Dr. Charlotte Proudman was successful at an appeal hearing representing a mother accused of parental alienation. Dr. Proudman, as Counsel for the Appellant, sought a review for a lower Court hearing in which District Judge Sethi allowed the instruction of an expert. The appeal was successful. His Honour Judge Middleton-Roy concluded that an expert psychological assessment to decide whether parental alienation is an issue in the case was wrong. Assessing parental alienation is a question of fact for the judge to determine.
Dr. Proudman asked the Court to consider that the term/label of “parental alienation” is not something that can be ‘diagnosed’ by a psychologist or mental health professional; instead this should be looked at considering all facts of the case and any evidence there may be of ‘alienating behaviour.’
Grounds of Appeal
The Appellant’s grounds of appeal brought forth these three assertions:
- “The Judge was wrong to order a psychological assessment, which invites the expert to determine the factual matrix of disputed allegations, contrary to the President’s decision in Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam);
- The Judge was wrong to order a psychological assessment of the parents and the children without considering the test of necessity under Part 25 of the Family Procedure Rules 2010; and
- The judge failed to give any reasons for ordering a psychological assessment” 8.
The appeals success was dependent on a decision finding the lower Court was wrong, unjust due to a serious procedural or had an irregularity in proceedings.
Background
“The Court is concerned with two children, twelve and nine years old respectively. Their mother is ‘AM’. The children’s father is ‘RF’. The children are parties to the proceedings through their rule 16.4 Children’s Guardian. The decision of the lower Court, which is the subject of this appellate Court’s review, is a case management decision of a District Judge. His Order of 1 June 2023 permitting the instruction of an expert is the Order which is the subject of this appeal. The application seeking the permission of the Court to put expert evidence before the Court was made by the Children’s Guardian, pursuant to Part 25 of the Family Procedure Rules 2010. The application followed assertions by the father that the mother has alienated the children against him.” 1-3.
Ground of Appeal 1:
Given the allegation made by father of parental alienation, a global psychological assessment of the parents and the children was applied for by the rule16.4 Guardian and an order permitting this was granted. The Judge also approved the questions for the assessment. The Judge was wrong to order this assessment as it is contrary to:
“In Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam) at paragraph 103, the President of the Family Division made the following observations following submissions from the Association of Clinical Psychologists-UK (“ACP”):
“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.’
…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.
Not only did this assessment reinforce a misconstrued understanding of the term ‘parental alienation’ by presenting it as a diagnosable syndrome, but further, the questions approved and presented put the expert in the position of determining whether parental alienation was the cause of the underlying issues, which was outside of their remit. Examples of the questions are as follows:
“Please comment on whether the attitude of the parents towards the other is a positive or negative one, and whether in light of your assessment a relationship between the children and the other parent is fully supported. If not, how can this be changed?” 18.
“Please comment upon each of the parent’s ability to promote a healthy relationship between the children and the other parent, both in the past, currently and in the long term. If you believe that either parent has tried to alienate the children from the other parent, or has exhibited alienating behaviours, either deliberately or unintentionally, please comment on the impact upon the children; what work the parent or parents will need to undertake to remedy any such negative influence; timescales and cost.” 20.
The response?
“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.” 21.
Grounds of Appeal 2 and 3:
The Judge was wrong to order a psychological assessment of the parents and the children, which posits that the test of necessity under Part 25 of the Family Procedure Rules 2010 was not considered. That appeal directly relates to the third ground of appeal, which asserts that there were no reasons given for ordering a psychological assessment by the Judge.
“In Family Court proceedings governed by the Family Procedure Rules, an Order authorising expert evidence will only be made where it is “necessary” to assist the Court to resolve the proceedings justly, pursuant to FPR 25.4(3) for non-children proceedings and section 13(6) of the Children and Families Act 2014 for proceedings involving children. 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).” 23.
Section 13 (7) of this Act provides that, when deciding whether to give permission, they should consider “any impact which giving permission would be likely to have on the welfare of the children concerned, including…any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed” 24.
The mother considered the assessment unnecessary because of the number of professionals the children had already been exposed to and clearly set out her concerns, which are assumed to have been rejected by the Judge.
“She did not agree that expert evidence was necessary. She made clear written submissions setting out her objections, querying the necessity of the instruction, elaborated upon further in oral submissions, including her concern that the children have already been exposed to series of professionals and that further exposure would be harmful.” 27
The response?
“No facts had been found by the Court on the disputed issue of parental alienation. There was no consideration by the Judge of the mother’s assertion that the father had not completed the work recommended by [the previous expert]. There was no consideration by the Judge of the potential harm to the children of exposing them to another professional, where they had already been required to meet the Guardian and a Local Authority Social Worker.” 29.
Conclusion
“In the judgement of this Court, each of the grounds of appeal are plainly made out. This Court must conclude that in reaching his decision to permit further expert evidence, this experienced Judge did not engage with the issues in dispute, did not adjudicate on the disputed issue by reference to the relevant legal principles and did not provide the parties with any reasons for granting the application. In this Court’s judgement, the decision of the lower Court was wrong and must be set aside.
For these reasons, the appeal is allowed on each ground. The Order permitting expert evidence must be set aside. The application for expert evidence must be remitted for further hearing, when the Court will consider also the question of determining the disputed issue of whether any particular behaviour has taken place within the individual family and if so the impact that behaviour may have had on the relationship of the children with either or both of their parents, focussing on the allegations of ‘alienating behaviour.’ The action will be reallocated from the District bench to the Circuit bench and reserved to me.” 30-31.
Read the full appeal here.
Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150
Related barristers: Dr Charlotte Proudman
Related practice areas: Family
