Private children: Desperate measures
December 2022 | Sehra Tabasum
Although it is recognised that a transfer of residence may cause short-term emotional harm to the child, the court may conclude that this is preferable to prevent further parental alienation.
Sehra Tabasum reviews the approach to cases involving parental alienation and the circumstances in which a transfer of residence may be ordered.
Although it is recognised that a transfer of residence may cause short-term emotional harm to the child, the court may conclude that this is preferable to prevent further parental alienation.
The most heart-wrenching part of a relationship breakdown is when parents lock horns about decisions regarding how much time their child spends with each parent or with whom the child should live. A once-happy family deteriorates into hostility.
As practitioners know, parents must focus their energy on acting in the best interests of their child. However, often the negative behaviour exhibited by the one parent undermines the child’s relationship with the other parent and this can cause the child to want to decrease or even stop time with the non-resident parent and become focused upon ensuring that the resident parent is shown ‘loyalty’.
It is this intractable hostility which, along with the parents’ inability to distinguish the impact such behaviour has on their child, creates parental alienation.
Definitions and examples
Cafcass has defined parental alienation as ‘when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’ and the Court of Appeal in Re S (Parental Alienation: Cult) [2020] felt this definition was sufficient, but added to it that the manipulation of the child need not be malicious or even deliberate and it is the process that matters (para 8). Motive is important and can inform the court’s decision.
Examples of parental alienation include:
- the inappropriate involvement of the children in adult matters and discussion of the circumstances of the parents’ relationship and ongoing differences of opinion;
- repeated denigration of the non-resident parent to the child by the resident parent and encouraging the child to share these views with third parties – this can include telling the child that the other parent does not love the child, or that they care more about their new partner; and
- a parent unconsciously projecting their own feelings onto the child, for instance ‘reassuring’ the child about contact with the other parent, saying things like ‘don’t worry, you’ll be home soon’, ‘it’s only for a night’, ‘you can ask to come home’
King LJ defined intractable hostility in Re B (a child) [2016](at para 10), where she explained that:
Implacable hostility is exactly that: a case where one parent has become (usually irrationally and for poor motives) implacably opposed to contact taking place between a child and [their] absent parent. That is... very different from a case where a child has become alienated from a parent.
Examples include the resident parent not believing that the non-resident parent is willing or able to provide an adequate standard of care ie, the other parent lacks basic parenting skills, or it may take the form of criticism of a valid parenting style that differs from the style favoured by the resident parent. For example, if one parent is stricter than the other in relation to the use of electronic devices, bedtime, or mealtime routines.
It is therefore possible to differentiate between the two concepts:
- Parental alienation arises where a child is resistant to a relationship with a parent for no particularly valid reason, generally with the encouragement of the other parent
- Intractable hostility is a refusal to allow contact with a parent even though the children may welcome it
Courts’ approach
In any decision relating to child arrangements, the courts take seriously any allegation of intractable hostility and parental alienation, as ‘the child’s welfare is the court’s paramount consideration’ (per s1(1), Children Act 1989 (ChA 1989). If the child is being alienated, then the longer that is allowed to continue the longer the emotionally abusive situation for the child will continue and the more difficult it will be for the damage caused to be undone.
The courts will usually list an early fact-finding hearing to ascertain whether the allegations made are true, on the balance of probabilities. An order under s7 or s37, ChA 1989 for a welfare report is likely to be directed and in addition to an s7, ChA 1989 report, other expert evidence may be of benefit, for example from a child psychologist.
There is an obvious difficulty in how to approach children’s wishes and feelings in an alienation case. The expressed views of the child are likely to be those of the alienating parent, rather than the child’s own. The checklist at s1, ChA 1989 requires the court to have regard not to the expressed wishes of the child, but to the ascertainable wishes and feelings considered in the light of the child’s age and understanding.
The court is likely to be heavily reliant upon the observations of any instructed expert who will be able to navigate the responses of the child and give better understanding as to their context.
Joining the children as parties to the proceedings so that they are represented by a guardian, pursuant to r16.4, Family Procedure Rules 2010 (FPR 2010), should not be delayed where necessary. FPR 2010, PD 16A sets out guidance on the circumstances which may justify making the child a party, which includes (at FPR 2010, PD 16A, para 17.2(c)):
...where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute.
The court has a positive duty to promote contact. However, if alienation is found to exist, the remedy ordered by the court will depend upon an assessment of all aspects of the child’s welfare, and not merely those that concern the relationship that may be under threat. The court must consider the evidence, not to determine who is the ‘guilty’ party but to determine how the interests of the child can best be met going forward.
If conclusions are drawn regarding a parent’s behaviour, the courts will first reason with the parent and seek to persuade them to take the right course of action for the best interests of their child. The court will only make orders where necessary (s1(5), ChA 1989).
The extreme option, when it comes to intractable contact disputes or parental alienation, is for the court to change a child’s living arrangements, so that they move from one parent’s home to the other, and case law has increasingly demonstrated the courts’ willingness to do this in recent years.
The courts have also on occasion made conditional residence orders, providing that the resident parent must facilitate contact in accordance with the order or else the residence of the child will be transferred.
Case law
Re H (Parental Alienation) [2019]
The decision in Re H illustrates the consequences a parent may face if it is concluded that parental alienation has occurred. The court was concerned with a child aged 12 who lived with the mother. The parents had separated in 2007 and up until March 2018 the child enjoyed a vast amount of time with the father and the paternal family. However, following deterioration in the mother’s relationship with the father, the mother ceased contact and initiated ChA 1989 proceedings alleging domestic violence by the father. Several reports were prepared by the local authority alongside a report of an independent social worker. All allegations were dismissed against the father.
