options.

Frankie Shama is a barrister a 4PB in London specialising in Family Law. He is the co-author of ‘A Practical Guide to Parental Alienation in Private and Public Law Children Cases’, Law Brief Publishing (2022).

 

[1] Family Justice Council, ‘Interim Guidance in relation to expert witnesses in cases where there are allegations of alienating behaviours – conflicts of interest’, May 2022

[2] There are seven protected titles in total: Clinical Psychologist, Health Psychologist, Counselling Psychologist, Educational Psychologist, Occupational Psychologist, Sport and Exercise Psychologist, and Forensic Psychologist. In addition, two generic titles – Practitioner Psychologist and Registered Psychologist – are available to registrants who already hold one of the seven ‘specialist’ titles.

[3] Sir Andrew McFarlane, ‘Speech by the President of the Family Division: Supporting Families in Conflict – There is a better way’, Jersey International Family Law Conference 2021, page 13

[4] Sir Andrew McFarlane, ‘President’s Memorandum: Experts in the Family Court’, 4 October 2021

 

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