Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38
Sir Andrew McFarlane’s judgment provides guidance on the use of expert psychological witnesses and on the approach to determining allegations of alienating behaviours.
Facts
In original proceedings in 2019, a “specialist family assessment” by Melanie Gill concluded that the parties’ two children were being alienated by the mother against the father and that they were suffering significant harm in the mother’s care. Ms Gill recommended that the children should be removed from their mother’s care, with which the children’s guardian agreed. The key aspects of Ms Gill’s report are summarised at [§10], including that the children needed to be removed from their ‘traumatising environment and relationship with their mother’.
The parents had made serious allegations of domestic abuse and coercive control against each other but there had been no fact-finding hearing. A fact-finding hearing had initially been listed, but the court concluded that it was no longer needed in light of the report’s findings and having heard the evidence of Ms Gill. This was against the mother’s arguments that there should only be expert analysis after the determination of the allegations (submissions with which Sir Andrew McFarlane later agreed at [§§14 – 15]). Ms Gill had said in evidence that her recommendations would not change even if the court were to find the allegations of physical abuse proved [§13].
Ms 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’. The court noted that Ms Gill does not have a clinical or therapeutic practice in which she sees patients and that 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’).
There was a transfer of residence so that the children (then aged 12 and 9) moved to live with their father. They had no contact with their mother, who was said to refuse to accept the findings and to engage in the recommended therapy. The mother attempted to change the arrangements but in 2022 a s91(14) order was made prohibiting the mother from bringing any further applications regarding the children without the court’s permission for one year.
In 2025, ‘X’ (the parties’ daughter, then aged 18) moved to live with her mother for a few months before returning to her father’s care. ‘Y’ (the youngest child) then chose to leave his father’s home and go to his mother’s home. He was removed by police and placed in foster care and then with a friend of the mother. An order provided that he could spend time with his mother.
The mother sought an order that Y could live with her, and to set aside the findings of parental alienation. Y, who had his own legal team, also sought to live with his mother.
Experts
The judgment builds on the observations about the use of unregistered or unregulated experts in Family Court proceedings in Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam).
The guidance ‘Psychologists as Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations’ (the second edition of guidance issued by the FJC and the British Psychological Society [‘BPS’]) is discussed at [§§47 – 50]. The judgment describes “the loose use of the formal sounding title ‘psychologist’” [§49] and states that the guidance, backed by 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” [§50]. The judgment reiterates that: “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’” [§53].
This judgment goes further than Re C to give “firm guidance on the instruction of an expert psychological witness in children proceedings in the Family Court”:
“73. 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.”
There are proposed changes to the instruction of unregulated experts, as set out in [§§68 – 70]. These would restrict 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. A regulated expert would be:
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.
These proposed changes have not yet passed into law.
It should also be noted that the application for the instruction of Ms Gill had not, it seems, been made formally but was instead made at a hearing when the mother acted in person [§7].
The approach to cases of alienating behaviours
Practitioners are referred to the Family Justice Council’s (FJC) December 2024 ‘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’. Before determining whether or not a parent has exhibited alienating behaviour with respect to the children, the court must determine any relevant allegations of domestic abuse that have been made. The judgment quotes paragraph 10 of the Guidance, which sets out that the court must be satisfied that three elements are established before it can 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.”
Children may withdraw from wanting a relationship with a parent for a range of reasons and the satisfaction of the first element does not necessarily mean that there are alienating behaviours.
Importantly, the judgment repeats the message of the Guidance that “The factual matrix around allegations of alienating behaviour is a matter for the court alone; it is not a matter for expert psychological evidence” [§45] and reiterates the approach to be followed in the use of experts [§46], including “the scrutiny of their regulation, their qualifications, and their access to psychological tests, given in Re C (‘Parental Alienation’)” and ensuring instructions and assessments are not framed solely in terms of allegations of Alienating Behaviours (to avoid confirmatory bias).
The modern approach to alienating behaviours is summarised at [§75]:
“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.”
Outcome
An order was made for Y to live with his mother. The findings of alienation were set aside (a discussion of the law relating to reopening findings of fact is at [§§32 – 36] and on the Part 18 procedure at [§§786 – 84]). The 2019 process had been fundamentally flawed when compared to the modern approach, and because the factual matrix had not been established before considering the expert evaluation [§§81 – 83].
Discussion
The judgment is essential reading for any case involving alleged alienating behaviours and/or the instruction of experts. For the latter, in practical terms, it demonstrates the importance of scrutinising expert CVs and making a complete Part 25 application with a draft letter of instruction.
Bradley v CM & Ors [2026] EWHC 125 (Fam)
This judgment of Poole J addressed a journalist’s application to access documents from four sets of private children law proceedings.
Facts
Jessica Bradley, an accredited journalist, applied for access to judgments, Cafcass reports, final orders, and psychological reports from four sets of private family law proceedings under FPR r.29.12. Ms Bradley had attended a hearing in one of the cases but not the others. All proceedings had been held in private. She also sought permission to publish and communicate contents of some of the documents under the inherent jurisdiction.
A transparency order had been made in one of the cases, but it did not allow access reports on the court file or permission to publish from those reports.
Dr Maria Downs, a Doctor of Clinical Psychology, had been instructed as an expert in all of the cases. Ms Bradley had previously published an article about Dr Downs’ approach to allegations of alienating behaviour.
Legal framework
Ms Bradley’s requests went beyond a standard transparency order and beyond the publication permitted under FPR PD 12R. Further, FPR PD 12R only applies when a reporter attends a court hearing in accordance with r 27.11 and PD27B and that hearing is a specified hearing [§42].
