More recently, HHJ Middleton-Roy decided a matter in  Re GB (Part 25 Application: Parental Alienation)  [2023] EWFC 150 . The decision considered an appeal of the lower Court, is a case management decision permitting the instruction of an expert.

The Appellant’s grounds of appeal were the following:

(i)     The Judge was wrong to order a psychological assessment, which invites the expert to determine the factual matrix of disputed allegations, contrary to the President’s decision in  Re C (Parental Alienation: Instruction of Expert)  [2023] EWHC 345 (Fam) ; 

(ii)      The Judge was wrong to order a psychological assessment of the parents and the children without considering the test of necessity under Part 25 of the Family Procedure Rules 2010; and

(iii)    The judge failed to give any reasons for ordering a psychological assessment

The Judge stated at paragraph 11:

‘the appellate Court should not interfere with an exercise of a Judge’s discretion, except if it is outside the generous ambit of discretion vested in the decision maker at first instance. We are here concerned with a judicial discretion and it is of the essence of such discretion that on the same evidence two different minds might reach widely differing decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and it is, in fact, wrong, that an appellate body is entitled to interfere’

Background: The guardian in the case following an appointment, applied for permission to put expert evidence before the court. The application was supported by the father but opposed by the mother. The court heard submissions on the contested issue and permitted the instruction of an expert to embark upon a global psychological assessment of the parents and the children. Further, as part of the application the judge approved the questions for the expert to address (paragraph 15).

The Key Questions were:

“ Please comment on whether the attitude of the parents towards the other is a positive or negative one, and whether in light of your assessment a relationship between the children and the other parent is fully supported. If not, how can this be changed?”

“ Please comment upon each of the parent’s ability to promote a healthy relationship between the children and the other parent, both in the past, currently and in the long term. If you believe that either parent has tried to alienate the children from the other parent, or has exhibited alienating behaviours, either deliberately or unintentionally, please comment on the impact upon the children; what work the parent or parents will need to undertake to remedy any such negative influence; timescales and cost.”

As part of the appeal, the Judge stated:  ‘it is plain to this Court that the attitude of the parents towards each other is a factual question for the Court to determine. It is not a question for determination by an expert assessment’.  The judge further went on to state in respect of the issue of an expert and the concept of parental alienation:

‘21. The expert was being invited expressly to provide an opinion about parental alienation. In the judgement of this Court, that is outside the expert’s remit. 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. It is the Court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert. The identification of alienating behaviours should be the Court’s focus, where it is necessary and demanded by the individual circumstances of the case for the Court to make such factual determinations leading to final welfare decisions for the child. 

22. In her second ground of appeal, the mother asserts that the Judge was wrong to order a psychological assessment of the parents and the children without considering the test of necessity under Part 25 of the Family Procedure Rules 2010. That ground of appeal must be taken together with the third ground, in which the mother asserts that the Judge failed to give any reasons for ordering a psychological assessment’

The Appeal was allowed.