Private Law
February 2023

Overview: Sir Andrew McFarlane P dismisses an appeal against a judge’s refusal to reopen findings of fact and gives guidance about instruction of unregulated psychologists as experts in family proceedings where there is an allegation of parental alienation. The appeal also challenges the judge's decisions, firstly, to impose a restriction on further applications under Children Act 1989, s 91(14) ['CA 1989'] and, secondly, to order the mother to pay costs.

The Background: The proceedings relate to two children aged 13 and 11 years old. Proceedings under CA 1989 were commenced almost immediately following parental separation in 2014. Final orders were made in 2015 authorising the children's mother to relocate within England and Wales on the basis that the children would live with her but spend time with their father. Contact between the children and their father broke down in late 2018 leading to cross applications to suspend contact and to enforce the earlier order. The children were joined as parties and a children's guardian was appointed.

In March 2020, the father made an application pursuant to Part 25 Family Proceedings Rules 2010 for the instruction of a Child and Adolescent Psychiatrist or child psychologist. The mother and the Guardian agreed that the instruction of an expert was necessary. Ms [A], a psychologist, was jointly instructed on behalf of all parties to undertake an assessment of the family. Ms A undertook her work in the summer of 2020. Her report, which was filed on 12 October 2020, was plainly influential. She concluded that the children had been alienated against their father by their mother. She considered that the eldest child showed signs of being a severely alienated child and that her younger sibling was on the same trajectory.

At a hearing on 16 October, HHJ Davies ordered the removal of the children from their mother's care and directed that there should be no contact between mother and children pending a fuller hearing on 29 and 30 October. On 30 October, having heard oral evidence from Ms A, the judge ordered that the eldest child should weekly-board at her school and have her home base with her aunt and the youngest child should live with the father. Limited contact was afforded to the mother pending the final hearing.

The final hearing concluded in June 2021. The judge concluded that the mother's evidence was neither reliable nor credible, in contrast to that of the father, and the judge made a number of significant adverse findings about the mother's behaviour in the context of potential alienation. Secondly, the judge weighed up, and ultimately accepted, Ms A's conclusion that both children had been influenced and encouraged by their mother to think very negatively of their father and that this had caused significant emotional damage to them. The judge, therefore, made orders for both children to live with their father and, after a period of suspension to allow for settling in, contact with their mother was to develop in a structured manner.

The mother applied for permission to appeal the fact-finding part of the judgment. Permission to appeal was refused by Peel J on 1 September on the basis that the application was 'totally without merit'.

On 20 April 2022, the mother issued an application under FPR 2010, Part 25 for permission to instruct an expert in support of her application for the June 2021 findings to be reopened. The sole focus of the expert's instruction was to advise upon the professional and/or clinical qualifications of Ms A to undertake the assessment of adults and/or children in the manner sought by Ms A's instructions. The expert to be instructed was Professor Wang, a clinical psychologist who is the chair of the ACP. The Part 25 application was dismissed.

The mother's application for the findings to be reopened was heard on 7 June 2022 and judgment was delivered on 15 June. The judge summarised the findings that she had made and stressed that they had been based upon three separate limbs, namely the evidence of Ms A, the evidence of the guardian and, thirdly, the judge's own evaluation of the parents' evidence. The judge went on to make an order under CA 1989, s 91(14) imposing a filter on further applications until June 2025. Finally, following consideration on paper of an application for costs made by the father, on 15 July 2022 the judge directed that the mother must contribute £20,000 towards the father's costs of the application to reopen the findings.

The Appeal: The mother appealed against all three of the June 2022 decisions, contending that Ms A was unqualified and should never have been instructed. It was submitted on behalf of the mother that there was 'new information' which cast doubt on Ms A's qualifications and her ability to report in this case. The new information consisted of:

• The memorandum from the President of the Family Division (PFD) issued on 4 October 2021 on ‘Experts in the Family Court’;

• A quotation from a speech given by PFD in Jersey on 8 October 2021;

• Guidance issued by the ACP in December 2021;

• Guidance issued jointly by the Family Justice Council [‘FJC’] and the BPS.

Permission to appeal was granted by Peel J on 15 July 2022, not because the proposed appeal had a real prospect of success, but 'for some other compelling reason', namely that it was in the public interest for the court to consider the instruction of unregulated psychologists as experts in the Family Court, in general, and Ms A's instruction and role in this case, in particular.

Submissions on behalf of ACP-UK: The ACP-UK is a representative professional body for clinical psychologists. ACP applied to intervene in this appeal.