However, under r 29.12, a journalist was entitled to apply for permission to inspect any document on the court file (as is any other person who is not a party). Such access may be granted under the inherent jurisdiction. The reporter need not have attended the hearing.
The legal framework is extensive and Poole J ‘draws the threads together’ at [§58]. When considering access of documents on the court file, the starting point will be the open justice principle in which context the court will conduct a balancing exercise involving consideration of the specific rights claimed and the welfare of the child involved. The welfare of the child is a primary, but not the paramount, consideration unless the application itself concerns the upbringing of the child in which case it will be the paramount consideration [§58(ii)]. The granting of access to documents does not automatically give permission to publish the contents [§58(iii)].
Children’s voices
The children and young people who were old enough to express a view about the applications had an opportunity to do so. However, Poole J stated that “the exercise has left me with some reservations about having done so” [§99]. It had been difficult to protect confidential information about the children and the adult parties from others in their own case and the other cases. Poole J also noted that he must be cautious before accepting the children’s views as being wholly independent, especially in the context of these cases where there had been concerns about the influence of one or both parents on the children’s views and behaviour. There are also concerns about children becoming involved in further court proceedings.
Outcome
The applications were allowed.
When considering open justice, there is a strong public interest in understanding how evidence such as that of Dr Downs is used by the court in cases where alienating behaviours are alleged or arise for consideration.
It was not open to Poole J to direct other judges to publish their judgments, but it would be in accordance with the open justice principle for the relevant judgments to be provided to Ms Bradley and published in a suitably anonymised form. Not providing or publishing the judgments would be a significant interference with the Article 10 right of Ms Bradley. Protection of the welfare of the children concerned and protection of interference with their and others’ Article 8 rights would not justify a decision to refuse Ms Bradley access to the judgments or not to permit the publication of the judgments, provided that the judgments were suitably anonymised.
The reports of Dr Downs should be provided to Ms Bradley but it was necessary and proportionate to restrict publication of their contents. The summaries of Dr Downs’ conclusions and those parts where she responds to questions about child arrangements should be provided, but the balance shifts when considering those parts of her reports where she deals with her psychological assessments of individual parents and children so that those parts should not be provided.
Poole J urged courts hearing family cases to publish judgments [§88]. He also indicated that further guidance on applications such as those in this case would be helpful: “FPR PD12R does not cover situations when an accredited journalist or legal blogger has not attended a hearing but wishes to see documents on the court file and to publish from them and more generally in relation to the proceedings. It would be helpful to have guidance and/or a streamlined procedure to apply to such cases” [152].
Discussion
This case shows that practitioners need to be alert to the possibility of documents being requested by journalists even when the journalists have not attended those hearings. As Poole J states, the “tension between open justice and the protection of children’s welfare is not easy to resolve”, and further guidance on this issue would assist.
B v C & Anor [2026] EWFC 66 (B)
This judgment of HHJ Stott illustrates the very difficult situation of an older child refusing to attend contact even when the reasons for that are not justified in the court’s view.
Facts
The parents were in a relationship from 2008 to 2011/2012. The child was born in 2010. A final child arrangements order was made by consent in December 2012 which provided for the father to see the child on Tuesday afternoons and alternate Saturdays. However, contact between the child and her father ceased in 2021.
The father applied to enforce the 2012 order in 2022. At a hearing the mother agreed to an ICFA but a later order recorded that she refused to travel for the ICFA. The mother and child did not engage with the ICFA.
The mother failed to attend several hearings. The child was made a party to proceedings and a rule 16.4 guardian was appointed, but the guardian was never able to speak to the child despite efforts. Various orders were made, including warrants for arrest, but the mother still did not engage or attend court hearings. There had been at least 13 hearings on the enforcement application. The mother did not attend the final hearing.
The mother had filed statements, which set out “a clear position that E [the child] does not want to see her father and suffers from poor mental health” but which were also “abusive towards CAFCASS, the father and the local authority. She has made threats to go to the press. They are accusatory in nature and do not in any way show any understanding of the importance of proceedings and the likely damage caused to E by the mother’s own entrenched views and lack of engagement.”
The Cafcass Officer did not believe there was sufficient reason or justification for the child to be rejecting her father and little thought had been given by the mother to consider the child’s need to have a relationship with him. The mother had not allowed the social worker to speak to the child for the purposes of the section 37 report, and the child had been withdrawn from her school to be home-schooled.
It was concluded that threshold was not met to instigate public law proceedings, but the local authority asked the police to undertake a welfare check. There were no concerns documented by the police about the home conditions or the child’s presentation, but HHJ Stott noted that this is very different to a welfare check by a social worker.
The guardian ultimately recommended that proceedings end without orders. No criticism was levied at the father but there was no workable way for the child to re-establish a relationship with her father within these proceedings.
Outcome
The child is 15 years old and would turn 16 later that year. Rightly or wrongly, she has entrenched views. HHJ Stott did not know the extent to which the child had been influenced by her mother’s hostility towards the father but he thought it highly likely.
A change of residence or an interim care order were unlikely to succeed and would likely only create further rejection, anger, and hostility towards the father and paternal family. All avenues had been explored. However, the local authority were invited to make a fresh referral for consideration of a strategy meeting and for consideration for an ICPC to be convened.
HHJ Stott found that the mother had breached the 2012 child arrangements order but no order for unpaid work was made in the circumstances. No order was made on the father’s application for a child arrangements order.
Discussion
There is, unfortunately, a limit to how far the court’s powers can reach when a child is refusing contact (especially an older child) and/or a parent is refusing to engage. By acting as a warning as to what could occur, this case may be seen to support early intervention being necessary where a child is refusing contact for reasons which are not justified.
