Commentary
Those who have been following, for obvious reasons, Family Court cases in which Melanie Gill has been instructed as an expert should first read the last paragraph of this long-awaited judgment handed down by Sir Andrew McFarlane, President of the Family Division of the High Court:
‘Although Melanie Gill has featured to a significant degree in this judgment, and in the three previous cases to which I have made reference, she has done so as the representative of a category of expert, rather than as an individual. I have said that this judgment is not 'about Ms Gill', and that is right. It is about those individuals who hold themselves out as 'psychologists' and are willing to be instructed in Family Court cases, but who are neither registered, nor chartered as psychologists. I have been very conscious that Ms Gill has not had formal notice of these proceedings and has not had any opportunity to play a part in them. That is so because the mother's Part 18 application is not about Ms Gill, it is about the failure of the whole process, which was undertaken in a manner which is now to be seen as fundamentally unsound for the reasons that I have given.’
Leaving aside the court’s admission that at the heart of this case was a fundamentally unsound process to which every agency involved in the proceedings could be seen to have been at fault - CAFCASS, the children's solicitor, the local authority and the court – what is newsworthy about this case is the position now made clear by the Family Court with regard to people who describe themselves as psychologists but are not (a) regulated by a UK statutory body; or (b) on a register accredited by the Professional Standards Authority for Health and Social Care; or (c) regulated by an approved regulator under the Legal Services Act 2007. So, a prospective expert witness, such as Ms Gill, who calls themselves a psychologist, but who is not registered with a UK statutory body, such as the HCPC, cannot be instructed as an expert in children Family Court proceedings unless it is established that no ‘registered expert’ is available.
Dr Jaime Craig, President of the Association of Clinical Psychologists UK, writes on Linked-In:
"I remain immensely proud that ACP-UK was the professional body willing to take a stand to protect victim/survivors of abuse from the harmful consequences of unregulated psychological opinion and pseudoscience. As in the field of medicine, it is an ethical duty to act to prevent children and adults from exposure to unsafe practice in the field of psychology."
The judgment also makes it clear that it is the court, not the expert, which makes findings of fact.
Case
In December 2014 the parents of two young children separated and subsequently divorced. In 2018 the father sought an order for the children to move to live with him. Allegations of abusive behaviour are made by each parent against the other. At a hearing in October 2019 the court heard evidence from a psychologist, Ms Melanie Gill. At the conclusion of Ms Gill's evidence the judge found that the children had been alienated from their father as a result of the mother's highly negative attitude towards him.
In December 2019 the judge made an order directing that the two children should move immediately to live with their father. At that time the eldest, a girl ['X'], was 12 years old and her brother ['Y'] was 9 years old.
From the end of 2019 until 2025 the children had no contact of any sort with their mother. In the early part of 2025, the daughter, then aged 18 years, moved to live with her mother for a few months before returning to her father's care. Later in 2025 the boy, now aged 15, unilaterally left his father's home. He travelled to his mother's home but, in the light of the court's previous findings, he was removed into police protection and spent a period of time in foster care before going to stay with a friend of the mother.
The children's mother issued an application seeking an order setting aside the previous findings of fact and on 29 January 2026 Sir Andrew McFarlane P set aside the key findings of fact made in October 2019. This judgment sets out his reasons for making that decision.
Before turning to the detail of the case it is necessary to stress that, although the role of Ms Melanie Gill in these proceedings is of some importance, this judgment is not about one person. When the process that was followed in 2019 is held up for audit against the principles of good practice in cases concerning alleged alienating behaviour which are now well established, every agency involved in these proceedings can be seen to have been at fault. By "every agency", I am referring to CAFCASS, the children's solicitor, the local authority and the court. This judgment is not therefore 'about Melanie Gill', it is, much more worryingly, about the failure of the system to act, as it should have done, in discharging its responsibility to protect the children and to prioritise their welfare needs.
The 2019 proceedings
In a welfare report in February 2019 a CAFCASS officer noted: "Both parents make extremely serious allegations about the other in terms of suffering from severe domestic abuse and coercive control from the other and I would suggest it needs to be determined by the court where the truth lies". Whilst the report recorded that its author had used a tool for assessing whether parental alienation was a factor in the case, and found indicators that it was, the recommendation was nevertheless that the court should hold a fact-finding hearing.
