Crisis in the family court

(Dr) Sue Whitcombe is a counselling psychologist who works with children and families.  She sits on the BPS Expert Witness Advisory Group and contributed to the updated BPS/FJC guidelines Psychologists as Expert Witnesses in the family courts in England and Wales. Her comments here are her own professional opinion, and should not be considered representative of EWAG.

There is a crisis in the family court. Every day, approximately 240 children in England are adjoined to the caseload of the Children and Family Court Advisory and Support Service (Cafcass, 2022).  Every year Cafcass works with nearly 150,000 children, and the trend is increasing. For 15,000 children their lives have been in the limbo of ongoing proceedings for more than a year. For 4,377, the duration is more than 100 weeks. The majority of these children are experiencing harm – or are at risk of being harmed. 

Despite assertions otherwise (Dispatches, 2021), the cases now found in private law proceedings are some of the most complex. The majority are no longer parenting disputes about how much time a child should spend with each parent. Many would not be out of place in public law, where matters of harm and safeguarding are usually addressed. The President of the Family Division, Sir Andrew McFarlane, has acknowledged the family court process itself is likely to further the harm endured by these children, leading to "long-term adverse emotional and relational damage." (McFarlane, 2022b, 2022a).

Increasingly, these cases involve allegations of domestic abuse (Ministry of Justice, 2020). Yet allegations of abuse are rarely a stand-alone factor in the lives of the children I work with. One of the few studies to have considered private law case files found allegations of domestic abuse extremely unlikely to be the sole concern raised (Womens Aid & Cafcass, 2017). 

Other factors included substance misuse, parental mental health, high conflict, child abuse, neglect, exploitation and abduction, and implacable hostility. In my own work, there are also neurodevelopmental considerations, family crises and transitions – such as bereavements, serious ill health, changing family structures and relocation. There are also parents who seem to be discouraging or preventing their child from a continued relationship with their other parent – often called parental alienation.

Given this complexity, practitioner psychologists who work with adults, children and families, are likely to be well placed to offer general, and family specific, expertise on how to improve outcomes for children. Yet the limited availability of psychologist experts is one of those factors contributing to delay in family court.  

This scarcity of psychologist experts became apparent to the judiciary during an exploration of the shortage of medical experts (Mr Justice Williams, 2020). Of the reasons given for reluctance to engage in expert witness work, issues of funding and payment, and criticism, including criticism by the media, were prominent.

There has been an increased focus by the media on a specific set of private family law cases – those where parental alienation is raised as an issue (Dispatches, 2021). Parental alienation is not defined in law, nor is it considered a psychological condition. Sometimes a parent engages in behaviours which are harmful to a child – precipitating the fracturing of that child's relationship with a good enough parent. When enacted consciously, these behaviours can be best understood as a form of post-separation coercive control intended to punish, intimidate, humiliate or harm a former partner by depriving them of a relationship with their child.

As with the Womens Aid & Cafcass study (2017), for most children, these parental behaviours are rarely a solitary factor in their lives. A child's experience in these circumstances cannot be divorced from its context, the system within which they live. An integrated, holistic, family assessment is necessary to answer the broad, open question – "What has happened to this child?" – and to make recommendations to improve their life going forward.

In recent years there seems to have been a move towards the indiscriminate use of parental alienation by the legal profession, and the public, to refer to almost any situation where a child is not spending time with a parent. This has been matched by an equally loud, dominant discourse, that allegations of parental alienation are predominantly deployed as a defence in family proceedings by men accused of domestic abuse (Ministry of Justice, 2020). It has been suggested (Saini, 2018, p.11) that the "narrow and polarizing gendered narratives mirror the inflexible, 'all or none' thinking of families" who seek out the court to resolve their child arrangement issues.   

Amid the recent media interest in cases where parental alienation is raised, investigative reporters have zoned in on the instruction of unregulated individuals who profess an expertise in this area (Summers, 2022; Summers & Campbell, 2022a, 2022b, 2022c). Given the need for a broad integrative assessment, there is a significant risk that a narrow alienation lens will fail to consider the range of hypotheses which might explain a child's presentation. There have been longstanding concerns around the lack of regulation around those offering psychological services to vulnerable people, and the lack of protection of the title 'psychologist'. For those who wish to challenge the conduct or evidence of these court instructed experts, there is no recourse to any quality assurance or disciplinary mechanism.

