Unregulated experts can cause harm to children in family courts in England and Wales

Unregulated experts appointed by family courts in England and Wales have caused harm to children by separating them from their mothers and forcing them to live with and have contact with fathers accused of violence and abuse, according to a new study by a UCL (University College London) researcher.

The study, published in the Journal of Social Welfare and Family Law, describes three devastating cases where older children (aged nine to 17) were removed from their mothers against their will, and were forced to live with their fathers despite allegations and sometimes court findings of abuse.

These family court orders were made on the advice and guidance of unregulated experts who proposed to have identified so-called “alienation” – or that the mother was manipulating the children and had unjustly turned them against their father.*

In one of the cases analysed, two children were removed from their mother to live with their father and undergo a “therapeutic residential reunification plan”. The children, who had described coercive and controlling behaviour from the father, escaped in the middle of the night by smashing and jumping through a first-floor window.

In another court case, two children were forced to live with their father and saw contact restricted with their mother despite a previous court having determined that their father had been “coercive and controlling”.

The author Dr Sonja Ayeb-Karlsson (UCL Risk & Disaster Reduction, UCL Everyday Disasters and Violences Research Group) said: “In these shocking cases, the children expressed clear wishes to stay with their mother but were ignored. Once they had been labelled as ‘alienated’, they ended up legally entrapped with their voices silenced and thereby unable to influence proceedings determining their lives.

“These cases show the harm of the ‘alienation’ belief system, which has become a legal weapon that serves to punish and control those who speak up about their lived abuse experiences. They also show the potential harm of the family court-appointed ‘experts’, unregulated as well as regulated, who claim to be trained and able to identify so-called alienation.

“In the analysed case law, the courts went to brutal lengths to reconcile children with their fathers despite the children’s feelings and fears related to living with them.

“We do not know how common these alienation treatment plans and interventions are, but six children are six children too many to be coerced and have their rights violated in this way.

“We must ensure that these High Court cases serve as a cautionary tale rather than providing us with a window into the future conduct of our family courts.”

An unregulated expert is someone who is not registered with and controlled by the Health and Care Professions Council (HCPC). Currently, the HCPC only regulates a few specific psychologist titles such as “clinical psychologist”, meaning that titles such as “psychologist”, “child psychologist”, and “family psychologist” are not protected and there are no legal requirements for using them. “That poses a risk to the public as family court users may be persuaded into believing that a professional put forward in the court is clinically trained to assess and diagnose their children,” said Dr Ayeb-Karlsson. “Unregulated experts should not be guiding the courts on something as valuable as our children’s futures.”

Other actions that could minimise future risk to children, Dr Ayeb-Karlsson said, were a cap on experts’ fees, more transparency in family courts, better evaluations and control of health professionals assessing and treating children through the family court system, and an end to the use of the alienation belief system in court.

The study noted that unregulated experts may seem better placed to be instructed by the family court than regulated psychologists by, for example, calling themselves “child psychologists” who specialise in assessing children.

Cases

In one case, not reported by the media, two girls aged 11 and 13 were ordered by the family court to have contact cut with their mother and moved to the residence and care of the father for 90 days, despite the girls alleging coercive and controlling behaviour including digital surveillance, physical and sexual abuse. The older girl, Z, had previously called mental health emergency services providers from her father’s bedroom, saying she would hang herself if she was unable to go home to her mother.

The plan was proposed by an independent social worker, who moved in with the father and the girls to facilitate their so-called reconciliation. The treatment plan ended disastrously after five days when the sisters escaped by smashing and then jumping through a first-floor window. They were found by roadside workers in the early hours of the morning and transferred to police custody.

A number of judgments later, following a period in foster care and efforts to enforce contact with the father while limiting contact with the mother and her social network, Z was allowed to return to her mother but only after an extended period of suicidal ideation and self-harm, while her younger sister X was allowed to live with the parents of her mother’s new partner as also she was refusing to stay in the father’s care.

In the final High Court judgment, the judge criticises the label of “parental alienation”, saying it had been “thoroughly unhelpful, by embedding conflict” and a sense that one parent was right and justified and the other parent was wrong and had acted inappropriately. She lamented that “somewhere in the history of this case we have lost our humanity”.

In another case described in the study, two children aged nine and 12 were removed by the family court from their mother to live with their father on the grounds of “alienating” behaviour towards the father.

This was despite a district judge previously finding that the father had been “coercive and controlling” towards the mother, with “considerable emotional abuse” in their relationship, indicating the children’s rejection of their father may have been appropriate.

The order also went against the wishes of the children, one of whom had described their father as drunken and violent and alleged they had been hit by him.

The order was made on the advice of another unregulated “parental alienation” expert and the use of a tool from England's Children and Family Court Advisory and Support Service (Cafcass) that is intended to assess whether “alienating” behaviour is causing or contributing to a child’s refusal to see a parent.

Dr Ayeb-Karlsson said: “It is unclear why the Cafcass Alienating Behaviour Tool was applied in a case where the court had made findings of coercive and controlling behaviour, as Cafcass work according to a framework that acknowledges the existence of domestic abuse as reason for justifiable resistance by the children.

“We may also argue that Cafcass should abandon the use of any working tools and checklists that incorporate the ‘alienation’ belief system, especially after the progress made by the UK Government with the 2021 Domestic Abuse Act, the UN Special Rapporteur on Violence Against Women and Girls report on custody violence published last year, and the wonderful progress made by Cafcass this year through their new approach to dealing with domestic abuse cases.”

The family court also ordered the children to continue seeing a therapist with their father, despite the older child, B, saying the therapy was “making things worse, not better”, as their father had not owned up to what he had done.

In the third case described in the study, two children aged 14 and 11 were forced to move in with their father despite the mother having disclosed a history of abuse by him, including against the children. Their relationship with their mother was also severely damaged due to a no-contact order from the court.

The children wrote a letter to their school alleging physical and emotional abuse – “he hurts us physically and breaks us mentally” – but the judge overseeing proceedings stepped in and hindered the Metropolitan Police and social services from appropriately investigating and interviewing the children on the grounds that he had already deemed the allegations to be unfounded. This decision was thereafter overturned by the Court of Appeal.

After almost two years, the children’s feelings were reported to have changed, or their hopes to reunite with their mother lost, as the final order concludes that they are happy and content with their father’s care. The study notes that the court-induced estrangement from their mother “did not cause the same concern and urgency as their previous ‘estrangement’ from the father”.

The peer reviewed article is the first of its kind to investigate the experiences of the so-called “alienated child” facing “reunification interventions” in the family court system in England and Wales. The author points to a serious gap in the research of studies investigating family court experiences from the point of view of the child.

The legal narrative case law study was published in a special issue of the Journal of Social Welfare and Family Law dedicated to the pioneering feminist family law and legal scholar Professor Felicity Kaganas of Brunel University London, edited by Professor Alison Diduck (UCL Laws) and Dr Adrienne Barnett of Brunel University London.

* The highly contested concept of “parental alienation” was criticised last year by the UN Special Rapporteur on Violence Against Women and Girls, who called upon governments to ban the use of the label in custody and family law proceedings, citing “the tendency of family courts to dismiss the history of domestic violence and abuse in custody cases, especially where mothers and/or children have brought forward credible allegations of domestic abuse, including coercive control, physical or sexual abuse”.