In April 2019, an application was made on behalf of the children's guardian for Melanie Gill to be instructed as a single joint expert psychologist to undertake "a specialist family assessment". The report of Melanie Gill, to which I will turn in some detail shortly, was filed in September 2019. In the appendix to her report, Melanie Gill described herself as a 'psychologist, forensic assessor and forensic consultant (to policy makers/media, institutions) with her own practice'. In oral evidence she described herself as 'an assessment psychologist'. Ms Gill does not have a clinical or therapeutic practice in which she sees patients. Whilst her CV lists membership of a range of organisations, Ms Gill is neither a chartered psychologist, nor registered with the Health and Care Professions Council ['HCPC'].
Ms Gill's main report was more than 100 pages long. These were key aspects of her contribution:
i) Ms Gill's analysis was undertaken by the application of 'Attachment Science' and through requiring the family members to complete certain bespoke psychological assessment tools (particularly the Adult Attachment Interview);
ii) Ms Gill found significant psychopathology within the mother's psychological profile and pattern of attachment organisation, so that she was a 'highly vulnerable person' with traits of 'narcissistic' and 'histrionic' thought processing in the way she organised her relationships with others. There was 'unresolved trauma' from emotional neglect arising specifically within her relationship with her own mother at a fundamental level of functioning;
iii) Although the mother loves her children, they were 'hardly present' in her psychological functioning, with the children being 'used in order to support "projected" vengeful anger, from her childhood relationship with her mother, against their father';
iv) The children's behaviour, which was 'directly influenced by their mother's hostile antipathy to the point of hatred of their father', was said to be so challenging to the father and his partner that the father and partner 'are running out of ways in how they can help the children regulate the "alienation" they are being subjected to within their home environment';
v) Ms Gill found 'extensive evidence' that the children were being actively 'alienated' from their father by their mother;
vi) Ms Gill advised that, if the children continued to live with their mother, they would be at significant psychological risk from the decisions that their mother would make about their care and within their attachment relationship with her;
vii) Ms Gill advised that the traumatic nature of the mother's attachment relationships with the children was such that the 'danger' that is inherent within the children's environment was not just to do with the mother's feelings about the father, but was a result of her fundamental attachment organisation. She recommended that removal of the children from their 'traumatising environment and relationship with their mother' was necessary.
The report of the children's guardian, which was filed after Ms Gill's report, recorded the strongly expressed views of the two children but advised that:
'unfortunately, [the children's] wishes and feelings cannot be given much weight in the final decisions made for them due to the negative influence of their mother and the children's alignment with their mother.'
In the 'Professional Judgment' section of her report, the guardian endorsed the findings and conclusion of Ms Gill and reported that they accorded with her own experience of the children. In that report, and prior to any evidence being heard at the up-coming fact-finding hearing, the guardian recommended that the children should 'move to the care of their father as soon as possible', with all communication between the children and their mother being prevented during a settling in period.
The five day hearing commenced with oral evidence from Ms Gill. It was then adjourned for some days in order for counsel to obtain further information. Ms Gill's evidence was concluded on the 2nd substantive day. At the conclusion of her evidence the judge asked whether, if the court were to find the allegations of physical abuse (including marital rape) proved, Ms Gill would want to review or alter her recommendations. Her answer was that she would not, as the factor that was 'carrying on affecting behaviour and emotions ... is the hatred for the father [which] is in connection with mainly the projected anger at the [maternal grand] mother'.
On 18 December the court made orders providing for the children to move 'with immediate effect' to their father's care, and preventing the mother from having contact with either child 'until further order'. At the final hearing, the judge made findings as to recent events that had been in issue and he was critical of the mother for not undertaking Schema therapy. He noted that the mother had told the court that she had been undertaking some form of therapy, but had not given any details of this. He accepted that the children wanted to see their mother, but considered that this could not occur until she had undertaken the form of Schema therapy recommended by Ms Gill. The judge therefore made orders providing for the children to continue to live with their father and to have no contact whatsoever with their mother or her partner: 'the mother shall not be allowed any contact with the children [names] until further order.'
In a schedule to his order, the judge set out a list of findings which included:
'1. The Mother has caused the children significant emotional harm; the court accepting in full the conclusions of Melanie Gill and findings therein shall stand as the court's findings.
2. The Mother is unable to meet the children's needs nor or in the near future and the children's psychological safely is compromised in turn.
3. [Mother's partner] is unable to act as a protective factor.
4. The Mother's vengeful anger from her childhood is imposed on the Father as a result of her maladaptive relationship attachments.
