Rethinking parental alienation: clarity and reform in family law

The landmark ruling in the case of Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150 has once again highlighted the need for judicial intervention in parental alienation cases, as well as the failure of the lower courts to protect victims and survivors of domestic abuse. Recent case law has led many experts to question whether it is time to ban the term parental alienation, and for the government to implement needed changes to restore confidence in the Family Court.

Re GB involved two children aged 12 and nine living with their mother following the parents' separation. The parties had been embroiled in a dispute for over two years, whereby the father was having indirect contact with the children. There had already been an expert assessment where the mother was found not to have a mental health disorder, and according to the assessment the father was ascertained to have "limited insight into his ability to think reflectively and empathetically about his children", and "elevated scores on narcissistic and histrionic personality, using coercive anger to manage his relationships". It was recommended that he engage in psychodynamic therapeutic work.

The father accused the mother of alienating the children, who were joined by the appointment of a Children's Guardian. He sought the instruction of a psychologist which was supported by the Guardian who made the Part 25 application for the instruction of a further expert to undertake a global assessment of the children and parents. It should be noted that the father was represented, as were the children through their Guardian, however the mother attended the hearing in person. The Judge agreed and allowed both the instruction of the expert and the questions that could be asked of them.

It was this order that the mother sought to appeal, securing a direct access barrister. She filed her appeal on the grounds that the Judge was wrong to order a psychological assessment contrary to Re C (Parental Alienation: Instruction of Expert) [2023] EWHC 345 (Fam) and without considering the test of necessity under Part 25 of the Family Procedure Rules 2010, and that the Judge failed to give adequate reasons for ordering it.

The mother's appeal was successful on all grounds. She proved that the decision of the lower court was wrong due to the procedural irregularity, and that it was a question of fact for the court to determine whether a child is being alienated by one parent, not the role of a psychologist. It was wrong for the expert to provide an opinion on parental alienation.

Experts instructed can be helpful, but regulation remains an issue. The courts are overloaded and there is lack of judicial continuity in most cases with courts unable to cope with the administration required – applications continue to go awry, and hearings are adjourned at the last moment due to lack of judicial availability. This case signals an important shift towards the court retaining control of cases, with the ability to determine fact rather than relying on the opinion of an expert.