Y (Experts and Alienating Behaviour: The Modern Approach), Re

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 are 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, and without the court having determined the mother's application for permission to appeal that she had lodged at the end of October, 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 of any sort with their mother. In the early part of 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, now aged 15, 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.

As long ago as 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. Unfortunately, it was not until November 2025 that the first substantive order made by a judge; that order transferred the application to the High Court for hearing. The final hearing of the Part 18 application took place before me on 29 January 2026. At the conclusion of that hearing I announced my decision which was that the key findings of fact made in October 2019, and consolidated in a further judgement in May 2020, were set aside. It was common ground between the parties that no purpose would now be served by relitigating the previous allegations and cross allegations that had been made. This judgment sets out my reasons for making that decision.

Before turning to the detail of the case it is necessary to stress that, 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.

In a welfare report in February 2019 a CAFCASS officer noted: “Both parents make extremely serious allegations about the other in terms of suffering from severe domestic abuse and coercive control from the other and I would suggest it needs to be determined by the court where the truth lies”. Whilst the report recorded that its author had used a tool for assessing whether parental alienation was a factor in the case, and found indicators that it was, the recommendation was nevertheless that the court should hold a fact-finding hearing. On the basis of that report, a fact-finding hearing was ordered. The children were joined as parties to the proceedings and a different CAFCASS officer was appointed to act as the children's guardian.

At a subsequent hearing, in April 2019, an application was made on behalf of the children's guardian for Melanie Gill to be instructed as a single joint expert psychologist to undertake “a specialist family assessment”. The parties have been unable to find any record of a formal application being made to instruct Ms Gill. The wording of the court order indicates that the application was made during the hearing, at which the father and the children were legally represented but the mother acted in person. The order provides that the solicitor for the children was to prepare a letter of instruction to be agreed three weeks later, suggesting that no draft letter of instruction was available at the hearing.

The report of Melanie Gill, to which I will turn in some detail shortly, 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. As his subsequent judgment explained, DJ Smith noted that, although the case was listed for a fact-finding hearing, directions had been given for the preparation of the expert’s report and the filing of the children's guardian’s final recommendations. The judge, therefore, concluded that the matter had been set down for a combined fact-finding and welfare hearing. In those circumstances he directed that he would consider the expert evidence before he considered anything else, and that the expert would give her evidence first at the main hearing.

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’].

Ms Gill’s main report is more than 100 pages long. This is not an appeal and, as I have indicated, this judgment is not solely related to Ms Gill’s involvement, who has played no part in this recent court process. I will therefore do no more than highlight key aspects of her contribution:

The report of the children’s guardian, which was filed after Ms Gill’s report, recorded the strongly expressed views of the two children but advised that:

In the ‘Professional Judgment’ section of her report, the guardian endorsed the findings and conclusion of Ms Gill and reported that they accorded with her own experience of the children. In that report, and prior to any evidence being heard at the up-coming fact-finding hearing, the guardian recommended that the children should ‘move to the care of their father as soon as possible’, with all communication between the children and their mother being prevented during a settling in period.

The five day hearing before DJ G Smith commenced with oral evidence from Ms Gill. It was then adjourned for some days in order for counsel to obtain further information. Ms Gill’s evidence was concluded on the 2^nd substantive day. At the conclusion of her evidence the judge asked whether, if the court were to find the allegations of physical abuse (including marital rape) proved, Ms Gill would want to review or alter her recommendations. Her answer was that she would not, as the factor that was ‘carrying on affecting behaviour and emotions … is the hatred for the father [which] is in connection with mainly the projected anger at the [maternal grand] mother’.

The judge invited submissions on the question of whether the court should hear from any other witnesses. The submission by Ms Fenella Cooil, counsel for the mother, as summarised at paragraphs 22, 23 and 24 of the judgment, is of note:

I have highlighted that summary because, in my view, Ms Cooil’s submissions to the judge were entirely correct and fully in line with the guidance that has subsequently been given by the Family Justice Council [‘FJC’], to which I will turn shortly.

Counsel for the father and counsel for the children’s guardian both urged the judge to hear no further evidence. The judge recorded the submission for the guardian as including the proposition that ‘if the report [of Ms Gill] is accepted, there is no point at all in the fact-finding hearing, because it would not affect the assessment of Ms Gill. Prior to her report, ... it was not apparent that there [was a] psychological reason for the difficulties with contact’.

