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Psychologists in family law courts: the new guidance explained

Aug 25, 2023 | Uncategorised

Concerns have been raised over the years about the use of unregulated psychologists as expert witnesses in family law cases. In response, new guidance has been issued by the Family Justice Council and the British Psychological Society.

Psychologists can be brought in by family judges as expert witnesses. The concern has been that some of them lack the requisite training, accreditation and skills for the role.

It matters because the diagnosis and assessments that are made by expert witnesses can have far-reaching, profound consequences for children. A psychologist’s report can influence whether a child is placed in care or which parent they live with.

To take a recent example, a woman anonymised as “Helena” had her children removed after a psychologist convinced the judge that she had “alienated” them from their father. The psychologist in question was appointed by the court – but not approved by the regulator.

Meanwhile, Natalie Page of the Survivor Family Network has told the press that women – some of whom had experienced domestic or emotional abuse – lost their homes and life savings while fighting protracted court battles that ended with their children being removed.

And in 2022, the Association of Clinical Psychologists UK warned that mothers were having their children wrongly removed by court-appointed psychological experts.

The updated guidance reflects these concerns, stipulating that family judges need to justify the appointment of a psychologist.

Regulated or unregulated?

At this point, you might be wondering what the terms “regulated” or “unregulated” mean in relation to psychologists.

The distinction is between psychologists who are registered with the HCPC – a regulatory body that oversees health and care professions – and academic psychologists. This second group are researchers, not practitioners.

In practice, this means children in family law cases can be assessed by psychologists who wouldn’t pass muster in an NHS setting.

As the guidance’s lead author Dr Jaime Craig told The Guardian, “Were you to see a psychologist in the NHS you would only see a practitioner and not a researcher. There are lots of psychologists who do very interesting research but they are not qualified to make assessments and diagnoses – or deliver treatment.”

The guidance, then, aims to bring the courts in line with NHS standards of clinical competence.

What does the title “psychologist” mean?

A psychologist can be either a healthcare professional who treats mental health issues or an academic researcher. Psychology and psychiatry are separate disciplines.

The title isn’t protected. Anyone can apply it to themselves, whether or not they’re registered with the HCPC.

Only HCPC-registered psychologists are subject to statutory regulation. The updated guidance argues that only these psychologists should be appointed as expert witnesses by family judges.

The alternative is that potentially life-changing psychological reports are written by psychologists who lack the right accreditation, experience and skills.

What is an expert witness?

An expert witness is brought into a court case to provide an independent view of the case. In theory, they’re selected because they have the right qualifications, experience, certification and skills.

But knowing whether a psychologist is the right person for the job can be difficult in a relatively unregulated industry.

An expert witness psychologist spends time with the solicitor’s client and examines medical records. Their aim is to identify any psychological harm or disabilities and to recommend whether the child should have therapy. In severe cases, they can recommend that the child be taken away from a parent or family.

What is parental alienation?

A lot of the cases that have led to the guidance being updated centre on the concept of “parental alienation“. This is where one parent turns their child against the other. It has to be premeditated and unjustified to qualify as PA.

The consequences can be life-changing. Mothers (and sometimes fathers) can lose contact with their children once they’ve been accused of PA. All contact can be cut with the “alienating” parent while the child has therapy – a separation that can last for months.

Resumed contact hinges on whether the therapy was successful in the eyes of the expert witness and the judge. If a court orders the parent to pay for therapy, they face a stark choice: pay up or lose contact with their kids.

Combined with legal fees, the costs of therapy can stretch into the tens of thousands – and have the potential to ruin a parent’s finances.

There’s also a concern that an unregulated psychologist could stand to benefit financially by recommending therapy – for instance, by recommending their own or a colleague’s services.

The very concept of parental alienation is controversial. The term was coined by an American child psychiatrist named Richard Gardner in the 1980s and conceptualised as a “syndrome” – but it never made its way into the DSM.

There’s a tension between those who see parental alienation as a psychological diagnosis and those who see it as the result of identifiable alienating behaviour.

The “Re C” decision (2023)

A notable decision was made by Sir Andrew MacFarlane in February 2023.

The two children at the centre of the case in question lived with their mother after she separated from their father. One of the judges had found evidence of “coercive and controlling behaviour on the part of the father” – but then ruled that the children should live with him.

This ruling came after the judge accepted psychologist Melanie Gill’s view that the mother had “alienated” the children from their father.

The mother appealed, saying that Gill wasn’t suitably qualified and shouldn’t have been appointed.

Sir Andrew MacFarlane – the president of the Family Division of the High Court – dismissed the appeal, but drew attention to the laxity surrounding the appointment of psychologists.

He fell short of demanding reforms, saying it was up to the psychological profession and Parliament to regulate the industry. But he was firm on the point that whether a parent has alienated a child is a question for the courts to decide – not a psychologist.

It’s too soon to say what effect the new guidance will have on family law cases, but it’s another example of how this issue is receiving more attention and discussion. 

Are you looking for an experienced family solicitor in Harrogate, Leeds or Pontefract? Don’t hesitate to contact us for a free, no-obligation consultation.

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