Courts, not experts, must determine whether parental alienation exists in any case

Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150

Once again the issue of parental alienation is back before our family courts. In the case of Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150, was very clear that parental alienation must be a question of fact to be determined by the court rather than a diagnosis offered by an expert.

Family practitioners will all be acutely aware that expert evidence, where necessary, is often vital evidence before the court. There can be times when the view of the expert can overreach the parameters that have been, or should have been, set.

In this case, the Mother appealed an earlier decision to permit expert evidence in private law children proceedings. This order permitted a psychological assessment of the parents and the children, following an allegation by the Father that the mother had been alienating the children.

A previous psychological assessment of the parents had been completed as well as both a section 7 report and a section 17 assessment from CAFCASS. In addition, to these reports there were two further addendum reports that had been completed by CAFCASS. The appointed Guardian applied for further expert evidence to be brought into the case given the concerns of the Father regarding parental alienation.

The Appeal Judge, noted the President’s comments in Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam), where he stressed that the decision about whether a parent has alienated a child is a question of fact for the court to resolve, not a diagnosis to be offered by a psychologist.

As all family law practitioners will be aware, parental alienation is “a process of manipulation” perpetrated through “alienating behaviours” and is a question of fact. It was held that the court had asked the expert to address several inappropriate questions, including the attitude of the parents towards each other (a question of fact for the court to determine) and an opinion about whether parental alienation had occurred (outside the expert’s remit). It is the court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert.

This case also serves as a timely reminder that any order authorising expert evidence should only be made where “necessary” to assist the court to resolve the proceedings justly (section 13(6), Children and Families Act 2014 (CFA 2014)). Such expert evidence will only be “necessary” where it is demanded by the contested issues, rather than being merely reasonable, desirable or of assistance (Re H-L (A Child) [2013] EWCA Civ 655).

In this case, there was no judgment from the lower court addressing whether expert evidence was necessary. A judgment providing reasons for rejecting one party’s submissions or preferring the submissions of another party was fundamental to the court’s duty to deal with the case justly. The judge gave no reasons addressing the test of necessity, in circumstances where there was existing expert evidence, and no facts had been found by the court on the disputed issue of parental alienation. The decision was wrong, and the order was set aside. The application for expert evidence was remitted for rehearing.

It is important that careful consideration is given as to why any expert evidence is necessary and even when this is the case, the same care must be given to what the expert is being asked to report on.

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