Re C (Parental Alienation: Instruction of Expert)  EWHC 345 (Fam): An Analysis
Ian McArdle analyses a widely anticipated judgment on the issue of instruction of experts, and in particular the instruction of experts in proceedings where there is an allegation of parental alienation.
On 21st February 2023, the President of the Family Division handed down a widely anticipated judgment on the issue of instruction of experts, and in particular the instruction of experts in proceedings where there is an allegation of parental alienation. The particular focus of this judgment is not on the issue of parental alienation itself but rather for the Court to consider the instruction of unregulated psychologists as experts in the Family Court in general.
It is a much-anticipated decision by the President of the Family Division and one that attracted press scrutiny with a number of articles in the national press about this particular case in which the name of the expert in question was published.
I must say from the outset that the President does not embark upon an extensive consideration of the issue of parental alienation; his comments on this issue are limited to one paragraph in which he endorses what the Association of Clinical Psychologists UK say:
“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.”
The President seeks to draw together the key points from recent guidance given in a number of forums and drawing upon guidance given by the ACP. In giving guidance as to the use of unregulated experts, the following key points emerge:
- There is no definition of an ‘expert’ in Family proceedings beyond an ‘expert means a person who provides expert evidence for use in proceedings.’
- There are some statutory exceptions to the term ‘expert’ in section 13(8) Children and Families Act 2014.
- Expert evidence in proceedings concerning children will only be permitted when the Court is satisfied that the expert evidence is necessary to assist the Court to resolve the proceedings justly.
- Expert opinion will only be admissible ‘on any relevant matter on which he is qualified to give expert evidence.’ It is noteworthy that there is no definition of ‘qualified’ in the relevant Act.
- The instruction and role of experts in the Family Court is already the subject of extensive coverage in the Family Procedure Rules 2010.
- Whilst certain categories of psychologist have a protected title (a clinical psychologist being offered as one example), the generic title of psychologist is not protected and may be used by an individual regardless of their regulatory status.
The Court has accepted that the use of ‘psychologist’ as a generic term is unhelpful and potentially confusing but cautions and highlights the need for eyes to be wide open as to the need for clarity over the expertise of those who present as a psychologist.
The Court expresses the view that experts’ CVs should be well structured in order to transmit information ‘crisply and clearly.’ In the event that a potential expert is un-registered, the Court considers it incumbent upon that potential expert to summarise clearly, for the Court’s benefit, their expertise.
The Court concluded that it was not its role to prohibit the instruction of any unregulated psychologist. The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court.
Fundamentally, the main take home points from this anticipated judgment are that whilst the Family Court retains the discretion and flexibility to permit the instruction of an unregulated psychologist to give expert evidence, there was a need for rigour during the process of identifying and approving an expert for instruction.
Where does this take us?
Despite this decision being much anticipated, it does not alter the law but perhaps emphasises the need for practitioners and courts alike to scrutinise the expertise of proposed experts ahead of their instruction. This is a particularly relevant issue in cases where parental alienation is alleged: there are many ‘experts’ up and down the country who consider themselves expert in assessing cases where parental alienation is a feature and being able to ‘treat’ the issue. The Family Justice Council have published clear guidance on this issue in 2022 and this judgment does no more than highlight the correct approach we all should be taking when considering an application to instruct an expert and what factors the Court should be taking into consideration.
22nd February 2023
Ian McArdle is a specialist barrister practising in all areas of children law. Ian is currently undertaking a Professional Doctorate in Legal Practice, researching Parental Alienation in the Family Justice System.
 As an aside, it is the belief of the author that this is the clearest guidance given so far by the judiciary as to how the court should deal with cases involving allegations of parental alienation and may go some way to assist the courts in managing cases where parental alienation is alleged in a more consistent manner.