It is at the core of the mother's case on appeal, the ACP submissions and, indeed, Prof Wang's letter, that Ms A is 'unqualified' to call herself a 'psychologist', to conduct a psychological assessment, to act as an expert in the Family Court and, in particular, to discharge the specific instructions given to her in the present case. The principal element of the ACP's patchwork is that only practitioner psychologists who are registered with the HCPC, which is given statutory responsibility for the regulation of practitioner psychologists, may use the following 'protected titles':

• Clinical Psychologist

• Counselling Psychologist

• Educational Psychologist

• Forensic Psychologist

• Health Psychologist

• Occupational Psychologist

• Sport and Exercise Psychologist

• Registered Psychologist

• Practitioner Psychologist.

A psychologist may be a 'chartered psychologist', which is a grade of membership of the BPS only open to those with certain post-graduate qualifications and who have been vetted by the BPS.

Difficulty arises, however, from the fact that the title 'psychologist' is not, of itself, regulated or protected.

The Mother's Appeal on Reopening: Conclusion: The single issue upon which the appeal is based is that relating to Ms A's qualification to undertake the role of expert assigned to her in this case. It was held that the judge was correct not to admit Prof Wang's letter as evidence and was right not to permit his instruction as an expert.

It was submitted on behalf of the mother that the fact that Prof Wang's letter was not admitted into evidence, and permission to instruct him as an expert had been refused, did not mean that the judge was entitled to ignore it. In support counsel relied upon the well-known distillation of the approach to reopening previously determined facts described by Hale J (as she then was) in Re B (Children Act Proceedings) (Issue Estoppel) [1997] 1 FLR 285.

Sir Andrew McFarlane concluded that “A letter restating an assertion that had been four-square before the court at the original hearing, namely that Ms A was not qualified, no matter how apparently authoritative the source may be, is not of the same quality as fresh factual information. It is an opinion. In addition, Hale J's formulation is descriptive as opposed to prescriptive; a court is not obliged to take account of every piece of new 'information’ but may do so. In the circumstances, reference to 'information' in Re B does not take the Appellant's case any further”.

Sir Andrew McFarlane P determined that “it would be wholly wrong for this court to embark upon a contest on the issue of Ms A's qualifications played out solely through counsel's submissions between two parties who are both interveners in the appeal process. In the absence of some bright-line provision which, without debate and unambiguously, establishes that Ms A was not qualified to undertake instruction as the psychological expert in these proceedings, this appeal process is simply inapt to determine the issue. It would be neither possible nor, indeed, fair, for the court effectively to determine Ms A's fitness to practice as she has been doing for some years by trial by submission alone”.

Sir Andrew McFarlane P was clear that the appeal should be dismissed not solely because of the negative conclusion that he had formed about “the proposed assault on Ms A's qualification. In any appeal of this nature, it is necessary for the court not only to keep in focus the specific criticisms that are being made of the judge below, but also to maintain the whole of the original fact-finding judgment in view at all times. The primary focus is on the decision whether or not to reopen the fact finding decision, consideration of Ms A's qualifications is but one part of the overall determination”.

Un-regulated psychologists as experts in the Family Court: Guidance: From the perspective of the court, and it may be from a wider public perspective, the open-house nature of the term 'psychologist' is unhelpful and potentially confusing. It is, however, a matter for the psychological profession and, ultimately, Parliament, whether a tighter regime should be imposed.

The court must, therefore, work with the current, potentially confusing, scheme, but must do so with its eyes wide open to the need for clarity over the expertise of those who present as a psychologist, but who are neither registered nor chartered.

In every case the court should identify whether a proposed expert is HCPC registered. A sensible practice, where the expert is un-registered, is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.

Parental Alienation: Sir Andrew McFarlane P added “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.'”

Sir Andrew McFarlane P highlights that “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.”

Appeal against CA 1989, s 91(14) order: Sir Andrew McFarlane P concluded that “In all the circumstances this aspect of the appeal has no arguable basis and must also fail”.

Costs Appeal: Sir Andrew McFarlane P concluded that “having reviewed this case in detail, it is not possible to fault the judge's approach on the question of costs. In circumstances where the first appeal had failed on the basis that it was 'totally without merit', and a second attempt to overturn the findings of fact based largely upon subsequent guidance, rather than anything of more substance, had failed, the judge was fully entitled to hold that the mother's conduct was not reasonable. Whether those words were used in the substantive judgment or not, the reality is that the application to reopen did not enjoy any prospect of success. In terms of proportionality, it is relevant that this was the first occasion on which the father had sought costs. Whilst the cumulative impact of the judge's findings and orders will have been a substantial blow to the mother, by failing, without good reason (as Peel J, HHJ Davies and I have now held), to accept those findings but instead seek to overturn them, she had brought the making of those orders upon herself”.