There’s been a lot in the media recently about individual people who are appointed in the family courts to give a professional opinion on relationships where there’s suspected alienation by mothers. This process happens by way of agreeing and commissioning a report by an ‘expert witness’ (which I’ve put in quote marks because now it’s increasingly clear that some of these individuals are not regulated by a professional body, their expertise is being called into question by some commentators).

A problem is that self-identified experts on parental alienation, whether conceptualised as a mental disorder suffered by an alienated child or by an alienating mother, tend to find what they are looking for. As the Harm report noted, although parental alienation is a contested and undefined concept, it is too often raised in family courts to be ignored.

Here’s a brief summary of developments, as raised and discussed in a series of Observer articles in recent weeks.

‘Families broken by unregulated court experts’ – 12 June

This article by Hannah Summers and Beatrix Campbell begins on the front page and continues for a half page on page 6 of the paper. There’s also a three page feature of their investigation into the concerns about unregulated experts in family courts, including warnings by the Association of Chief Psychologists UK, and comments by registered psychologists, Dr Jaime Craig and Dr Hannah Jones. Dr Jones puts it in a nutshell:

‘true alienation of a parent where that person is entirely unproblematic is rare enough that it does not need its own concept. Anyone selling therapy to treat PA is doing so without any evidence base’

As Summers and Campbell say, details of these cases are rarely made public owing to the strict rules about reporting on family court proceedings. They mention that they had managed to attend a number of hearings that they couldn’t then report on.

The serious problem identified by Summers and Campbell is that ‘treatment’ for alienation in some cases (we don’t know how many) is to transfer residence of the child to the non-preferred parent and stop contact with the preferred parent, for a fixed period or until a course of therapy has been completed. This is an extremely draconian attempt at resolution, when children’s welfare is the court’s paramount consideration.

Summers and Campbell raise another transparency issue, that some older judgments that have been published on BAILII had inexplicably redacted the name of the expert. We wrote about this happening here.

The Observer article is comprehensive and includes references and hyperlinks to the relevant guidance from the President of the Family Division and the Family Justice Council.

‘Inquiry urged into unregulated ‘court experts” – 19 June

In this article, Hannah Summers reports on three letters sent to the Ministry of Justice and the office of the President of the Family Division, signed respectively by MPs; the Victims Commissioner for London; and by 85 academics and others, all calling for an inquiry into the family courts’ use of unregulated experts.

‘Appeal court kicks out judges’s ban on police investigation’ – 17 July

This is a report on a successful appeal by the Metropolitan Police against an order by Mr Justice Keehan in the High Court forbidding them from investigating a complaint made by two teenage children about their situation following a transfer of residence from their mother (found by Keehan J to have been alienating them from their father). The Court of Appeal decided that a High Court judge does not have power to injunct the police in these circumstances. The Court did not comment on any of the findings made by Keehan J, nor did they make any criticism of the unregulated expert in the case, Karen Woodall. The issue for the Court of Appeal was solely whether the judge was right to have made that injunction against the police. There have already been four published judgments of the High Court proceedings, in which Ms Woodall was named, along with other expert witnesess. The appeal is Re B (Children: Police Investigation) [2022] EWCA 982. Proceedings are ongoing in the High Court.

‘Court-appointed expert can be named in ‘parental alienation’ case’ – 31 July

However, in the most recent article, Hannah Summers was apparently faced with difficulty in naming another unregulated expert. Last Sunday’s Observer features a ‘transparency victory’ in a successful application to identify by name the unregulated parental alienation expert, Melanie Gill, at the centre of this court judgment – F v M (3) [2022] EWFC 89. The issue was whether the judge should have relied on an unregulated expert back in June 2021. In the judgment from that earlier hearing, F v M [2021] EWFC B101, the mother had complained about a blinkered approach being taken, but HHJ Lindsay Davies had concluded: ‘I found that P’s evidence was balanced and was given in a professional way.  P was clear that they have an expertise in parental alienation; P is used to working with families to identify alienation, and particularly to try and resolve the problem by bringing in a team of therapists.’ None of the professionals were named in that judgment but we now know P was Melanie Gill.