In his judgment on 25 October, the judge summarised the procedural history, the submissions of the parties and relevant parts of the FPR and PD12J, before shortly expressing his conclusions at paragraphs 37, 38 and 39:

The mother’s counsel applied to the judge for permission to appeal, which was refused. The mother promptly issued a Notice of Appeal but, as I have indicated, the court did not list it for hearing until 2February 2020, by which time the children had been living with their father for two months. Permission to appeal was refused.

In the order made on 25 October, the judge made a direction under CA 1989, s 37 for the local authority to file a report. The resulting report, dated 22 November, aligned the local authority with Ms Gill and the children’s guardian by recommending that the children should move to their father’s care.

At a hearing on 18 December, at which both parents appeared as litigants in person, the court made orders under CA 1989, s 8 providing for the children to move ‘with immediate effect’ to their father’s care, and preventing the mother from having contact either child ‘until further order’. The matter was listed for a ‘review hearing’ in January 2020, at which the s 8 orders were confirmed. The relevant court order includes the following recital:

At the final hearing, over the course of 4 days, the judge heard each parent and their respective partners, in addition to the social worker and the children’s guardian. Arrangements were made more complicated by the intervening COVID lockdown. The judge delivered a reserved judgment on 18 May 2020 in which the focus was upon whether or not any contact should be recommenced between the children and their mother (there having been none for five months). The judge reviewed evidence of events since the children’s move to their father, including evaluating Christmas cards that the mother had sent to the children and a chance meeting in a local shop. He recorded the position of the mother, who was a litigant in person, as continuing the challenge the expert and professional evidence against her and seeking the return of the children to her care.

The judge stressed that he was reinforced in his earlier finding as to the validity of Ms Gill’s assessment and analysis because it had chimed with the contemporaneous, and in terms of the author of the s 7 report preceding, reports of the two CAFCASS officers and the local authority social worker. The judge made findings as to the recent events that had been in issue and he was critical of the mother for not undertaking Schema therapy. He noted that the mother had told the court that she had been undertaking some form of therapy, but had not given any details of this. He accepted that the children wanted to see their mother, but considered that this could not occur until she had undertaken the form of Schema therapy recommended by Ms Gill.

The judge therefore made orders providing for the children to continue to live with their father and to have no contact whatsoever with their mother or her partner. The contact order of 18 May is in plain terms: ‘the mother shall not be allowed any contact with the children [names] until further order.’ Prohibited steps and specific issue orders were made to consolidate those core arrangements.

In a schedule to his order, the judge set out a list of findings. Those from number 6 onwards were specific and related to events following the children’s move to their father and are not relevant to this application. Findings 1 to 5 were:

In 2021 the mother issued an application seeking to vary the child arrangements order. At a case management hearing, the court directed that the court would ‘not be dealing with any challenge to the report of Melanie Gill upon which the court relied in the last set of proceedings’. After a final hearing in April 2022, the mother’s variation application was dismissed, the existing child arrangements (including the no contact order) were maintained and the court imposed a prohibition on the mother (under CA 1989, s 91(14)) from bringing any further applications regarding the children, without the court’s permission, for the next year. Permission to appeal that order was subsequently refused.

In April 2025, the mother issued her current application under FPR 2010, Part 18 to reopen and set aside the findings made in 2019 and 2020 based on Ms Gill’s opinion. It is unfortunate that, for some six months, no active step was taken by the court with respect to the Part 18 application as it was passed between two different Family Court centres. On 10 November 2025, the case was transferred to be heard at High Court level. Thereafter, there were a number of hearings before judges of the Family Division in quick succession in order to meet the needs of the younger child, Y, who had departed from his father’s home on 13 November and travelled to be with his mother (with whom he had had no contact for over five years). On 14 November, Y was removed from his mother’s home at 4.00am, by the police using powers under CA 1989, s 46. He was then placed in a series of foster homes, before moving to stay with a family friend of the mother, whom Y had known in earlier times, pursuant to orders made by Mrs Justice Lieven on 27 November following a full hearing. Lieven J discharged the child arrangements, prohibited steps and specific issue orders made by DJ G Smith in 2020 and directed that the mother’s Part 18 application be heard by the President in January 2026.

The 27 November order made a s 8 child arrangements order for Y to ‘live with’ the family friend [‘Mrs M’]. Provision was made for Y to have visiting contact with his mother on an ever-increasing basis, so that by January he would be regularly spending up to 8 hours with her without supervision. By the time of the hearing before me in late January, Y was keen to move to live full time with his mother. Following the hearing on 29 January, at the conclusion of which I made an order allowing the Part 18 application and directing that the relevant findings made in 2019 and 2020 be set aside, notice was given to the father that the court intended to move on to consider Y’s future welfare and, in particular, whether he should now move to his mother’s care.

