O v C sparks calls to reopen family law cases involving unregulated experts

‘Parental alienation’ has been one of the most polarising topics in family law for many years. With ongoing debate about whether it’s a valid concept and how it should be applied in court, a particularly contentious issue has been the involvement of experts and professionals outside of the legal sphere — often (but not exclusively) psychologists.

While recent guidance from the Family Justice Council (FJC) has clarified the role of experts in current cases, growing attention is now turning to historic decisions where unregulated experts were instructed. The recent judgment in O v C has taken things a step further, reopening decisions on alienation made years ago and prompting calls for wider review.

Here, Eddy Davies explores what this means for those involved in children cases — not just today, but in past proceedings where allegations of alienation were raised and unregulated experts may have played a role.

FJC’s guidance on parental alienation

The recent FJC guidance aimed at improving consistency across courts, protecting children and victims from litigation abuse and delivering better outcomes for families.

A key focus was parental alienation syndrome (PAS) — a concept introduced in the 1980s that framed alienation as a psychological disorder in the child and was supposedly caused by one parent manipulating the child to reject the other. The FJC has now rejected PAS, describing it as “harmful pseudo-science” with no evidential basis.

Instead of diagnosing a ‘syndrome’, courts are now encouraged to assess specific ‘alienating behaviours’.

To conclude that these behaviours have occurred, three elements must be present:

1. The child is reluctant or refuses to engage with a parent or carer.
2. That reluctance isn’t due to the parent’s own behaviour towards the child or other factors like alignment or attachment.
3. The other parent has acted in ways that directly or indirectly caused the child’s rejection.

These behaviours — including blocking contact, badmouthing the other parent or pressuring the child — vary in intensity and can occur in both intact and separated families. However, the FJC notes that genuine cases of alienation are rare and findings should reflect that.

What was O v C about?

In 2020, a court removed children from their mother’s care following a finding of parental alienation that relied heavily on the expert report of an unregulated psychologist. The court concluded that the mother was preventing the children from having a relationship with their father and residence was transferred to him. 

In light of the recent shift in approach, the mother sought to have the findings of alienation overturned — arguing that they couldn’t credibly stand given the subsequent discrediting of the science and methodology on which they were based. The High Court agreed and allowed the case to be re-opened and re-analysed without reference to the original report.

Will all cases automatically be reviewed or overturned?

In short — no. As things stand, the family court won’t automatically re-open or overturn cases that involved these issues or this particular expert. It’s up to one of the parties involved to apply for a review and whether that application succeeds will depend on the circumstances of the specific case.

However, following the judgment in O v C, the advocacy group Right to Equality published an open letter to the Lord Chancellor, the President of the Family Division and Baroness Levitt. It calls for an urgent review of all private law family cases where a child was removed from a parent following findings of parental alienation by unregulated experts. Whether that happens remains to be seen. 

Will parental alienation still be considered by the courts?

Yes and no. While the term ‘alienation’ and the idea that there’s an identifiable syndrome are no longer used, the court will still carefully examine situations where a child refuses to have contact with a parent and consider whether that refusal is due to alienating behaviours. 

Allegations that a parent is obstructing contact won’t be completely disregarded but the approach will be different and the involvement of experts will now be handled with greater scrutiny.

Talk to us

We understand how emotionally challenging and disruptive a breakdown in your family unit can be — especially when you're trying to protect your children and make sense of the legal side at the same time.

Contact breakdowns — whether due to genuine concerns or deliberate obstruction — are among the toughest issues in private law. Resolving them often requires a multi-disciplinary approach but who’s involved and how they’re used must be handled with care.

Our experienced family law solicitors help you to navigate these challenges with compassion and a firm grasp of the latest legal guidance. 

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.