Earlier this year, the BPS in collaboration with the Family Justice Council (FJC), updated their guidelines Psychologists as Expert Witnesses in the family courts in England and Wales: Standards, competencies and expectations (FJC & BPS, 2022). These have been widely lauded and promoted by the Association of Clinical Psychologists (ACP), the BPS (BPS, 2022), the FJC, legal practitioners (Proudman, 2022) and the media (Summers & Campbell, 2022a) – especially in relation to cases where there is a suggestion of parental alienation or alienating behaviours. This guidance clearly states (as did the 2016 version) that courts should expect all psychologists providing evidence to family proceedings to be regulated by the HCPC or Chartered with the BPS. However, the court remains at liberty to approve the instruction of any individual it deems appropriate (Ministry of Justice, 2017).

Statutory regulation provides the public with some protection in terms of minimum standards, and an avenue to raise concerns. The quality of expert reports, however, may well be a matter we need to revisit, again, as a profession. More than half of the 294 legal professionals surveyed by Mr Justice Williams (2020) reported a decline in the quality of reports, with more concern being raised about psychologists than any other medical or health expert.

In my opinion, minimum standards are not enough in these complex family cases. Registration with the HCPC is not sufficient. The BPS/FJC guidance is clear – psychologist experts should be able to demonstrate specialist psychological knowledge and experience appropriate to the case. The guidance further recommends practice outside a solely family court context. 

When considering these complex cases, my view is that there needs to be a sound grounding in child and adult mental health, psychological functioning and attachment; current, or very recent, experience of integrated family assessments, systemic practice and family dynamics; and up to date knowledge around domestic abuse and safeguarding. 

Jaime Craig (2022) who is a Clinical Psychologist and member of the FJC, highlighting the problems with unregulated experts in alienation cases, has said they 'require exactly the same breadth of psychological assessment that you would in any other [family court] case, they are complicated, they are not less complicated.' The FJC (2022) have established a working group to develop guidance through each stage of the private law process as to how these complex allegations should be responded to by the courts, including the quality, form and nature of expert evidence.

I know of many excellent HCPC registered colleagues who are already engaged in this complex work within and outside the family court. The majority prefer to stay under the radar, quietly working away, bringing their expertise to these children and families so much in need. Many of us share anxieties of working with those whose psychological functioning means that complaints are not just a possibility, but a probability. It provides an added impetus (not that one is needed!) to ensure that we work ethically, exercising our duty of care alongside our duty to the court. 

Will the new guidelines from the FJC, the increasingly toxic, politicised landscape and heightened scrutiny which will inevitably accompany the proposed lifting of reporting restrictions in the family court (Tortoise & The Bureau of Investigative Journalism, 2022) encourage more of our practitioner psychologist colleagues to embark upon this expert witness work? Or do we need a more radical re-think on how we, as psychologists, can better meet the needs of these families in crisis?

Editor's note: Edits made 17/18 November, to section referencing Jaime Craig.

British Psychological Society. (2022). BPS urges courts to use regulated psychologists to protect children and families.

Cafcass. (2022). Board Meeting 5 October 2022.

Craig, J. (2022). Best evidence from psychologist experts: Lessons from recent cases - or when is a psychologist not a psychologist.

Dispatches. (2021). Torn Apart: Family Courts Uncovered. All 4.

Family Justice Council. (2022). Responding to allegations of alienating behaviour.

Family Justice Council, & British Psychological Society. (2022). Psychologists as Expert Witnesses in the family courts in England and Wales: Standards, competencies and expectations.

McFarlane, A. (2022a). BBC Radio 4 - Top Judge Sir Andrew McFarlane: One fifth of divorces wrongly ending up in court.

McFarlane, A. (2022b). When families fall apart, do they fall too easily into court? Courts and Tribunals Judiciary.

Ministry of Justice. (2017). Practice Direction 25B - The duties of an expert, the expert's report and arrangements for an expert to attend court.

Ministry of Justice. (2020). Assessing risk of harm to children and parents in private law children cases: Final Report.

Mr Justice Williams. (2020). The President of the Family Division Working Group on Medical Experts in the Family Courts Final Report.

Proudman, C. (2022). The danger and harm of unregulated experts in the family courts is an emergency.

Saini, M. (2018). An Evidence-Informed Approach to Parental Alienation (Webinar).

Summers, H. (2022, July 31). Court-appointed expert can be named in 'parental alienation' case. The Guardian.

Summers, H., & Campbell, B. (2022a, June 12). Parental alienation and the unregulated experts shattering children's lives. The Guardian.

Summers, H., & Campbell, B. (2022b, June 12). Questions over use of 'psychological experts' in parental alienation cases. The Guardian.

Summers, H., & Campbell, B. (2022c, June 19). Inquiry urged into 'parental alienation' court experts. The Guardian.

Tortoise, & The Bureau of Investigative Journalism. (2022). Reporting family courts: what's the state of play?

Womens Aid, & Cafcass. (2017). Allegations of domestic abuse in child contact cases.