Top judge to lead review of issues connected to parental alienation cases

President of the Family Division Sir Andrew McFarlane is to lead a review of the regulation and legitimacy of court-appointed experts in particular where they are connected to allegations of parental alienation.

This comes after a high-profile case – which was reported in national news – saw a mother lose custody of her child after the count appointed an expert, Melanie Gill, who assessed the family’s dynamics and ordered the children to be permanently removed from their mother’s custody.

The mother alleged that the expert was “not appropriately qualified”, yet Judge Lindsay Davies refused to grant a re-hearing of her case.

However, high court judge Mr Justice Peel since granted her an appeal – and subsequently directed Sir Andrew McFarlane to oversee the appeal and to consider the “appropriateness or otherwise of instructing unregulated psychologists as experts in family proceedings concerning children, and in particular in cases where parental alienation may arise”.

Specifically, Mr Justice Peel asked MacFarlane to consider whether it had been appropriate to instruct Gill in circumstances where she “has no recognised substantial postgraduate qualifications, is not registered as a practitioner psychologist, is not subject to professional regulation”, adding that the President of Association of Clinical Psychologists said “she should not be acting as an expert in court proceedings”.

McFarlane issued a memorandum in October last year, Experts in the Family Courts, which said “pseudo-science which is not based on any established body of knowledge will be inadmissible in the family court”.

Samantha Newton and Sue Ellingham, both Senior Associates in Ashfords’ Family Team, commented on the discourse surrounding parental alienation:

“The Family Court has a positive duty in private Children Act proceedings to promote contact between a child and their non-resident parent unless it is not in the child’s best interest to do so.

The court is entitled to the best evidence available to determine why a child is resistant to contact. It is unusual for a child to actively reject a parent and therefore the court needs to understand what is going on.

In some cases, an expert’s opinion is required to identify if the actions of one parent or the child’s resistance is due to parental alienation.

A formal application is made to ask the court for permission to instruct expert. This application includes information about the type of expert, why such an expert is necessary and why the professional(s) already involved i.e. Cafcass, do not have the relevant expertise.

The court requires the proposed expert’s relevant experience by way of their CV, the time it will take for the proposed expert to complete the work (as it is in the child(ren)’s best interest that there is no unnecessary delay), and the cost (and who will pay for it) so that the court can make an informed decision on whether to appoint a court expert.

It is essential that the expert has the relevant expertise to give opinion and recommendations to the court otherwise final orders made are at risk of being set aside if the foundation upon which the order was made will be unsound.

Guidance upon the standards needed for a relevant court expert, to include a current registry of suitably qualified experts in this field, will assist the courts and professionals in ensuring that experts do have the necessary expertise in parental alienation cases.”