I am grateful to the father who responded very promptly, explaining his concern at the situation and describing any final welfare decision as premature if made before obtaining advice from the local authority social services. His overall position was that of neutrality, respecting, as he did, the fact that Y would shortly be 16 years old. The father did not seek to attend the hearing, either remotely or in person.

On the 30^th January, I was concerned that Mrs M, who currently shared parental responsibility for Y under the ‘lives with’ order, was not party to the proceedings and was not to be called. In the absence of input from either the local social services department or Mrs M, I made it clear that no final orders would be made. After a short adjournment, Mrs M was located and was able to join the hearing remotely. I am very grateful to her for doing so.

Mrs M gave a very positive report of the progress of contact and of Y’s clear wish to make this move, which had her blessing. The strength of Mrs M’s evidence was such that I did not consider it necessary to adjourn to obtain input from social services. The mother was, naturally, in favour of Y coming to live with her. The father had chosen not to engage directly with the court process, and had, with concern, accepted the reality that, for the present, Y did not want to return to his care. I therefore made orders discharging the s 8 order to Mrs M and replacing it with a child arrangements order providing for Y to live with his mother. It will go without saying, but needs to be said, that the role played by Mrs M by welcoming Y into her home, when he needed a haven apart from the homes of either his mother or his father, has been of crucial importance and of real benefit to this troubled young person. I was very impressed by the wisdom and child-focussed kindness that Mrs M readily demonstrated during the short time that she spoke to me during the recent hearing.

The mother has applied under Part 18 for findings numbered 1 to 5 made by DJ G Smith on May 2020 [see paragraph 24 above] and the earlier findings of October 2019 to be reopened and, once reopened, set aside. The application asserted that ‘very significant new evidence and information’ now existed sufficient to cast doubt on the earlier findings and justify reopening them. The new material was said to include the approach to ‘parental alienation’ taken by this court in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 and extensive guidance on alienating behaviours issued by the Family Justice Council in December 2024 [‘the FJC guidance’]. The application drew particular attention to the fact that the 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. The application further relied upon criticism of Ms Gill within the judgment in Re C and in the more recent authority of P v M [2023] EWFC 254 [see paragraph 57 below].

In the course of an impressively clear and full skeleton argument, Mr Justin Ageros, counsel for the mother, set out a summary of the law insofar as it is relevant to an application to reopen findings of fact in Family proceedings. This summary is accepted by those who act for Y, and I, too, agree that the law in this area is well settled and accurately described by Mr Ageros. It is not therefore necessary to do more than summarise the approach that the court must take.

It is agreed that the judgment of Peter Jackson LJ in Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316, having reviewed the existing authority, described the three stages of the court’s approach:

At the first stage, the applicant must satisfy the court that there are solid grounds for believing that a rehearing will result in a different finding; mere speculation or hope are not enough. At the third stage there is no pre-ordained ‘starting point’ or ‘evidential burden’ based upon the earlier findings. What is required is a re-determination of the facts with the court looking at all the evidence afresh and reaching its own conclusions, requiring the party seeking the relevant findings to prove them to the civil standard in the normal way.

The present application is focussed on the first stage only. In a more recent judgment of Peter Jackson LJ (Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465) described the first stage in some detail:

Relying on the approach taken by Judd J in a similar case (O v C [2025] EWFC 334), the mother submits that, if the previous findings are set aside, the court should not embark on stages 2 and 3 in the present case as there is now no benefit in the court undertaking a fact-finding of the parties allegations and cross-allegations, as they were in 2019, and, indeed, it would be impracticable to do so. The mother’s goal is, therefore, simply to achieve the setting aside of the earlier findings. Mr Ageros described how the mother has never accepted Ms Gill’s analysis, or the underlying assertion about her relationship with her own mother upon which it was based, and that the mother has undertaken a sustained and tenacious quest to have them set aside. Her refusal to accept the findings, and to engage in the recommended therapy, which would involve her acceptance of the findings, has led to her being estranged from her children for the past five years.

