Approach in parental alienation case was “fundamentally flawed” and every agency was at fault, Family President rules

In Y (Experts and Alienating Behaviour: The Modern Approach), Re [2026] EWFC 38 (20 February 2026), Sir Andrew McFarlane concluded: “When held up against the modern approach to cases where there are cross-allegations of domestic abuse and alienating behaviour, together with the approach that should now be taken to the appointment of an expert psychologist in the Family Court, it can be seen that the course adopted in the present case, both as to case management and by the judge in making his core findings of fact, was fundamentally flawed and must be set aside.”

Outlining the case background, Sir Andrew noted that in December 2014, the parents of two young children separated and subsequently divorced.

Proceedings then followed in 2018, in which the father sought an order for the children to move to live with him. Allegations of abusive behaviour were 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, and without hearing from any other witness, 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 with their mother.

In early 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 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, following an order made by Lieven J, with a friend of the mother.

In April 2025, the children's mother issued an application under Family Procedure Rules 2010, Part 18 ['FPR'] seeking an order setting aside the previous findings of fact.

The final hearing of the Part 18 application took place before the Family President on 29 January 2026.

Before turning to the detail of the case, Sir Andrew stressed the following: “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.”

Turning to the 2019 proceedings, Sir Andrew noted that an application was made on behalf of the children's guardian for Ms Gill to be instructed as a single joint expert psychologist to undertake "a specialist family assessment".

The report of Melanie Gill was filed in September 2019. Four days later, the father issued an application for an immediate transfer of the children's residence to his home.

One week later, the mother applied for permission to instruct an alternative psychologist. That application was refused by District Judge G Smith, who had had no previous involvement in the case, but before whom the fact-finding hearing had been listed for the following month.

Sir Andrew observed: “In the appendix to her report, Melanie Gill describes 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'].”

At the conclusion of her report, Ms Gill found “extensive evidence” that the children were being actively “alienated” from their father by their mother.

The five-day hearing before DJ G Smith commenced with oral evidence from Ms Gill.

The judge invited submissions on the question of whether the court should hear from any other witnesses. The submission by counsel for the mother, was as follows:

“For the mother, it is asserted that there should have been a fact-finding before the expert was heard and before the children's guardian made a final recommendation. The allegations made by the mother, if found to be proved, must have an impact upon the shape of the case. It cannot be right, the mother says, that domestic violence and abuse - which she says she has suffered at the hands of the father - does not contextualise the mother's allegations and the effect upon her and the children. Those allegations are, in substance, of attacks and sustained physical and emotional abuse in respect of which there is corroborative police and medical evidence.”

Without hearing from any other witnesses, the judge concluded that the children had been alienated from their father.

Introducing the mother’s part 18 application, Sir Andrew said: “The application drew particular attention to the fact that the Family Justice Council (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.”

Turning to relevant caselaw, he said: “In Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam), I 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).

“[…] With regard to 'parental alienation', I made the following short, but hopefully very clear, observation:

“[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 Association of Clinical Psychologists-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.'”

Sir Andrew noted that 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.

He said: “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:

1. regulated by a UK statutory body; or
2. on a register accredited by the Professional Standards Authority for Health and Social Care; or
3. regulated by an approved regulator under the Legal Services Act 2007.”

He continued: “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. I refer 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 this court's 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.”

Regarding unregulated experts, Sir Andrew observed 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”.

He added: “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, I am 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 I 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.”

Turning more specifically to the issue of ‘alienating behaviour’, Sir Andrew summarised the ‘modern approach’ in the following 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, 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.”

Turning to the present Part 18 application to set aside the 2019 and 2020 findings, Sir Andrew said: “The essential substance of the grounds on which the mother now relies in support of her set aside application are not 'new'. They did not drop from a clear blue sky in 2023 and 2024 with the publication of guidance or the decision in Re C. Much of what is contained in the 'new' material was known of, or was part of developing good practice over the preceding period. What is new is the fact that that material, in particular the FJC guidance, has now been brought together, set out in a coherent form, been the subject of consultation and then endorsement by a multi-disciplinary group and the President of the Family Division.

“Against the yardstick of the approach which is now clearly set out, explained and justified within the FJC guidance, the process adopted in 2019 was fundamentally flawed.”

He continued: “I am driven to add a caveat which is that, new guidance or not, the fundamental flaw at the centre of this case is in reality a breach of basic and long established principle. […] The judge in the present case fell into a basic error by not establishing the factual matrix first, in particular whether there had been domestic abuse, and before considering any expert evaluation.”

Concluding the case, the President of the Family Division said: “When held up against the modern approach to cases where there are cross-allegations of domestic abuse and alienating behaviour, together with the approach that should now be taken to the appointment of an expert psychologist in the Family Court, it can be seen that the course adopted in the present case, both as to case management and by the judge in making his core findings of fact, was fundamentally flawed and must be set aside for the following reasons:

i) In circumstances where the court had decided that a fact-finding hearing was necessary to determine the 'extremely serious’ cross-allegations of 'severe domestic abuse and coercive control' [as described in the initial welfare report], any question of instructing an expert psychologist or filing a final s 7 report should have been postponed until the conclusion of the fact-finding process;

ii) In any event, it is now clear that an individual, such as Ms Gill, who holds themselves out to be a psychologist, but who is neither registered with the HCPC nor chartered by the BPA, should not have been instructed to provide a psychological assessment at any stage of Family Court proceedings relating to children;

iii) Ms Gill had no clinical practice, and she did not, therefore, see any children or families in circumstances other than contested court proceedings. It is, therefore, a matter of concern, notwithstanding that these proceedings took place prior to the decision in Re C and publication of the FJC guidance, that the proposal that Ms Gill should be appointed as the expert psychologist was made by the children's guardian and the solicitor for the children, and endorsed by the court;

iv) The submissions of the mother's counsel, as summarised by the judge (see paragraph 14 above), that the fact-finding should have preceded the expert evidence in order to 'contextualise the mother's allegations and the effect upon her and the children', were correct and fully in line with the modern approach. Those submissions should have been accepted by the judge;

v) The court, supported by the children's guardian and the solicitor for the children, was in error in directing that the expert and the guardian should file final reports, making recommendations, prior to any fact-finding hearing;

vi) The decision by the judge at the fact-finding hearing (a) to hear the evidence of Ms Gill first, and (b) to hear no other evidence before deciding that he accepted her analysis and recommendations, was a fundamental error.”

“For the reasons that I have now given, I directed that the key findings made in October 2019 and May 2020 should be set aside and not re-determined.”

Making final observations, Sir Andrew reiterated that the judgment is not 'about Ms Gill’.

He said: “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.”

Lottie Winson