5. The Mother has triangulated the children against their Father and has actively alienated them from him.'
In April 2025, the mother issued her current application to reopen and set aside the findings made in 2019 and 2020 based on Ms Gill's opinion. There were a number of hearings before judges of the Family Division in quick succession in order to meet the needs of the younger child, Y, who had departed from his father's home on 13 November and travelled to be with his mother (with whom he had had no contact for over five years). On 14 November, Y was removed from his mother's home at 4.00am by the police. On 27 November following a full hearing. Lieven J discharged the child arrangements, prohibited steps and specific issue orders made by DJ G Smith in 2020 and directed that the mother's application be heard by the President in January 2026.
On 30th January 2026, McFarlane P made orders discharging the s 8 order to mother’s friend and replacing it with a child arrangements order providing for Y to live with his mother.
The mother’s application asserted that 'very significant new evidence and information' now existed sufficient to cast doubt on the earlier findings and justify reopening them. The application drew particular attention to the fact that the FJC guidance is clear that unregulated experts, such as Ms Gill, should not be instructed in cases of alleged alienating behaviour. The advice is that expert evidence should only be directed after any findings of fact have been made and should not be relied upon for the purpose of making such findings. The application further relied upon criticism of Ms Gill within the judgment in Re C and in the more recent authority of P v M [2023] EWFC 254.
Counsel for the mother described how she had never accepted Ms Gill's analysis, or the underlying assertion about her relationship with her own mother upon which it was based, and that the mother had undertaken a sustained and tenacious quest to have them set aside. Her refusal to accept the findings, and to engage in the recommended therapy, which would involve her acceptance of the findings, had led to her being estranged from her children for the past five years.
The modern approach to 'parental alienation'
The full title of the FJC Guidance issued in December 2024 is
'Family Justice Council Guidance on responding to a child's unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour'.
In a Foreword to the guidance, McFarlane P endorsed the content and encouraged its application in all cases to which it is relevant. The guidance, which is clear that there is no evidential basis for what had become known as 'parental alienation syndrome', focuses on cases where a child is reluctant to see or have a relationship with one or other parent. Whilst, if the final stage of evaluation is reached, the court will determine whether or not the other parent has exhibited alienating behaviour with respect to the children, it is very clear that, before that question can be addressed, the court must determine any relevant allegations of domestic abuse that have been made. There is an obvious difference between a case where a parent and/or child are the victims of domestic abuse and then go on to approach the other parent, being the perpetrator of that abuse, in a negative manner, on the one hand, and a case where the other parent has not been abusive and a child's reluctance, resistance or refusal to relate to that parent has arisen for other reasons.
Paragraph 10 of the guidance advises:
'A court would therefore need to be satisfied that three elements are established before it could conclude that Alienating Behaviours had occurred:
i) the child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer; and
ii) the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection by the child ('AJR'), or is not caused by any other factor such as the child's alignment, affinity or attachment ('AAA'); and
iii) the other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child's reluctance, resistance or refusal to engage in a relationship with that parent.'
In order to make full sense of paragraph 10(ii) it is necessary to refer to the definition of AAA in the Glossary of Terms section of the guidance:
'Attachment, affinity and alignment ('AAA') - reasons why children may favour one parent over another, or reject a parent, which are typical emotional responses to parenting experiences and not the result of psychological manipulation by a parent.'
Element (ii) in paragraph 10 requires the court being satisfied that a child's reluctance, resistance or refusal is not the result of (a) the actions of the estranged parent towards the child or other parent, or (b) the typical emotional response of a child attaching, feeling affinity towards or aligning with one parent as opposed to the other, rather than the result of psychological manipulation of the child by that parent.
Paragraph 18 is in direct terms concerning cases of domestic abuse:
'Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child's appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent.'
It advises that children may withdraw from wanting a relationship with a parent for a range of reasons (for example abuse or neglect). Simply pointing to that withdrawal does not establish that it has been caused by alienating behaviour on the part of the other parent. Paragraph 44 explains:
'Children who show reluctance, resistance or refusal to maintain or build a relationship with a parent who has been abusive towards them or towards the other parent, may be found to have a justified response to that parent. The allegation of Alienating Behaviour will thus fail.'
It is for the court to determine whether a fact-finding hearing is required in cases where domestic, or other, abuse is alleged. In making that decision, the court will apply the guidance applicable to any other case where domestic abuse may be alleged.