Soon after the Part 18 application was set down for hearing, the father sought the court’s permission to withdraw entirely from the court process relating to it. Rather than discharging him as a party to the proceedings (as he sought), I directed that he was released from any requirement to file documents or attend the Part 18 hearing, whilst stressing that he was free do so should he change his mind. In the event the father sent a substantial letter to the court shortly before the hearing, in which he set out his account of the history and maintained that the mother had ‘consistently abused and bullied’ him throughout the marriage and thereafter. Whilst he did not purport to follow recent legal proceedings regarding Ms Gill, he reported that her analysis in this case accorded with his own experience of the mother. He stressed that the judge’s decision to remove the children into his care was not based solely upon Ms Gill’s evidence, but that of ‘multiple CAFCASS officers and local authority social workers’, who were all of the same view. The father stressed that his son, Y, would be welcome back at any time, but he appreciated that that may not be possible until he ‘has seen this through’, a situation that caused the father a great deal of worry. He complained that there was an inequality of arms, as he is a litigant in person and the other parties are fully represented. He understood that the approach to psychological reporting may have moved on, but he held to the validity of Ms Gill’s assessment in this case.

On receipt of the father’s letter, the court, noting that although he had been released from any requirement to submit evidence or other material with respect to the Part 18 application he had now done so, asked him to clarify his position. My clerk’s message to the father was:

Y has had the benefit of being represented by a most experienced children’s solicitor, Ms Peggy Ray, since November and, in turn, by counsel Ms Jo Delahunty KC leading Mr Christopher Barnes. Y attended the hearing before me and, through his counsel, fully supported his mother’s application for the previous findings to be set aside.

The full title of the FJC Guidance (Footnote: ¹) issued in December 2024 is

Paragraph 10 of the guidance advises:

In order to make full sense of paragraph 10(ii) it is necessary to refer to the definition of AAA in the Glossary of Terms section of the guidance:

Paragraph 18 is in direct terms concerning cases of domestic abuse:

It is for the court to determine whether a fact-finding hearing is required in cases where domestic, or other, abuse is alleged. In making that decision, the court will apply the guidance applicable to any other case where domestic abuse may be alleged [Re H-N (Children) (Domestic Abuse: Findings of Fact Hearings) [2021] EWCA Civ 448; K v K [2022] EWCA Civ 468].

The factual matrix around allegations of alienating behaviour is a matter for the court alone; it is not a matter for expert psychological evidence. Any findings of fact once made will then, but only then, be important material for an expert or CAFCASS officer tasked with advising the court on issues of welfare [FJC guidance paragraph 76].

Chapter 7 of the guidance gives more detail of the approach to be followed:

In September 2023 the 2^nd edition of guidance was issued by the FJC and the British Psychological Society [‘BPS’] on ‘Psychologists as Expert Witnesses in the Family Courts in England and Wales: Standards, Competencies and Expectations’. The guidance is for use by those in the family justice system who may be involved in the process of instructing an expert witness in the field of psychology. It is relates exclusively to practitioner psychologists working within the remit of the Health and Care Professions Council (‘HCPC’) or academic psychologists chartered by the BPS. It would not, therefore, relate to an individual such as Ms Gill, who holds herself out as a psychologist but is neither registered with the HCPC nor chartered.

The guidance explains that [paragraph 3.1]:

At paragraph 3.5 the guidance points to the loose use of the formal sounding title ‘psychologist’, which may, in fact, be used by an individual who is neither registered nor regulated as a psychologist:

The guidance, which has the backing of the FJC, advises that only psychologists who are registered with the HCPC or/and chartered by the BPS should be instructed as ‘psychologists’ in Family Court proceedings.

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). The Association of Clinical Psychologists [‘ACP’] were permitted to intervene in the appeal but, in a manner that I described as fundamentally unsound, unfair and wrong, sought to abuse their position by mounting a root and branch critique of Ms Gill and her involvement in the proceedings. Part of the ACP submission was to assert that Ms Gill was not qualified to call herself a ‘psychologist’ or to act as an expert witness. In respect of that submission, I concluded that it was not supported by any firm legal authority, such as a statute, statutory instrument or regulation and that it could not be sustained.

On its own facts, the appeal failed and was dismissed, but in the course of the judgment I made a number of more general observations about the use of unregistered or unregulated experts in Family Court proceedings (paragraphs 86-102). I will not burden this judgment by repeating that extensive passage here, but, I hope, that it remains a detailed account of the legal and regulatory landscape, or lack of it, surrounding the use of the title ‘psychologist’ and the relevant regulatory scheme.

