In my previous blog I discussed the issue of parental alienation. This issue has again been brought into public debate following the recent publication of the High Court Judgement in Re L (A Child) [2019] EWHC 867.

In this case, the President of the Family Division of the High Court dismissed an appeal against an order which had been made, transferring the residence of an 8-year-old boy from that of his mother and maternal grandmother in London, to that of his father and his new partner in Northern Ireland. In 2013, the mother made an application for the child to live with her, notwithstanding the fact that he was already doing so. Years of litigation followed.

In a report, filed and served 10 days before a final hearing in December 2018, the child’s guardian stated that, unless the mother could accept that the son was safe within the care of his father and that she and her mother had created an environment in which the child’s views of his father had been manipulated, she “would be inclined to consider more greatly that a change of residence is necessary.”

Several Cafcass reports had been produced during the years of proceedings. HHJ Tolson identified similar themes throughout them, namely, the importance of protecting the child from adult issues. Research into the effects of “persistent entrenched parental conflict played out by way of the courts” gave Cafcass officers confidence in their analysis in the later stage of proceedings to identify the same. It essentially brought the emphasis back onto the child where proceedings had become arguably very adult-focused.

In granting permission to appeal, Mr Justice Williams had identified three main bases of the mother’s grounds of appeal:
(1) procedural irregularity in that the child had not been asked with whom he wanted to live and in what country;
(2) that the decision to transfer residence was premature; and
(3) HHJ Tolson’s conclusions in respect of the balance of harm were wrong and insufficiently evidenced.

The mother argued that the child was able to express his wishes and feelings in a clear and meaningful way, therefore, he should have been asked direct questions regarding the potential move to Northern Ireland. On the contrary, the father identified that the welfare checklist under article 1(3) Children Act 1989, which Judges must apply in Children Act cases, refers to the “ascertainable” wishes and feelings of the child, not their “expressed” wishes. In cases, such as these, it is very difficult to ascertain the child’s wishes and feelings because their resident parent’s views have become so entrenched within them. Memories and feelings with respect to the other parent may be lost, something which could take a lifetime to recover. The Cafcass officer was therefore held to have exercised appropriate judgement in not asking the child such direct questions.

The mother’s counsel identified 11 less draconian steps the court could have taken, in submitting that the decision to transfer residence was premature. The father’s counsel, in contrast, argued that over-emphasis on the words “last resort” and “draconian” were misguided. In this case, the child was not only being denied contact but was being emotionally harmed in the maternal home. The correct test is, therefore, the welfare test (i.e. how would the child’s welfare needs be best met), which involved a balancing of harm exercise between the long-term emotional impact of remaining in the mother’s home, and the arguably short-term disruption arising from a move to Ireland. Research into this area had meant that Judges are better able to prioritise long-term welfare needs over short-term adjustment problems because the long-term impact of parental alienation is no longer abstract and uncertain.

How can these cases be better dealt with?

Practice Direction 12J introduced a presumption against interim contact orders where there are disputed allegations of abuse. Arguably, this provision has caused issues in parental alienation cases as, without contact with the alienated parent during the months or even years of litigation, alienation can become more entrenched. Undoubtedly, there is a careful balancing exercise to be undertaken here where allegations of domestic abuse exist.

Whilst in recent years, the view of many has been that skipping a fact-finding hearing will save costs and time in such cases, as these issues can simply be dealt with at a final hearing. However, this can create a false sense of economy. Without a fact-finding hearing, reports and statements will often be lengthy and time-consuming to produce as they will have to be prepared on the basis of two potential scenarios. In Re L, one of the reasons given for not asking the child a direct question regarding the move to Ireland was that any question would have been based on a ‘what if’ scenario. In short, an early fact-finding hearing will enable parties to narrow the issues which may, in turn, provide a platform on which parties can resolve issues amicably rather than through protracted court proceedings.

The early appointment of a children’s guardian in such cases and regular contact between the guardian and the child is crucial in building a level of trust whereby the child is able to express their wishes and feelings. It’s difficult for an adult to open up in such situations and logically, it’s over-optimistic to expect a child to do so effectively with a stranger they have no reason, in their minds, to trust. Of course, all of this would happen in an ideal world and unfortunately, in reality, resources are already stretched to their limit and the guardian may only meet with the child once during proceedings.

Early intervention is key in parental alienation cases to prevent the alienation from reaching irreversible levels. In cases where this has not taken place, serious thought needs to be given as to when Local Authority involvement would be appropriate. Historically, the Local Authority have viewed parental alienation as a private child issue and have therefore been reluctant to get involved, given their already scarce resources. There is now a common understanding that parental alienation is harmful and so where it has reached the requisite level of harm, it is the Local Authority’s duty to intervene. This could be beneficial because matters would be conducted within shorter timeframes, and the parents would be forced to recognise the impact of their behaviour and work together in changing it to meet the child’s needs.

In conclusion, family lawyers are now armed with evidence that parental alienation is harmful. Where, as is often the case, this is countered with allegations of domestic violence, action needs to be taken at an early stage to establish fact, and cases need to be dealt with efficiently to prevent cases from reaching a stage where the alienation has become so entrenched, that the court is forced to take ‘last resort’ action, without any real understanding of the truth rather than expressed wishes and feelings of the child.

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