The factual matrix around allegations of alienating behaviour is a matter for the court alone; it is not a matter for expert psychological evidence. Any findings of fact once made will then, but only then, be important material for an expert or CAFCASS officer tasked with advising the court on issues of welfare [FJC guidance paragraph 76].
Chapter 7 of the guidance gives more detail of the approach to be followed:
Use of experts
It is inappropriate for experts to be asked to step into fact-finding or determination of Alienating Behaviours - as such, the timing and type of expert evidence needed is crucial. In determining the welfare outcome, when the presence of such harmful behaviours has been identified, it may be necessary to have expert evidence from a psychologist expert.
Determining the appropriate type of psychologist expert should be in accordance with the Family Justice Council (FJC)/British Psychological Society (BPS) guidance for Psychologist expert witnesses. This updated guidance includes additional points in relation to the instruction of psychologist expert witnesses, specifically the scrutiny of their regulation, their qualifications, and their access to psychological tests, given in Re C ('Parental Alienation').
These assessments should not be undertaken by academic psychologists or psychological researchers in the field of alienation. The guidance from the BPS is that only HCPC registered psychologists have the relevant clinical experience and training to conduct psychological assessments of people and make clinical diagnoses and recommendations for treatment or interventions, whereas, academic psychologists, who should be Chartered, but who are not registered with the HCPC, would not normally have the clinical experience and training in order to complete psychological assessments or make clinical diagnoses.
Given the complexity of these cases and the often interacting psychological factors at play in the adults and the children, it is likely that assessments which will assist the court in determining welfare outcomes are those offered by HCPC regulated Practitioner Psychologists with competence in assessing adults and children, e.g., Clinical Psychologists/Counselling Psychologists. Although there are differences in their training competencies, both are trained to assess both adults and children. The training proficiencies and proficiency exclusions of different types of practitioner psychologists are set out in Appendix 2 of the FJC/BPS guidance for Psychologist expert witnesses.
There is an inherent risk of confirmatory bias if instructions and assessments are framed solely in terms of allegations of Alienating Behaviours. It is important that the instructions for psychological evidence when there are findings of Alienating Behaviours are not narrowed in focus but retain the breadth and scope typical to holistic psychological assessments of parents and children in the family courts.'
The FJC/BPS Guidance on psychologist expert witnesses
In September 2023 the 2nd edition of guidance was issued by the FJC and the British Psychological Society ['BPS'] on 'Psychologists as Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations'. The guidance is for use by those in the family justice system who may be involved in the process of instructing an expert witness in the field of psychology. It relates exclusively to practitioner psychologists working within the remit of the Health and Care Professions Council ('HCPC') or academic psychologists chartered by the BPS. It would not, therefore, relate to an individual such as Ms Gill, who holds herself out as a psychologist but is neither registered with the HCPC nor chartered.
The guidance explains that [paragraph 3.1]:
'Practitioner psychologists who have the qualifications necessary to meet the stringent criteria for statutory regulation with the HCPC, are registered with the HCPC with one (or more) 'protected' titles. The legislation protects seven titles: Clinical Psychologist, Health Psychologist, Counselling Psychologist, Educational Psychologist, Occupational Psychologist, Sport and Exercise Psychologist, and Forensic Psychologist. In addition, the two generic titles - Practitioner Psychologist and Registered Psychologist - are available to registrants who already hold one of the seven 'specialist' titles.'
It is of note that registration is only open to 'practitioner psychologists' and would not be open to a non-clinical psychologist, that is one, like Ms Gill, who does not work with patients.
At paragraph 3.5 the guidance points to the loose use of the formal sounding title 'psychologist', which may, in fact, be used by an individual who is neither registered nor regulated as a psychologist:
'A lack of understanding and awareness has resulted in the use of various titles in the Family Court system. Such titles have no specific meaning, nor are they protected or regulated by the HCPC. Examples of such titles include 'psychologist', 'child psychologist', 'consultant psychologist', 'assessment psychologist', 'developmental psychologist' and 'attachment psychologist'. The HCPC does not protect these titles and their use does not indicate statutory registration.'
The guidance, which has the backing of the FJC, advises that only psychologists who are registered with the HCPC or/and chartered by the BPS should be instructed as 'psychologists' in Family Court proceedings.