It’s not apparent why the standard practice – that expert witnesses are named in published judgments – wasn’t followed in these judgments, although of course it’s helpful that HHJ Davies has published them at all. It’s my understanding that it’s good practice to notify an expert or professional witness ahead if there is some criticism contained in the judgment. As can be seen in the quote above, HHJ Davies had not criticised Ms Gill in 2021, nor did she in the June 2022 judgment, although she notes that the mother does now have (what appears to be positive) contact with the children. I can’t see any sign of Ms Gill making representations about being identified, although Hannah Summers has written in her article: ‘The Observer won an application to name the expert in the case after making a series of submissions to the family courts’.

The credibility of unregulated experts

Three years ago, in the notorious case of Re A (Children : Parental alienation) [2019] EWFC B56, HHJ Wildblood expressed some frustration when an expert got things wrong, and described a failure to resolve an alleged alienation case that included 36 court hearings and ten experts over eight years as ‘a steep learning curve for many’. He highlighted the dilemma of unregulated experts at that time:

‘In making the above comments I do wish to record that Ms Woodall was a court appointed expert in this case and, although she may not be registered with a specific professional body and does not practise in an area that is subject to statutory regulation (as I understand it), she does have supervision from a highly respected consultant child psychiatrist, lectures on issues relating to parental alienation and gives evidence frequently before courts. All that is important, no doubt, when considering her role as an expert in accordance with the annex to PD 25B of The Family Procedure Rules 2010.’ [para 18]

No doubt all family court expert witnesses risk getting criticised from time to time. After all, they have to stand up to cross examination on their views. However, as Dr Jaime Craig told presenter Sonia Sodha last October in this BBC Radio 4 programme, if he does ‘something wrong’ he can get struck off. If the court chooses someone who is not regulated, there is no public accountability. I take this to mean that if I came across a regulated psychologist who a judge had criticised I could reasonably assume that their practice, generally, was still credible. Any professional expert witness with a long track record is inevitably not going to please all of the people all of the time.

On the other hand, promoting oneself in the family courts as a psychologist or psychotherapist who is an expert in parental alienation, while at the same time not being qualified to register with a professional regulator, would seem to make it more challenging to shake off judicial criticisms. Unlike e.g. ‘social worker’, the terms ‘psychologist’ and ‘psychotherapist’ are not protected titles, so while we can be confident a witness calling herself a social worker is qualified, registered and accountable, the same can’t be said of all expert witnesses.

HHJ Davies encapsulates the dilemma in F v M [2022]

26. For many years there has been a debate about the definition of a “psychologist,” who can and who cannot use that term. There have been discussions and arguments about the differences between a clinical psychologist, a forensic psychologist or someone who has followed a Degree course in psychology. There have been many learned debates between the various professional bodies who are keen to regulate or register psychologists of various types. For good reasons, the professional bodies are anxious to protect those who fulfil the criteria for membership of one of those bodies. For that reason, guidance and memoranda have been issued by The Health and Care Professionals Council, The Professional Standards Authority, The British Psychological Society and The Association of Clinical Psychologists. The latter supports a move so that only those who are registered under the HCPC should be instructed in cases. There is another group, The Academy of Experts, who take a different view.

27. It is clear that at some point these debates need to draw conclusions. At some point, simple guidance will be helpful to everyone to avoid the type of arguments that have arisen in the current case.

28. The May 2022 guidance [from the Family Justice Council] notes that certain titles are protected by law, but Clause 3.9 of the guidance notes–

“It remains at the discretion of court to appoint individuals who are not eligible for Chartered Membership of the BPS or qualify for registration with the HCPC, but the court should determine that that person has relevant psychological knowledge or training.”

29. So even in May of 2022 the option of appointing someone who calls themselves a “psychologist” who does not fulfil the requirement to attain Chartered Membership or registration remains an option in appropriate cases. Whether this is a good thing or not is not for me to determine.

Transparency and expert witnesses

We see so many references in social media to experts in parental alienation, it’s obviously damaging for confidence in the family justice system to see constant claims that some experts are unqualified or unaccountable; it’s impossible to know how many cases are relying on unregulated psychologists or psychotherapists. The public owe a big thank you to Hannah Summers who has been appearing in court without a lawyer to make these representations over many months.

Image: thanks Eric Lanthier at flickr

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