One of Britain’s most senior judges is to examine issues relating to the regulation of court-appointed experts who provide evidence about child welfare in private custody hearings – and, in particular, where “parental alienation” is a feature.
Sir Andrew McFarlane, the president of the family division of the high court, will oversee an appeal later this month brought by a mother who challenged the qualifications of a court-appointed expert who found she had “alienated” her children from their father.
The mother, who had her children permanently removed from her care against their wishes, alleged Melanie Gill was “not an appropriately qualified expert” and not regulated by any professional body.
Judge Lindsay Davies, who had previously accepted Gill’s assessment of the family dynamics, refused to order a re-hearing of the woman’s case earlier this year at a court in Peterborough – a decision she appealed against.
However, a high court judge who oversaw a permission to appeal hearing recently concluded the mother has an arguable case, directing MacFarlane to oversee her appeal and to consider the wider issues relating to the regulation of experts.
The only psychologists subject to statutory regulation in the UK are those registered with the Health and Care Professionals Council (HCPC), although experts who do not qualify for registration can still be appointed at the discretion of the courts.
Mr Justice Peel said it was in the public interest for MacFarlane, the most senior family court judge in England, 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”.
The concept of ‘parental alienation’ – the idea that unjustified resistance or hostility from a child towards one parent is a result of psychological manipulation by the other – has become a hotly disputed issue in family court proceedings.
Peel outlined the terms of reference for the appeal to be heard on 26 October in the Family Division of the high court in London and gave detail about Gill in a written case order.
In relation to the mother’s case, he said MacFarlane should 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” and that it was the opinion of the President of Association of Clinical Psychologists that “she should not be acting as an expert in court proceedings”.
In her judgment, Davies said all the parties had agreed on Gill, who was selected for her extensive experience in ‘parental alienation’ cases. Davies made no criticism of Gill and the court made no findings that discredited her. But when Davies dismissed the mother’s application to reopen the hearing she said that guidance from a judicial head would assist judges.
She suggested, in a ruling published during the summer, that guidance on the definition of “a psychologist” might help avoid arguments over experts.
The Observer won an application to name Gill after making a series of submissions to the family court.
The children at the centre of the case had lived with their mother after their parents separated. Davies said another judge had found there had been “coercive and controlling behaviour on the part of the father”.
But she subsequently ruled the children should move from their mother’s care and live with their father after accepting Gill’s conclusion about “alienation” and hearing other evidence that led her to her decision.
In October 2021 a woman involved in a separate case called upon MacFarlane to establish whether a psychologist she had concerns about was properly regulated.
The woman, who was involved in a private family court dispute with her estranged husband over their children, won a fight to have the psychologist – who had been appointed by a judge to carry out a family assessment – discharged from the case.
The judge ruled another expert should be appointed instead after considering the issue at a hearing in Croydon, south London.
District Judge Delia Coonan, who ruled the expert should not be named in any press reports, did not make any findings about the psychologist when delivering a ruling.
Around the same time, in October last year, McFarlane issued a memorandum, Experts in the Family Courts, which noted that “pseudo-science which is not based on any established body of knowledge will be inadmissible in the family court”.
He referred back to the memo in a speech the same month: “Where the issue of parental alienation is raised and it is suggested to the court that an expert should be instructed, the court must be careful only to authorise such instruction where the individual expert has the relevant expertise,” he said.