In short terms, whilst many, if not most, of those offering to provide psychological expertise are registered with and regulated by one or more of the relevant professional bodies, the reality is that anyone may call themselves a ‘psychologist’. The consequence is, as I recorded at paragraph 96:

The result was that the approach in 2023 to the instruction of a non-registered or regulated individual as an expert must, necessarily, be nuanced:

With regard to ‘parental alienation’, I made the following short, but hopefully very clear, observation:

One final matter relating to Re C requires clarification. At this hearing, the court was told that Ms Gill has used social media to claim that she was ‘exonerated’ by the judgment in Re C. If such a claim has been made by Ms Gill, she has fundamentally misunderstood the court’s judgment in Re C which was critical of her claim to any form of expert qualification and which strongly cautioned any court in the future from instructing an expert, such as Ms Gill, who is neither registered nor regulated. For the reasons that I have summarised, the hearing in Re C simply did not embark upon any detailed evaluation of Ms Gill’s involvement in that case; in lay terms, the question of whether or not she was open to criticism was simply ‘not put’. That situation obviously falls a good deal short of exoneration.

In P v M [2023] EWFC 254, Mrs Justice Judd conducted the final hearing relating to the future welfare of two children of secondary school age. The couple had separated when the youngest child was just 2 years old. The father then moved abroad, but had some contact back in England. Problems however soon developed and, following a fact-finding hearing, adverse findings were made in 2017 about the father speaking in a vile and unpleasant manner to the mother in front of the children. Contact had, however, improved, and orders for continuing contact were made at that time.

The arrangements soon failed and proceedings were re-commenced in 2020. The children were joined as parties, represented by a children’s guardian. Ms Melanie Gill was instructed to provide a global psychological assessment. The parents made cross-allegations, the mother claiming that he had been abusive to her and had behaved abusively to the children during contact, the father asserted that she had undermined his relationship with the children.

Judd J’s description of Ms Gill’s report and analysis is in similar terms to the present case, including identifying that the mother had unresolved traumatic loss with respect to her maternal grandmother, and complex unresolved trauma from life-event concerning her own mother. These factors were said to continue to influence her relationship with her children, and how she manages contact with their father.

Ms Gill concluded that the mother was ‘projecting the traumatic fear from her childhood onto the children within her current functioning’ and believed that the children were being harmed by almost any sort of contact with their father. The children have been affected vicariously. Ms Gill states that S is becoming ‘alienated’ from her father as a result of a combination of the mother’s unconscious behaviour and some negative experiences with the father. Ms Gill found that the father, also, was affected by unresolved trauma arising from emotional neglect by his parents.

Judd J was critical of Ms Gill’s approach, which based primarily on her assessment process, rather than an holistic overview of all the circumstances:

Although counsel for the mother (Mr Ageros) was critical of Ms Gill in cross examination and in submissions, Judd J, taking the lead from my judgment in Re C, declined to embark upon a critique of Ms Gill’s qualifications and standing as an expert. Judd J determined the issues in the case without giving any weight to Ms Gill’s analysis and directed that Parenting After Parting therapy should be provided to the parents, but by someone other than any recommended by Ms Gill and on the basis of the judge’s findings rather than any reliance on the assessment of Ms Gill.

In her judgment in O v C [2025] EWFC 334, Judd J determined a Part 18 application made, in similar circumstances to the present case, to set aside findings of fact that had been made by a district judge in reliance upon expert evidence from Melanie Gill. In her assessment, Ms Gill stated that the children had suffered emotional and psychological harm as a result of the mother’s parenting and would continue to do so if they returned to her care without the mother receiving significant and specific therapy. Ms Gill specifically found that the children were being actively alienated from their father by the mother. She recommended that the mother should engage in Schema therapy and that, until she had done so, there should be no unsupervised contact. In like manner to the present case, the judge had found that Ms Gill was correct in her evaluation. The children were removed from their mother’s care at an interim hearing and had had only limited contact over the ensuing five years.

Judd J summarised the legal context regarding an application to re-open findings, together with the decision in Re C and the relevant FJC guidance relating to allegations of alienating behaviour, which applied to her decision as they do in the present case. Judd J correctly made a distinction between any findings of fact made before the instruction of Ms Gill, which could be relied upon, and findings of alienation purported to have been made by Ms Gill, which:

Judd J concluded:

I have given emphasis to the absence of any findings ‘about how the mother actually behaved’ because, in so holding, Judd J’s approach was entirely correct in pointing out the lack of any sound foundation for the expert’s evaluation. This is a good example of the approach required by the FJC guidance, which makes plain that findings on significant and relevant allegations of domestic abuse might provide an understandable context for ‘a child’s appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent’.

