Dr Charlotte Proudman successfully represented a mother in an appeal against the decision to appoint a psychologist to undertake a ‘family assessment’. Cafcass supported the father’s application for an assessment. The ‘expert’ described his main interest as allegations of ‘parental alienation’. The mother is a victim of domestic abuse; she was accused by the father of parental alienation, which was not proved, as she promoted contact.
In another appeal where I successfully represented the mother, it was established ‘parental alienation’ is not a psychological condition capable of diagnosis; it is a question of fact which the court must determine.
Appeal Background
“Dr. Hardiman describes his ‘main interest’ as in ‘the assessment of families affected by high conflict post separation parenting and/or allegations of parental alienation’.” [2]
“Although there were a number of specific findings going back over a number of years, their essence was that the father had behaved in ways that were controlling, manipulative and aggressive towards the mother.
Whilst the mother was not always beyond criticism, despite feeling embattled by the father’s behaviour, she had nevertheless continued to promote the children seeing their father.” [3]
“The father sought the appointment of the psychologist, after an earlier application for such a report by the guardian had been rejected by the same judge on 7 February 2023. There had been a number of other attempts by the judge to find an outside agency or programme that might enable contact between the children and their father to restart, but each attempt had so far failed.” [5]
The mother “argued then that the children had seen too many professionals already, and that she herself does not want to take part in any such assessment.” [6]
The Issues
“The children are separately represented by a guardian, who supported the order and resists the appeal, but for slightly different reasons to the father. She herself had been sufficiently concerned about the number of professionals who had already engaged with the children that she had determined not to see them again herself ahead of the hearing before the judge.” [6]
“The guardian’s position at the original hearing was that the adults only, in the first instance, should be assessed. And then that the assessor should determine whether to later involve the children. Despite the judge expressing reservation about the appropriateness of this course – which he said bore a risk of the court ‘abrogating the responsibility’ of taking the final decision, that was the position which he eventually arrived at.” [7]
“10 months later, the judge then dealt with the father’s application seeking substantially the same relief, but in the context that further attempts to restart the relationship between the children and their father meanwhile had not succeeded. He recorded that the father had undertaken a domestic abuse perpetrator’s programme, but that it ‘has not assisted him in having contact with the children’. [12]
Psychological Assessment
“He also however acknowledged the mother’s objections to being assessed, and the limitations on the report if the mother determined not to proceed…He did not explain what impact this might have on any outcome for the children. He said that he expected her to comply, both with an assessment for her and the children, if he ordered it.
He also expressed the view that the report would cause some significant delay and that ‘there would be a significant impact upon the children of the introduction of another person to assess them, to go over the history of the case, to ask them questions that they have answered on a number of occasions likely before’. He balanced that by saying that this was to be ‘an assessment by a person skilled in a discipline that is as yet untried and untested’. [13]
“One thing that the judge does not address in his judgement is any suggestion that there has been any deliberate influencing of the children by their mother, although this featured as an important element in Mr Glaser KC’s submissions for the father before him, and remains a key issue for the father now:
whether there have been what he described to me as ‘alienating behaviours’ by the mother that may have contributed to the current problems in making arrangements for the children to spend time with him.” [16]
Parental Alienation
The President of the Family Division in Re C (Parental Alienation: Instruction of an expert) [2023] EWHC 345 (Fam) at para.103:
“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.” [17]
“Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. 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.” [17]
Lack of Support for Alienation Allegations
“it cannot be appropriate for a court, having heard evidence over a number of years from these parents, and not having found evidence of any such alienating behaviour by the mother, now to turn to psychologist to see if any such behaviour can be unearthed. The judge himself did not expressly say that that was his purpose in directing the assessment. Further, he nowhere suggested that he had formed any different view about the utility of such evidence to him as that which he had expressed in February, and set out at paragraph 11 above, to the effect that:
‘…I am not clear that a psychological assessment is going to give me any further information about the way that these parents act and behave towards each other and the impact upon the children of their behaviour’.” [18]