Re C (Parental Alienation: Instruction of Expert)
In Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam), MacFarlane P heard an appeal against a judge's refusal to reopen a fact-finding decision in a case in which Ms Gill had been the expert witness (Ms Gill was referred to as 'Ms A' in the judgment). The Association of Clinical Psychologists ['ACP'] was permitted to intervene in the appeal but, in a manner that McFarlane P described as fundamentally unsound, unfair and wrong, ‘sought to abuse their position by mounting a root and branch critique of Ms Gill and her involvement in the proceedings’. Part of the ACP submission was to assert that Ms Gill was not qualified to call herself a 'psychologist' or to act as an expert witness. In respect of that submission, McFarlane P concluded that it was not supported by any firm legal authority, such as a statute, statutory instrument or regulation and that it could not be sustained.
On its own facts, the appeal failed and was dismissed, but in the course of the judgment McFarlane P made a number of more general observations about the use of unregistered or unregulated experts in Family Court proceedings.
In short terms, whilst many, if not most, of those offering to provide psychological expertise are registered with and regulated by one or more of the relevant professional bodies, the reality is that anyone may call themselves a 'psychologist'. The consequence is, as McFarlane P recorded:
'The court must, therefore, work with the current, potentially confusing, scheme, but must do so with its eyes wide open to the need for clarity over the expertise of those who present as a psychologist, but who are neither registered nor chartered.'
The result was that the approach in 2023 to the instruction of a non-registered or regulated individual as an expert must, necessarily, be nuanced:
'It is not, however, for this court to prohibit the instruction of any unregulated psychologist. The current rules and guidance are clear and contain an element of flexibility. The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying, as it must, the principles reiterated by the Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579 at 588) that:
'if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.'
This is not, however, an open house and there is a need for caution. In every case the court should identify whether a proposed expert is HCPC registered. A sensible practice, where the expert is unregistered, is for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.'
In light of the opaque nature of the qualification of non-registered or regulated psychologists, McFarlane said that he stressed the need for rigour in identifying an expert who may be instructed in any particular case.
With regard to 'parental alienation', he made the following observation:
Parental Alienation
[103] 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.'
It is not the purpose of this judgment to go further into the topic of alienation. 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.'
One final matter relating to Re C required clarification. At this hearing, the court was told that Ms Gill has used social media to claim that she was 'exonerated' by the judgment in Re C. If such a claim has been made by Ms Gill, she has fundamentally misunderstood the court's judgment in Re C which was critical of her claim to any form of expert qualification and which strongly cautioned any court in the future from instructing an expert, such as Ms Gill, who is neither registered nor regulated.The hearing in Re C simply did not embark upon any detailed evaluation of Ms Gill's involvement in that case; in lay terms, the question of whether or not she was open to criticism was simply 'not put'. That situation obviously falls a good deal short of exoneration.
The case of P v M
In P v M [2023] EWFC 254, Mrs Justice Judd conducted the final hearing relating to the future welfare of two children of secondary school age. The couple had separated when the youngest child was just 2 years old. The father then moved abroad, but had some contact back in England. Problems however soon developed and, following a fact-finding hearing, adverse findings were made in 2017 about the father speaking in a vile and unpleasant manner to the mother in front of the children. Contact had, however, improved, and orders for continuing contact were made at that time.
The arrangements soon failed and proceedings were re-commenced in 2020. The children were joined as parties, represented by a children's guardian. Ms Melanie Gill was instructed to provide a global psychological assessment. The parents made cross-allegations, the mother claiming that he had been abusive to her and had behaved abusively to the children during contact, the father asserted that she had undermined his relationship with the children.
Judd J's description of Ms Gill's report and analysis was in similar terms to the present case, including identifying that the mother had unresolved traumatic loss with respect to her maternal grandmother, and complex unresolved trauma from a life-event concerning her own mother. These factors were said to continue to influence her relationship with her children, and how she managed contact with their father.
Ms Gill concluded that the mother was 'projecting the traumatic fear from her childhood onto the children within her current functioning' and believed that the children were being harmed by almost any sort of contact with their father. The children had been affected vicariously. Ms Gill stated that S was becoming 'alienated' from her father as a result of a combination of the mother's unconscious behaviour and some negative experiences with the father. Ms Gill found that the father, also, was affected by unresolved trauma arising from emotional neglect by his parents.