Before Judd J, no party was suggesting that the issue of alienating behaviour should be relitigated, and the case therefore went forward for future decisions concerning the children’s welfare to be determined without reference to Ms Gill’s analysis or the judge’s findings that had been based upon it.

The final element that is topological note in this review of the current landscape surrounding the issue of the instruction of experts in cases such as the present is not yet fully formed, but has progressed sufficiently towards becoming part of the procedural law by the middle of 2026 so as to require at least passing reference in this judgment.

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. 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:

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, 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, which are to be set out in a short judgment. The need for rigour on the part of the court in identifying and approving the instruction of an expert is stressed; this being particularly so given the potentially confusing use of the title ‘psychologist’.

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. The ‘registered or chartered’ requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment.

The issue of alienating behaviour will, predominantly, arise in private law proceedings but, as this case demonstrates, a finding may lead to a radical dislocation of family relationships that is sustained over a period years. The expectation should be that the degree of rigour that is applied by professionals and the court in managing the instruction of an expert in public law proceedings, is similarly applied in private law proceedings of this nature.

Turning to alienating behaviour, having set out the ground in the early parts of this judgment, it is possible to summarise the modern approach in short terms:

One additional observation on process can be made. Those in the position of the mother in the present case may have a choice as to which procedural avenue should be used in an attempt to bring their case back to court in order to challenge findings of alienating behaviour made some years earlier. Whilst applying for permission to appeal, and an extension of time for doing so, is one option, it will in many cases not be the most appropriate. Firstly, there is the need to obtain an extension of time. Whilst in circumstances such as the present case, an extension of time should normally be granted, if it is refused then that is the end of the road for the application. Secondly, an appeal is something of a blunt instrument as, essentially, the appellate court can only allow or dismiss the appeal. It is not in a position to conduct any rehearing or any revised welfare evaluation. Thirdly, where the appeal fails then the prospect of an appeal against that decision, which would be a second appeal, faces a higher permission threshold.

For those reasons, it would seem that the better course is likely to be for those seeking to challenge such a finding to go back to the first instance court either under FPR 2010, Part 18, or to apply for past findings to be reopened as part of a substantive application to discharge or vary existing orders. Where an application of that nature is received by the first instance court, a decision will then be made as to allocation. There is no requirement that the application should be heard at the same level of judiciary, although there may well be benefit in going back before the original judge if he or she is available. In other cases, the course followed here, with the application being transferred to the High Court tier may be appropriate.

Turning to the first stage of the Part 18 application to set aside the 2019 and 2020 findings, the mother must demonstrate that there are solid grounds for believing that the previous findings require revisiting. I must be mindful of the need to balance the important public policy considerations one the one hand favouring finality in litigation, and on other making welfare decisions for children which are based on sound factual foundations. I must weigh up all relevant matters, including the nature and significance of the findings and the relevance of the new material that is now available. The question of whether a rehearing would result in a different outcome is not relevant here, where all concerned agree that a rehearing of the original allegations would be neither practical nor of value to Y’s future welfare. It all boils down to whether there are solid grounds for believing that the previous findings should be set aside.

I regard the approach of Judd J in O v C to be a correct working through of the required evaluative process when an application to set aside findings is made in the context of a case of this type. In like manner to the judge in O v C, I regard the findings of ‘fact’ made by the judge in the present case, which were in reality a finding that he accepted Ms Gill analysis, was based on a mistaken foundation.

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.

Having written the previous paragraph, 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. Like Judd J in O v C, who found that the judge acted on a ‘mistaken foundation’, 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. The submissions of mother’s counsel that that was what should have happened were spot-on. They were based on the long established principle that judges decide the facts and experts advise on the basis of those facts, and not the other way around as was, unfortunately, the case here.

Turning to detail, 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:

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. Any future consideration given by a court as to the welfare of Y, are to be evaluated without any reference to the report and evidence of Ms Gill or to those findings.

At the court’s request, the legal teams representing the mother and Y have proposed that the Family Justice Council be invited to establish a working group to investigate whether a more proportionate and less costly alternative to a full Part 18 application may be provide a more appropriate procedural vehicle for cases of this nature. The hope is that this process would address gatekeeping (for example by a High Court judge), allocation, funding (in light of difficulties in accessing ‘exceptional funding’), procedure and potential remedies. I am grateful for this proposal, which has my support and which I will now pass on to the FJC for consideration.

Although Melanie Gill has featured to a significant degree in this judgment, and in the three previous cases to which I have made reference, she has done so as the representative of a category of expert, rather than as an individual. I have said that this judgment is not ‘about Ms Gill’, and that is right. 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.