“In his welfare judgment of 18 November 2021 the judge had found, despite high parental conflict, that:
‘…this is not anything like a case of parental alienation. One of the issues that persuades me of that is that the mother still allows the children to go to the father and be with him unsupervised, even though I suspect, that in her heart, she feels that the safer thing for the children would be, from time to time, not to go; that is in respect of their physical and emotional welfare.” [19]
CAFCASS Pushing for Assessment
“The guardian accepts that had it been the judge’s intention for the expert to consider ‘disputed allegations or parental alienation’ that would be a ‘determinative flaw’ in the direction made. She suggested that the father’s counsel had sought to include reference to Dr Hardiman’s expertise in parental alienation as a pre-amble to the order, but that the judge had declined to do so. She relies on the fact that one of the issues which the expert is invited to consider is the parties’ acceptance and understanding of the findings already made. However, she was constrained to admit that nowhere in the judgment does the judge justify the appointment by reference to any concerns in that regard.” [23]
“In effect, the guardian was suggesting that the appointment of a psychologist was justified as a last resort because all else had failed, which presented an ‘opportunity’ to explain why the arrangements were failing. On that basis, a court could find itself instructing a psychologist to ‘generally’ assess both parents in very many cases where children were not seeing their absent parent, in the hope that something might turn up to unlock the problem. That is not in my judgment what is meant by the test of necessity, nor does it show any consideration of the careful balancing exercise mandated by s.13 (7) of the 2014 Act, and especially subsections (a), (b) and (c), in circumstances where the guardian herself had determined not to further interview the children because of concerns that they had already been over-exposed in the proceedings to professional assessment. “ [25]
The Decision
“Indeed, there is nowhere in his judgment of 13 December where the judge does provide any other explanation as to why the input of a psychologist would be necessary to enable a just conclusion to the proceedings…He does not identify what necessary issues any psychological assessment of the mother would now address;
and although authorising Dr Hardiman to see the children only if he considers it necessary, he does not explain why he has found that the balance falls in favour of such further investigation, over his earlier expressed concern about yet further professional involvement with them, other than his general expression that the children should be seeing their father, but are not.” [26]
“The judge has not attempted to explain why his earlier determination that a general psychological assessment would not be of any value to him, given his own experience and assessment of the parents, no longer held good.
The fact that other avenues have failed to produce a positive outcome cannot of it itself render the obtaining of such evidence necessary, without the identification of certain issues about which expert evidence is required.” [27]
“In those circumstances, and despite acknowledging the high threshold that any appeal against a case management decision must meet, I am driven to conclude that the judge has not in his judgment identified any proper basis upon which the appointment of Dr Hardiman can now be considered a necessity in the context of these proceedings.
I will not therefore go on the consider the impact of the various procedural shortcuts taken, such as the late production of the Doctor’s CV and the lack of discussion at the hearing about the proposed terms of the letter of instruction.” [28]
“I will therefore allow the mother’s appeal and set that part of the judge’s order aside – paragraphs 4-8, and paragraphs 10 and 13. The directions at paragraphs 12 and 14 shall be amended to remove reference to Dr Hardiman accordingly. The order for indirect interim contact at paragraph 9 should continue.” [29]
Read the judgment in full:
https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/948
Connections and Questions
In Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150, “Following the appointment of a Guardian, the Guardian applied for permission to put further expert evidence before the Court, the father having raised with the Court his concern that the mother was alienating the children against him. The Guardian’s application for expert evidence was supported by the father. The mother opposed further expert evidence being obtained.” [15]
The judge established that experts cannot diagnose ‘parental alienation’ as it is not a syndrome but a factual question for the court to determine. [See 17;31]
In the Harm Report, “Women’s Aid Federation of England submitted that, in their view, there is a disparity of approach to expert testimony, with the courts allowing expert testimony on parental alienation but not allowing expert testimony on domestic abuse.” (61)
There is an interesting question asking why psychologists present themselves as experts in ‘parental alienation’ for the court to use.
Related barristers: Dr Charlotte Proudman
Related practice areas: Family
