How to manage cases involving Parental Alienation, and how to re-open them: Re Y (Experts and Alienating Behaviour: The Modern Approach)

On Friday 20 February 2026, the President handed down judgment in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38.

This important judgment involved the Mother of two children making a Part 18 application to set-aside Findings of Fact made in 2019 which included that she had alienated the children, and following which orders had been made which had resulted in her having no contact of any sort with the children from the end of 2019 until 2025.

Within the original proceedings the District Judge had been due to hear a Fact-Finding Hearing as to allegations of abusive behaviour by each parent against the other, however within the proceedings Melanie Gill, an unregistered and unchartered Psychologist, had given evidence as to Mother having alienated the children against the Father and the Judge then heard no further evidence and transferred residence of the children to the Father.

The manner in which the District Judge concluded proceedings without having heard further evidence, and in particular without determining allegations of domestic abuse was challenged at the time by Mother’s counsel, who had submitted:

“… there should have been a fact-finding before the expert was heard and before the children's guardian made a final recommendation. The allegations made by the mother, if found to be proved, must have an impact upon the shape of the case. It cannot be right, the mother says, that domestic violence and abuse - which she says she has suffered at the hands of the father - does not contextualise the mother's allegations and the effect upon her and the children. Those allegations are, in substance, of attacks and sustained physical and emotional abuse in respect of which there is corroborative police and medical evidence.

... The mother's case is only after the determination of the allegations should there be expert analysis...

The purpose of a fact-finding is to determine the underlying factual matrix. Unless that is determined, how can appropriate interventions be provided for the parties and/or the children? Miss Gill, the mother says, makes much of the mother's hatred for the father. That can only properly - that is my word, "properly" - be contextualised by a fact-finding hearing.'”

The District Judge however disagreed, and concluded matters at that stage, and ultimately an application for permission to appeal by the Mother was then refused.

As time went on however there has of course been increasing concern about the use of unregistered and unchartered Psychologists (as set out by the President in Re C ('Parental Alienation'; Instruction of Expert) [2023] EWHC 345, where he cautioned as to the use of Experts; but also as to the manner in which Parental Alienation was incorrectly asserted to be a syndrome capable of diagnosis, as opposed to behaviours which should be the subject of findings of fact.

Additionally, in particular in Re C, but even moreso in the December 2024 Family Justice Council ‘Guidance on responding to a child's unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’, the importance of determining underlying allegations of domestic abuse was highlighted. The President in this case drew particular attention to paragraph 18 of the Guidance, which states:

“'Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child's appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent.'”

It was these developments which led the Mother to apply in April 2025 to set aside the previous findings of alienation which had of course been founded upon the evidence of Melanie Gill, and which were arrived at in the absence of a hearing as to live domestic abuse allegations.

In fact there was delay in the matter being listed before it was ultimately heard by the President in January of this year, and in the interim:

• In O v C [2025] EWFC 334, Judd J determined a similar Part 18 application to set aside findings in a case in which Melanie Gill had reported and the approach as now set out in the FJC Guidance had not been followed (the proceedings pre-dated the Guidance itself), and found setting aside to be appropriate;
• The Victim’s Commissioner expressed concern about the use of unregulated Experts as set out in an Article by the Bureau of Investigative Journalism;
• In mid 2025 the Family Procedure Rule Committee consulted on proposed changes to the FPR 2010 relating to the instruction of unregulated experts, as the President described ‘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’. However, the President notes in Re Y at paragraphs 69-70, that whilst the Consultation has concluded the results have yet to be reviewed;
• In this case, as set out by the President, ‘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’. The judgment of Lieven J is reported as LM (A Child) (Interim Welfare Arrangements) [2025] EWHC 3243 (Fam) (10 December 2025).

Within his judgment on 20 February 2026, following the hearing on 29 & 30 January 2026, the President began the concluding section of the judgment by giving firmer guidance as to the use of unregulated and unchartered Experts, stating (at paragraphs 72-73):

“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 President then helpfully summarised the modern approach to alienating behaviour (at paragraph 75):

1. “As the full title to the FJC guidance makes plain, the reason for the court's investigation should be 'a child's unexplained reluctance, resistance or refusal to spend time with a parent', rather than the allegations that one or other parent may be making against the other;
2. Where a child is reluctant, resisting or refusing to engage in a relationship with a parent or carer (element (i) of the three elements in paragraph 10 of the guidance), then the court's focus will move to element (ii) to consider whether that reluctance, resistance or refusal is a consequence of the action of the estranged parent, where it is alleged that that parent has been abusive to the child and/or caring parent;
3. If it is found that the estranged parent has not behaved in a way in which the child's reaction can be seen as an 'appropriate justified reaction' [AJR] to such behaviour, or, for other reasons, it is found that the child's reaction is not caused by any factor such as a child's ordinary alignment, affinity or attachment [AAA] to the parent with care, then the court will move on to element (iii);
4. It is only at the stage of element (iii) that the court will focus on whether the caring parent has engaged in alienating behaviours that have directly or indirectly impacted on the child, leading to the child's reluctance, resistance or refusal to engage with the estranged parent.
5. Thus, where domestic abuse is alleged, and there is a cross-allegation of alienating behaviour, if a fact-finding process is required, the focus of the fact-finding must be to first determine the issues of domestic abuse and secondly to consider whether the child's refusal to engage with the estranged parent is an 'appropriate justified reaction' to any abusive behaviour, or that what has occurred is the result of protective behaviour or a traumatic response on the part of the victim parent.
6. Courts should not follow the route adopted by the judges in O v P and the present case in determining the issue of alienating behaviour on its own and without determining the underlying facts and, where it is alleged, the primary issue of domestic abuse;
7. Courts should not appoint an expert to advise in cases where a child is reluctant, resistant or refusing to engage with a parent unless and until there is clarity and, if necessary, facts that have been found, as to the parents' past behaviour towards each other and the child and, if domestic abuse is proved, whether the child's reaction to that behaviour is an appropriate one.”

Turning then to what can be done when past conduct of cases has not been in line with current Guidance, at paragraphs 76-77 the President compared the relative advantages of appeals out of time or applications to set aside or re-open pursuant to FPR Part 18 and concluded (at 77):

“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.”

As to this case, the President was clear that the submissions of Mother’s counsel in 2019 had in fact been entirely correct, and the judicial process was fundamentally flawed and findings should be set aside. Given the circumstances of the parties in this case now, they do not require re-determination.

Interestingly, the President took the opportunity to note that whilst the relevant Guidance etc may be from 2023/2024, in fact the correct approach had been formulating for some time in the preceding period.

A point to look for in future is that the President was invited to consider a more streamlined approach to re-opening cases which involved allegations of Parental Alienation which had been mishandled, and he notes (at paragraph 85):

“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.”

Re Y marks a milestone in the development of the Court’s thinking about cases involving alienating behaviours and goes some way to re-dressing past errors. Plainly however, whilst now seeking to correct matters, the true sadness is the time that has elapsed for all in this particular family, and the question is the extent to which there are other families whose cases may have been similarly mishandled.

If you have a case involving such matters and seek guidance or representation, please do contact the 42BR Private Law Team.

Case note provided by Sophie George-Moore and Mark Chaloner. 

24th Feb 2026

Mark Chaloner

Call 2002

Sophie George-Moore

Call 2024