Unregistered experts in family proceedings: Re C (“parental alienation”: instruction of expert) [2023] EWHC 345 (Fam)
Introduction
This anticipated judgment from the President of the Family Division provides guidance in relation to the instruction of unregistered experts.
Within the substantive proceedings, parental alienation had been found to have taken place and the President took the opportunity to comment on how the court should approach allegations of this nature.
Background
Proceedings were commenced in respect of the parties’ two children, aged 11 and 13, shortly after the parents separated in 2014. Final orders were made in 2015 and provided for the children to live with the mother and spend time with the father. In 2018, contact between the children and their father broke down, leading the mother to apply to suspend contact and the father to cross-apply to enforce the earlier order.
In March 2020, an order was made providing for substantive interim contact between the children and their father and provision for a child and adolescent psychiatrist or psychologist to be jointly instructed to:
- Consider the reasons and causes for the older child’s unwillingness to see or speak to her father and the younger child’s past unwillingness to do so;
- Assess the childrens’ emotional needs; and
- Inform the court as to the appropriate child arrangements which should be put in place.
It is worth noting that the order did not specify the required discipline for this expert as between psychologist and psychiatrist.
The parties jointly instructed Ms A shortly after the hearing. Her report concluded that the mother had alienated the children against the father, with the elder child now being severely alienated and the younger child being on the same trajectory. At an oral hearing shortly after this report was received, the court removed both children from the mother’s care and ordered that they were both to have limited contact with her pending final hearing.
At the final hearing in February 2021, HHJ Davies made a number of “significant” adverse findings against the mother in the context of parental alienation. Orders were made for both children to live with the father and, following a period of no contact to allow them to adjust to the change in arrangements, contact with the mother was to develop in a structured way. In reaching this decision, the judge considered three separate limbs, namely:
- Ms A’s evidence, which the judge considered and ultimately accepted.
- The evidence of the children’s guardian, whose independent view was that without significant change to the arrangements, the children’s negative view of their father would become entrenched, leading to long-term emotional harm.
- The judge’s own evaluation of the parents’ evidence, following which she found the mother to be neither reliable nor credible.
The mother applied for permission to appeal. Her grounds of appeal were in part based on a claim that the judge had not adequately considered her criticisms of Ms A, who she did not consider qualified to give expert evidence and who, as a result, should not have been relied upon. Permission was refused by Peel J on 1 September 2021.
In April 2022, the mother applied to re-open the issues that had been determined at the final hearing in June 2021 and issued a Part 25 application for permission to instruct a further expert, Professor Wang, in support of her position. In addition to being put forward as a proposed expert, Professor Wang sent an unsolicited letter to the court setting out his views about Ms A. This application to instruct Professor Wang was dismissed.
At the subsequent hearing to consider the mother’s application to re-open the findings, court applied the three stage test set out in Re E [2019] EWCA Civ 1447, and refused the application. In addition, relying on her own assessment of the case and on the recommendation of the guardian that the children needed a period of stability to settle into the arrangements, the judge imposed a s. 91(14) bar.
The court also ordered the mother to pay £20,000 towards the father’s costs of the application to re-open the findings. The judge gave a number of reasons for her decision to make this order, which included the fact that the application had no prospect of success, that the “new” matters raised were neither new nor relevant, that the mother was aware that costs were at issue (the father having raised it at the previous hearing) and that, considering all the circumstances of the case, it was not reasonable for the mother to take “another bite of the cherry.” She also took into account the effect that such an order would have on the mother’s opinion on the justice system and of the possible impact on the relationship between the parents before concluding that it was appropriate in the circumstances.
The appeal
The mother appealed against the decision not to re-open the findings on the basis that:
- The judge was wrong to determine the application without expert evidence as to Ms A’s qualifications;
- The judge was wrong to hold that there was no new evidence or information in a situation where communication from Professor Wang had been ignored, the judge had not commissioned a statement from the former guardian, and the judge failed to place weight on recent guidance issued;
- The judge failed to apply FPR 2010 PD25B properly by equating the Academy of Experts with bodies such as BPS and the ACP and by failing to have regard to the issue of public protection;
- The judge failed to have regard to the specific criticisms made of Ms A’s work in the present case; and
- The judge failed to have regard to the children’s proper interest in there being an investigation into the adequacy of the findings.
Permission to appeal was granted by Peel J, not due to any real prospect of success, but “for some other compelling reason;” that it was in the public interest for the court to consider the general approach to the instruction of unregulated psychologists as experts in the Family Court and to the specific approach taken to Ms A’s instruction in this case.
The court gave ACP permission to intervene on the limited basis that they were to “offer an independent analysis and account as to the core qualifications, skills and expertise required in order to be able to undertake an expert assessment in private law proceedings.”
Outcome of the appeal
Re-opening findings of fact
The court dismissed the application to re-open the findings.