Judd J was critical of Ms Gill's approach, which based primarily on her assessment process, rather than an holistic overview of all the circumstances:
'Notwithstanding Ms. Gill's assurances that she had read all the papers and took all the evidence into account, I consider that her assessment was narrowly based on her own interpretation of the results of the structured attachment based interviews she carried out rather than upon the evidence as a whole.'
Although counsel for the mother was critical of Ms Gill in cross examination and in submissions, Judd J, taking the lead from the judgment in Re C, declined to embark upon a critique of Ms Gill's qualifications and standing as an expert. Judd J determined the issues in the case without giving any weight to Ms Gill's analysis and directed that Parenting After Parting therapy should be provided to the parents, but by someone other than any recommended by Ms Gill and on the basis of the judge's findings rather than any reliance on the assessment of Ms Gill.
O v C
In her judgment in O v C [2025] EWFC 334, Judd J determined an application made, in similar circumstances to the present case, to set aside findings of fact that had been made by a district judge in reliance upon expert evidence from Melanie Gill. In her assessment, Ms Gill stated that the children had suffered emotional and psychological harm as a result of the mother's parenting and would continue to do so if they returned to her care without the mother receiving significant and specific therapy. Ms Gill specifically found that the children were being actively alienated from their father by the mother. She recommended that the mother should engage in Schema therapy and that, until she had done so, there should be no unsupervised contact. In like manner to the present case, the judge had found that Ms Gill was correct in her evaluation. The children were removed from their mother's care at an interim hearing and had had only limited contact over the ensuing five years.
Judd J made a distinction between any findings of fact made before the instruction of Ms Gill, which could be relied upon, and findings of alienation purported to have been made by Ms Gill, which:
'cannot have that status, nor, following that, can any findings that have been made by the judge'.
No criticism was made of the judge, who was determining matters prior to Re C and the FJC guidance, but, with the benefit of knowledge of the approach that must now be taken:
'we can see that, in fact, the findings of fact that the judge said he was making at paragraphs 50 and 51 of his judgment were based on an uncertain and, indeed, mistaken foundation.'
Judd J concluded:
'In all those circumstances, the finding that the judge said he made in paragraphs 50 and 51 cannot be regarded as a finding that has proper status today. He had not embarked on a factual investigation of the mother's specific behaviours including the three necessary elements that had been considered as being required by the Family Justice Council as set out above.
The matters set out at paragraph 10 (i) and (ii) of the Guidance were not determined, nor was (iii), namely that the other parent has engaged in behaviours that are directly or indirectly impacted on the child. Ms Gill carried out an assessment of the mother which included her own attachment and other behaviours, but that does not form a finding of fact about how the mother actually behaved.
Therefore there are no findings with a solid foundation that the mother alienated the children even though the judge expressed it as such, and accordingly no findings to actually set aside. For the avoidance of doubt, I make it clear that what the judge expressed to be findings based on Ms Gill's assessment should not stand as such in any further assessment going forward.
I would go a step further and say that Ms Gill's report is based very much on attachment science and her assessment of the parents is through that prism. It makes it very difficult to retain any of what she says as a base for future decision-making. Accordingly that report should be left out of account by anyone going on to carry out a further assessment of the children, which includes any observation the judge made about it. Everyone agrees that it should be Cafcass who should now investigate and prepare a section 7 report for the court.' [emphasis added]
McFarlane P emphasised the absence of any findings 'about how the mother actually behaved' because, in so holding, Judd J's approach was entirely correct in pointing out the lack of any sound foundation for the expert's evaluation. This is a good example of the approach required by the FJC guidance, which makes plain that findings on significant and relevant allegations of domestic abuse might provide an understandable context for 'a child's appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent'.
Before Judd J, no party was suggesting that the issue of alienating behaviour should be relitigated, and the case therefore went forward for future decisions concerning the children's welfare to be determined without reference to Ms Gill's analysis or the judge's findings that had been based upon it.
Proposed rule change
The final element that it was topological note in this review of the current landscape surrounding the issue of the instruction of experts in cases such as the present has not yet been fully formed, but has progressed sufficiently towards becoming part of the procedural law by the middle of 2026 so as to require at least passing reference in this judgment.
In the middle of 2025 the Family Procedure Rule Committee consulted on proposed changes to the FPR 2010 relating to the instruction of unregulated experts. In essence the proposed change restricts the court's jurisdiction to give permission for the provision of expert evidence under Children and Families Act 2014, s 13 so that, in children proceedings, the court may only give permission to instruct a 'regulated expert', unless there is no regulated expert available. The proposed rule change defines 'regulated expert' as an expert who is:
a) regulated by a UK statutory body; or
b) on a register accredited by the Professional Standards Authority for Health and Social Care; or
c) regulated by an approved regulator under the Legal Services Act 2007.
