A recent Court of Appeal hearing before Judge Middleton-Roy, [Re GB (2023)], on the proper use of expert psychological assessments and testimony with regards to claims of parental alienation has been upheld.
Earlier this year, the President of the Family Division, Sir Andrew MacFarlane, suggested parental alienation was not a diagnosable psychological condition but rather a question of fact which the Court was fully capable of finding itself. Last month’s Court of Appeal hearing has used that guidance to uphold an appeal after a District Judge ordered a psychological assessment for parental alienation. Both parents and two children, aged twelve and nine, were to be part of that assessment, which was requested by the Children’s Guardian.
The appellant, the mother, claimed the Judge was wrong to order the assessment as it would “invite the expert to determine the factual matrix of disputed allegations” which was “contrary to the President’s decision”. Furthermore, the appellant claimed the Judge made the order “without considering the test of necessity” and “failed to give any reasons for [the] assessment”.
Submission from the ACP-UK in Re C (Parental Alienation: Instruction of Expert) 2023 EWHC 345 (Fam) March 2023 is absolutely clear. View the full judgment [here].
“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. 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.” - ACP-UK
MacFarlane calls the suggestion that parental alienation may be a diagnosable syndrome as “unhelpful” and emphasises that it is both the parents’ behaviour and the impact that has had on the child which is truly paramount.
The inviting of an expert into this issue is problematic. The role of psychological experts in Court should be to provide contextual and knowledgeable insight of mental health or behaviours, for example regarding trauma or personality disorders. But, in the case of parental alienation it unfortunately just makes things less clear as the expert is essentially being asked to make the decision instead of the Court. At the original hearing, the expert was directly asked “to provide an opinion about parental alienation”, and this is to be considered “outside of the expert’s remit”. It is for the Court to decide.
“Domestic abuse cases will often see counter allegations of parental alienation, which can make an already complicated case more difficult to navigate. This case highlights the importance of ensuring that instructed experts do not offer opinion on parental alienation and that it will remain a matter for factual determination by the family court.” – Kirsty Richards, Head of Family Law, NLS
The appeal was upheld on all three grounds, as the lower Court judge was also found to have not considered the test of necessity or “the potential harm to the children [by] exposing them to another professional”. It was also the lack of a judgment which particularly supported the appeal.
“I reject the submission that the Judge’s reasons can be implied or read holistically. There was no determination by the lower Court on the key issue in dispute. The omission of a judgment is significant. A judgment providing reasons [is] a fundamental aspect of the Court’s duty.” – Judge Middleton-Roy
Judge Middleton-Roy is clear that reasons must be provided, from both judges and all officers of the court, for the involvement of experts or assessments. You can view the full judgment [here].