The President stipulated that the guidance on which the mother sought to rely was just guidance, and it did not therefore render unqualified an individual who was previously thought to be qualified to act as an expert in this context.
In addition, the court held that the judge had been right not to place weight on the letter from Professor Wang. The application to instruct Professor Wang was dismissed, and the letter itself was not evidence within the proceedings. In such circumstances where a document was sent, unsolicited, to the court, placing reliance on it would have left the judge open to a charge of abuse of process. The mother sought to rely on reference to new “information” in Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285, which the President did not consider to take the mother’s case any further; the letter was nothing more than an expression of an opinion, regardless of how qualified the person holding that opinion might be considered to be.
In any event, the judge considered that the trial judge had had a perspective and insight into the case which was wholly different to that of the appeal court. She had made her own findings on the basis of the evidence, and had not relied unduly on the evidence of either the guardian or of Ms A. He considered the soundness of the findings made to be demonstrated in the initial decision by Peel J to refuse permission to appeal on the basis that the application was totally without merit.
The President held that, once the wider issues in relation to which permission had been granted had been dealt with, the judge’s initial decision remained “unopen to challenge” and this led the application to be dismissed.
- 91(14)
The mother also appealed the s. 91(14) order, asserting that it lacked proportionality in circumstances where there was no history of unmeritorious applications and that s. 91A had no application in circumstances where the judge did not find there to be a risk of harm to the children.
Dealing with the latter point first, the court held that the distinction made between “risk of harm” and “potential damage that will be caused” (which was the phrase used by the judge) was purely a semantic one and that it was clear that the judge was applying the provision. The President also noted that, following Re A (A Child: Supervised Contact) (s 91(14) Children Act 1989 Orders) [2021] EWCA 1749], there was no longer a need to establish exceptional circumstances when deploying s. 91(14).
Secondly, it was considered to be incorrect to say that there was no history of unmeritorious applications; the first attempt to appeal was held to be without merit and the subsequent application, which was the focus of this appeal, had been dismissed.
The court therefore held that there was no proper basis for challenging the s. 91(14) order as the judge had properly considered all the relevant factors in reaching his decision.
Costs
The costs order was also subject of the appeal. The skeleton argument on behalf of the mother submitted that her conduct had not been unreasonable, that even if it had been, a costs order should not automatically follow and that taken together with the s.91(14) order, the costs order would have a chilling effect on the mother’s ability to act in the best interests of the children going forward.
The court held that the costs appeal was “unarguable” and could only be dismissed. The President emphasised that the mother’s numerous attempts to appeal decisions constituted unreasonable conduct and noted that this was the first occasion on which the father had sought costs, in the context of long and protracted litigation.
Guidance on unregulated psychologists
Having dealt with the substantive appeal, the President considered the approach to unregulated psychologists in family proceedings.
He started by considering the “circular procedural definition” of an expert as someone who “provides expert evidence for use in proceedings.” This provides an element of flexibility and the question as to whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying the principles articulated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6.
While certain categories of psychologist (such as “clinical psychologist”) have protected titles, the generic label is not protected. The President deemed this “open-house” nature of the term to be “unhelpful and potentially confusing.” This was not considered to be a matter for the court. Instead, it falls to the psychological profession and ultimately Parliament to consider whether a stricter definition ought to be imposed. Therefore, the court must work within the current scheme and keep its eyes open to the need for clarity as to the expertise of any expert proposed.
To that end, when considering the matter of instruction of an expert, clarity as to the qualification and experience of a given expert is paramount. The President recommended that HCPC registration, or chartered status in the British Psychological Society provided a reliable method of authentication and that they could should identify this in each individual case. Where a proposed expert is unregistered, the court should look more carefully at the evidence for the purported expertise and may be assisted by a short statement from the proposed expert as to their expertise. In addition, it was considered sensible practice for the court to indicate in a short judgment why it is appropriate in any individual case to instruct an expert who is unregistered.
Parental Alienation
While he did not address the matter in detail, the President did take the opportunity to provide comment on parental alienation. He made clear that “parental alienation” represents a process of manipulating children against one parent using “alienating behaviours”. It is therefore a question of fact for the judge rather than a syndrome to be diagnosed.
The court sought to emphasise a particular passage from the ACP skeleton argument, stating that it deserved to be understood and accepted:
“‘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. For these purposes, 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.’
Thus, the focus of the court should be on identifying “alienating behaviours” and considering the impact that this behaviour may have had on the relationship between the child and his or her parent, rather than determining whether the label “parental alienation” would be appropriate.
Conclusion
This helpful judgment therefore provides guidance as to the approach to be taken by the court when instructing an expert and the potential difficulties that can arise when doing so. Furthermore, the President provides comment on the focus for the court when parental alienation is at issue and offers a worked example of two less common orders under the Children Act; s. 91(14) orders and costs orders.
Sophie Shardlow
