In depth: Parental alienation in child custody cases

Last year, the president of the Family Division said there had been a ‘complete upsurge’ in family cases featuring allegations of ‘parental alienation’. There is no official data on its prevalence, but a recent analysis of published judgments by the Bureau of Investigative Journalism (TBIJ) indicated a tenfold increase in the past decade. 

New guidance for judges on how to approach the controversial concept was published last December by the Family Justice Council (FJC). It described ‘parental alienation syndrome’ as having ‘no evidential basis’ and as a ‘harmful pseudoscience’. Instead of an expert ‘diagnosing’ parental alienation, judges should look for specific behaviours, including ‘alienating behaviours’ to be determined (or not) as findings of fact. 

Safeguarding body Cafcass describes alienating behaviour as ‘how one parent or carer undertakes and/or expresses an ongoing pattern of negative attitudes and communication about the other parent or carer that have the potential or intention to undermine, manipulate or even destroy a child’s relationship with their other parent or carer’. 

The FJC guidance recognises that allegations of ‘parental alienation’ have been used as a form of post-separation control and abuse, and as a litigation tactic to silence survivors of domestic abuse – both parents and children. 

Meanwhile, the quality of expert witness evidence is under unprecedented scrutiny across multiple sectors. That scrutiny will increase in parental alienation cases after expert evidence was overturned in a landmark legal decision.

The challenge was brought by a mother against an unregulated psychologist who made a finding of ‘parental alienation’, leading to the mother losing custody of her daughters.

The ruling in question can now be reported after TBIJ secured a transparency order to publish details of the High Court case O v C. 

In 2020, a district judge accepted the assessment of expert witness Melanie Gill (pictured) that the mother was a ‘narcissist’ who had alienated her daughters from their father.

Days after Gill filed her report, the DJ ordered that the girls, then aged six and nine, should live with their father. The children were removed from the mother’s care the same day. For five years, the mother has only been allowed to see her children under professional supervision once a fortnight.

The High Court ruled in July that Gill’s evidence and the DJ’s findings that followed should be set aside because they were based on a ‘mistaken foundation’. Mrs Justice Judd pointed to subsequent case law and new guidance from the FJC published last December as underpinning her decision.

The mother’s barrister, Justin Ageros of 4PB, highlighted the 2023 case of Re C (Parental Alienation: Instruction of an Expert), in which Family Division president Sir Andrew McFarlane said ‘parental alienation’ is not a syndrome that can be diagnosed. Instead, he said the court should determine factual matters, including parental behaviours. 

'The findings of fact that the judge said he was making… were based on an uncertain and mistaken foundation' 

Mrs Justice Judd

This view was endorsed in the FJC guidance, which lists the points a judge should consider before making a finding of ‘alienation’, including ruling out other possible reasons for a child to reject a parent. These include domestic abuse. 

For the father, Judi Evans of St John’s Chambers said the DJ had not made ‘specific findings of alienation’ and had rather drawn conclusions about the mother from his own experience of her.

The High Court judge, however, said there was no material difference between what the DJ found in his judgment and a finding that the mother had alienated the children based on the opinion of Gill. In light of Re C, findings made before the involvement of Gill – including limited findings of domestic abuse against both parents in 2018 – should still stand, said the judge, stating: ‘Findings of alienation purported to have been made by Ms Gill cannot have that status, nor following that, can any findings that have been made by the [district] judge.’

The DJ was not to blame for his decisions because they predated Re C and the FJC guidance, but the High Court judge added: ‘Now we can see that in fact, the findings of fact that the judge said he was making… were based on an uncertain and mistaken foundation.’

Judd stressed that the DJ had failed to embark on a factual investigation of the mother’s specific behaviours. ‘Ms Gill carried out a [psychological] assessment of the mother… but that does not form a finding of fact about how the mother actually behaved,’ she said. ‘Therefore, there are no findings with a solid foundation that the mother alienated the children, even though the [DJ] expressed it as such, and accordingly, no findings to actually set aside.

‘I would go a step further and say that Ms Gill’s report is based very much on attachment science [a psychological framework explaining the strong, lasting emotional bonds humans form, particularly the crucial early bond between an infant and their primary caregiver]. 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.’

The issue of alienating behaviours in this case will not be re-examined. Instead, a fresh assessment will be carried out by Cafcass to determine what kind of relationship the children can have with their mother.

At a hearing last week, a circuit judge varied the arrangements under which the mother can see her children, meaning the fortnightly contact no longer needs to be supervised. 

Gill did not respond to requests for comment.

Hannah Summers is a senior reporter at TBIJ