On expert assessment of both the parents and the child, it was reported that the child’s presentation suggested he was ‘triangulated within his parents’ conflictual
relationship’ and was ‘prioritising his mother’s needs over his own’, with the child’s ‘lack of ambivalence... more likely to be alienation than estrangement resulting from his father’s behaviour’ (para 11). Keehan J accepted the findings of the psychologist without hesitation and found that the mother had alienated the child, concluding the absence of the father from the child’s life had caused and would cause the child harm. Consequently, the court transferred the residency of the child to the father and made an order for the mother to have contact with the child.
It is therefore incumbent upon any parent to ensure that a child has a meaningful relationship with both sets of parents unless, of course, there are serious welfare issues which cannot be ignored.
Re L (A Child) [2019]
In Re L, the court sought to resile from the commonly used phrase that a change of residence is ‘a weapon or tool of last resort’, with McFarlane P stating (at para 59) that:
The test is, and must always be, based on a comprehensive analysis of the child’s welfare and a determination of where the welfare balance points in terms of outcome.
An interesting aspect of Re L was its consideration of the appropriate ‘threshold’ for a change of residence (at para 59), when McFarlane P said:
Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as ‘last resort’ or ‘draconian’ cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the [s1(3) ChA 1989] welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs.
Although it is recognised that a transfer of residence may cause short-term emotional harm to the child, the court may conclude that this is preferable to prevent further parental alienation. This occurred in the following cases:
Re A and B (Parental Alienation No 1) [2020]
Here, the mother made allegations against the father in relation to their children in November 2018. She applied to vary a previous order, but this was refused. Shortly after, child B refused to go to the father’s home and contact deteriorated. The first time the case came before the High Court, the mother admitted to making up stories and admitted she had gone too far. The court recognised that although the children loved their mother, she caused them emotional and psychological harm by alienating the children from their father. The judge was concerned that there would be future alienation which would prevent any ability to repair the relationship with the father. To prevent this further alienation, the judge had to find a balance which resulted in ordering the children to live with the father.
When the case appeared before Keehan J again, he considered whether it would be appropriate to ascertain the wishes and feelings of the children, but said ‘given the damage [the children] had suffered their real and true wishes and feelings could not be established’ (as referred to at para 2 of the later judgment in that case, Re B (Children: Police Investigation) [2022]). Furthermore, he accepted the expert’s opinion that asking the
children what their wishes and feelings were would cause more harm and detriment to their welfare.
Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020]
In Re S, the child was born in 2011 and her parents separated before her first birthday. The mother joined an organisation called Universal Medicine and started following their practices. In 2015, the father raised concerns about Universal Medicine and their child’s involvement with the organisation. The mother raised concerns about the father sexually abusing the child. In 2017, two orders were made: a shared care child arrangements order and a prohibited steps order. The latter was put in place to prohibit the mother from taking the child to any Universal Medicine events, talking about Universal Medicine, or imposing Universal Medicine teachings on the child.
In 2018, the father alleged that the mother had not adhered to the prohibited steps order. Later that year, the Australian courts found that Universal Medicine was a ‘socially harmful cult’ and that the leader had ‘an indecent interest in children’. The father issued an application in 2019 to vary the 2017 shared care order so that the child would live with him.
An independent social worker reported that she did not think the mother understood the significance of the concerns about Universal Medicine. It was feared that the child was at risk of becoming alienated from the father. The father’s 2019 application was however refused as there was concern about the unsettling effect of further change on the child. The father appealed.
In his judgment, Williams J said that ‘the child’s expressed views are that she wishes to remain living with the mother’, but that these views were (para 63):
...the subjective result of exposure to harmful beliefs and practices which have led to her alienation from her father and her enmeshment with her mother.
Furthermore, the mother was unable to properly disassociate herself from Universal Medicine. Consequently, Williams J accepted that the short-term harm and distress to the child by transferring residence to the father was outweighed by preventing further alienation of the child to her father.
This case also made clear that a change of residence is not to be considered as ‘a last resort’. The judge must consider all the circumstances and choose the best welfare solution.
Conclusion
It appears that the courts are more frequently ordering the transfer of residence in cases where there has been parental alienation. In coming to a judgment, the judge might balance the short-term harm of being placed with the parent who has been alienated, with the mid and long-term benefits of spending time with that parent and building a relationship back up.
Although the courts are obliged to have regard to the ChA 1989 welfare checklist, judges are recognising that it is not always possible to ascertain the wishes and feelings of the child. This could be because the views do not reflect the true wishes and feelings of the child and/or that attempting to ascertain the child’s wishes and feelings can cause further harm.
Cases Referenced
Re A and B (Parental Alienation No 1) [2020] EWHC 3366 (Fam) Re B (a child) [2016] EWCA Civ 1088
Re B (Children: Police Investigation) [2022] EWCA Civ 982
Re H (Parental Alienation) [2019] EWHC 2723 (Fam)
Re L (A Child) [2019] EWHC 867 (Fam)
Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)
Re S (Parental Alienation: Cult) [2020] EWCA Civ 568
Citation reference:
Sehra Tabasum, 'Private children: Desperate measures', (December 2022/January 2023 #219) Family Law Journal, https://www.lawjournals.co.uk/2022/11/04/family-law-journal/private-children-desper ate-measures/, see footer for date accessed.
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