On 21 February 2023 the President of the Family Division handed down judgment in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). Andrew Bagchi KC, Jessica Lee and Luke Eaton appeared for the expert. 

In this case the mother sought to appeal a Judge’s refusal to reopen findings of fact that had been made in 2021. The mother (and, latterly, the Association of Clinical Psychologists) sought to argue that the expert instructed in the proceedings should never have been instructed as they were unqualified to give expert evidence on the issues raised in their instructions. As such the judgment focuses on an issue of general importance, namely the instruction of experts in proceedings where there is an allegation of parental alienation. 

Within the judgment the President considers whether there is any definition of an ‘expert’ in the context of family proceedings, and the definition of a ‘psychologist’. From paragraph 86 the President draws together the recent guidance in respect of unregulated psychologists. In particular, the President notes that there is a need for rigour during the process of identifying and approving an expert for instruction in family proceedings. The President indicated that work should be done to assist parties and the Court at the initial stage of choosing an expert by establishing a template into which the basic qualifications of any ‘psychologist’ should be entered (see paragraph 102). 

In respect of the term ‘parental alienation’, at paragraph 103 the President notes:

“Before leaving this part of the appeal, one particular paragraph in the ACP skeleton argument deserves to be widely understood and, I would strongly urge, 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.’ 

It is not the purpose of this judgment to go further into the topic of alienation. Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.” 

From paragraph 52 of the judgment, the President comments upon the unhelpful approach taken by intervenors, namely the Association of Clinical Psychologists. The judgment will be of interest for all practitioners who represent intervenors at an appellate level. 

Having considered the various issues, the President dismissed the appeal and upheld the decision of the Judge at first instance.