Although consultation on the proposed rule change has concluded, the results have yet to be reviewed by the Rule Committee and it would, thus, be premature to assume that it may pass into law. McFarlane P referred to it therefore as no more than an indication of the possible direction of travel and to note that that is a direction which is entirely at one with the guidance that already exists and with the judgment in Re C. If the proposed rule change were to be enacted, a prospective expert witness, such as Ms Gill, who calls themselves a psychologist, but who is not registered with a UK statutory body, such as the HCPC, could not be instructed as an expert in children Family Court proceedings unless it were established that no registered expert was available.
The modern approach to the instruction of unregulated experts and the assessment of alienating behaviour
Regarding unregulated experts, the judgment in Re C strongly encourages courts to favour the instruction of regulated experts, and only to turn to an unregulated expert where there are good reasons for doing so, which are to be set out in a short judgment. The need for rigour on the part of the court in identifying and approving the instruction of an expert is stressed; this being particularly so given the potentially confusing use of the title 'psychologist'.
Whilst it is for the Rule Committee and the relevant minister to decide whether to promote any amendment to the FPR 2010 by a statutory instrument, McFarlane says that he is sufficiently concerned by the instruction of an expert such as Ms Gill in Re C, P v M, O v P and the present case, now to go further than he did in Re C and give firm guidance on the instruction of an expert psychological witness in children proceedings in the Family Court.
In future, permission should not be given under CFA 2014, s 13 for the instruction of an expert 'psychologist' who is neither registered by a relevant statutory body, nor chartered by the BPS. It would be good practice, before a potential expert is appointed, for them to be asked to state whether they hold an HCPC protected title, and if so what that is, before any order is made appointing them as an expert. The 'registered or chartered' requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.
The issue of alienating behaviour will, predominantly, arise in private law proceedings but, as this case demonstrates, a finding may lead to a radical dislocation of family relationships that is sustained over a period years. The expectation should be that the degree of rigour that is applied by professionals and the court in managing the instruction of an expert in public law proceedings, is similarly applied in private law proceedings of this nature.
Turning to alienating behaviour, having set out the ground in the early parts of this judgment, McFarlane P summarised the modern approach in short terms:
i) As the full title to the FJC guidance makes plain, the reason for the court's investigation should be 'a child's unexplained reluctance, resistance or refusal to spend time with a parent', rather than the allegations that one or other parent may be making against the other;
ii) Where a child is reluctant, resisting or refusing to engage in a relationship with a parent or carer (element (i) of the three elements in paragraph 10 of the guidance), then the court's focus will move to element (ii) to consider whether that reluctance, resistance or refusal is a consequence of the action of the estranged parent, where it is alleged that that parent has been abusive to the child and/or caring parent;
iii) If it is found that the estranged parent has not behaved in a way in which the child's reaction can be seen as an 'appropriate justified reaction' [AJR] to such behaviour, or, for other reasons, it is found that the child's reaction is not caused by any factor such as a child's ordinary alignment, affinity or attachment [AAA] to the parent with care, then the court will move on to element (iii);
iv) It is only at the stage of element (iii) that the court will focus on whether the caring parent has engaged in alienating behaviours that have directly or indirectly impacted on the child, leading to the child's reluctance, resistance or refusal to engage with the estranged parent.
v) Thus, where domestic abuse is alleged, and there is a cross-allegation of alienating behaviour, if a fact-finding process is required, the focus of the fact-finding must be to first determine the issues of domestic abuse and secondly to consider whether the child's refusal to engage with the estranged parent is an 'appropriate justified reaction' to any abusive behaviour, or that what has occurred is the result of protective behaviour or a traumatic response on the part of the victim parent.
vi) Courts should not follow the route adopted by the judges in O v P and the present case in determining the issue of alienating behaviour on its own and without determining the underlying facts and, where it is alleged, the primary issue of domestic abuse;
vii) Courts should not appoint an expert to advise in cases where a child is reluctant, resistant or refusing to engage with a parent unless and until there is clarity and, if necessary, facts that have been found, as to the parents' past behaviour towards each other and the child and, if domestic abuse is proved, whether the child's reaction to that behaviour is an appropriate one.