Re C (‘Parental Alienation’; Instruction of Expert)

Professional guidance on expert evidence is guidance, not black-letter law or regulation. It does not, by itself, retrospectively make an earlier appointment unlawful or render an expert unqualified. Qualification is ordinarily for the individual court, which should adopt a rigorous process, identify HCPC registration or BPS chartered status, and give reasons when instructing an unregulated psychologist.

“Parental alienation” is not a diagnosis for an expert to make. It is a factual issue for the court, which should focus on alleged alienating behaviour and its impact. A rehearing of findings requires solid grounds for believing that a different result may follow. A Children Act 1989 s 91(14) filter may be imposed where further litigation risks harm, subject to necessity and proportionality.

This was an appeal by a mother in long-running private-law children proceedings. The Family Court had refused permission to instruct a further expert and refused to reopen a 2021 fact-finding and welfare determination, which had relied partly on evidence from an unregulated psychologist concerning alleged parental alienation. It also made a Children Act 1989 s 91(14) filter order until June 2025 and ordered a £20,000 contribution to the father’s costs.

The mother challenged the refusal to reopen, the treatment of expert qualification and later guidance, the s 91(14) order and the costs order. The central issues were whether fresh information justified a rehearing, whether this appeal could determine the expert’s qualification, and whether the protective and costs orders were proportionate.

1. Disposition. The appeal was dismissed in relation to reopening the fact-finding, the Children Act 1989 s 91(14) order and costs. The £20,000 contribution towards the father’s costs was upheld.

2. The court endorsed the approach in Re E [2019] EWCA Civ 1447. An application to reopen findings requires a balance between finality and sound welfare decisions. The court must weigh resources, delay, the importance of truth, the nature and significance of the findings, and the quality and relevance of further evidence. There must be solid grounds for believing that a rehearing may produce a different finding.

3. The judge had properly applied that approach. The children had been in litigation for many years, further litigation would cause harm, and no genuinely new evidence had emerged. The original determination rested on three separate elements: the judge’s own credibility findings, the guardian’s independent welfare analysis and the expert evidence. The challenge to the expert therefore did not undermine the whole judgment.

4. The refusal to instruct Professor Wang was not erroneous. His opinion had already been provided informally, the expert had been cross-examined on qualifications at the original hearing, and the relevant guidance and curriculum vitae were available. An appeal against refusal to reopen was not an appropriate forum for determining the expert’s fitness to practise through competing submissions between interveners.

5. Later guidance from the ACP, FJC and BPS, and the President’s Memorandum, was important but was not law or regulation. It did not retrospectively invalidate the appointment or make the expert unqualified. Under the existing framework, qualification is for the individual court. There is no automatic prohibition on instructing an unregulated psychologist, but courts should identify HCPC registration, scrutinise qualifications and experience, and give reasons where an unregistered person is instructed. The court invited the FJC to consider clearer guidance and a qualifications template.

6. “Parental alienation” should not be treated as a diagnosable syndrome. Whether alienating behaviour occurred is a question of fact for the court. The focus should be the particular behaviour alleged and its impact on the child’s relationship with either or both parents.

7. The s 91(14) order was proportionate. Such an order is a filter, not a total bar on applications. The judge had considered the potential damage from continued litigation, the children’s need for stability and the interference with Article 8 rights. The absence of an express finding using the phrase risk of harm did not invalidate the order.

8. The costs order was within the judge’s discretion. The application to reopen repeated arguments previously rejected and had no realistic prospect of success. It was open to the judge to regard the conduct as unreasonable and order a contribution to costs.

1. High Court (Family Division) The appeal against the refusal to reopen the findings, the Children Act 1989 s 91(14) order and the costs order was dismissed.
2. Family Court HHJ Lindsay Davies refused the application to reopen on 15 June 2022, imposed a s 91(14) filter until June 2025 and later ordered a £20,000 contribution towards the father’s costs. No neutral citation is stated in the judgment.