A Review of Recent Case Law: Parental Alienation

Parental Alienation

There is no single definition of ‘parental alienation’. The lack of consensus as to its precise definition results in some misunderstanding and misuse. The 2019 Cafcass guidance defines ‘parental alienation’[1] as:

“…when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent. It is one of a number of reasons why a child may reject or resist spending time with one parent post-separation… Alienating behaviours present themselves on a spectrum with varying impact on individual children, which requires a nuanced and holistic assessment. Our role is to understand children’s unique experiences and how they are affected by these behaviours, which may differ depending on factors such as the child’s resilience and vulnerability”

It is helpful to bear in mind that where allegations of parental alienation are made, it is necessary for the court to make a specific finding2 and expert assessment is likely to be required in order to establish parental alienation as being causative of a child’s refusal to attend contact.

It is readily acknowledged that it is often appropriate to make the child a party to the proceedings and appoint a children’s guardian under rule 16.4 of the Family Procedure Rules 2010. Practice Direction 16A sets out guidance on circumstances which may justify making the child a party. Included in that list at §7.2(c): ‘where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational or implacable hostility to contact or where the child may be suffering harm associated with the contact dispute’.

Delay is inimical to the welfare of children particularly those embroiled in such contentious proceedings, who continued to be harmed both by the psychological manipulation of the parent with whom they reside and the continued denial of a relationship with their other parent. In recent years there has been an increased appreciation of the seriousness of a child being denied a relationship with a parent within private law proceedings. In the President’s 2018 NAGALRO speech3, this point is addressed the President commenting ‘there is much more a link between these high-end private law disputes and adoption that might otherwise be appreciated’. An appreciation of the seriousness of one parent denying a child a relationship with the other parent reminds of the pressing need to identify and address potentially intractable cases at the earliest opportunity.

[1] https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parental-alienation/

2 (Re T (A Child) (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736)

3https://www.judiciary.uk/wp-content/uploads/2018/03/speech-by-lj-mcfarlane-nagalro.pdf

4 Re A (Residence Order) [2010] 1 FLR 1083, Coleridge J at para 21

Change of Residence

Re L (A Child) [2019] EWHC 867 (Fam)

Given the President’s concerns, the decision in Re L is perhaps not surprising. This case seeks to resile from the commonly deployed phrase that a change of residence is ‘a weapon or tool of last resort’4 and endorses the approach of Sumner J in Re C (Residence) [2007] EWHC 2312 (Fam) and reminds 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’.

A particularly interesting aspect of Re L is its consideration of the appropriate ‘threshold’ for a change of residence at §59: ‘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 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.’

Re L also draws attention to the use of a conditional residence order as per Jackson J in Re M (Contact) [2012] EWHC 1948 and determines that a Guardian need not directly ask a child about their views in relation to a transfer of residence if to do so would be contrary to their welfare needs as the welfare checklist seeks ‘their ascertainable wishes and feelings’

T (Parental Alienation), Re [2019] EWHC 3854 (Fam)

The judgment of HHJ Raeside (sitting as a High Court Judge) includes as an annex, a schedule of orders in the proceedings. This document charts an all too familiar journey of protracted proceedings from their instigation in March 2016 through to their conclusion in December 2019, blighted by delay, lack of judicial continuity and fruitless welfare reports.

The child, T, is 5 years old and has been embroiled in proceedings for almost her entire life. In spite of evidence of T suffering emotional harm, it became clear that the local authority did not intend to commence public law proceedings. The father recognised that since he did not have a relationship with T that any application for a change of residence would have to be supported by a bridging placement and duly made an application for Wardship. In March 2019, the child was made a ward of the court.

The mother initially opposed the father’s application for a change of residence but having heard the evidence of the social worker and the child psychologist changed her position so that she no longer actively opposed the father’s application.

The case highlights the importance of specialistic expert assessment. The evidence of the clinical child psychologist, Dr Shbero provided a clear analysis of T’s presenting behaviours being indicative of parental alienation on which findings could be made and the court noted her contribution to be fundamental in progressing the case.

The judgment also contains a transition plan at Annex C and a summary of applicable law at Annex B which practitioners may find useful in navigating similar cases.

Re H (Parental Alienation) [2019] EWHC 2723 (Fam)

Keehan J ordered a change of residence in relation to H, having determined that the mother had alienated H from the father and that the only means by which H could enjoy a relationship with both of his parents was to transfer residence to the father; nothing else will do in the welfare best interests of H. In summarising the applicable law, Keehan J highlights the passage in Re L at §59, as detailed above.

Keehan J is particularly critical of the “woefully inadequate” section 37 report which fails to consider the comprehensive expert report of clinical psychologist, Dr Braier and is undertaken by a social worker with no previous experience of parental alienation. Similar criticism is raised of the NYAS casework due to a failure to undertake meaningful enquiries, a simplistic and one-sided approach and a failure to consider the report of Dr Braier. The inadequate social work resulted in the court disregarding the s.37 report and NYAS report in determining the father’s application and in doing so highlighted the importance of experienced professionals and expert evidence.

The case provides a detailed analysis of the child’s presenting behaviours at paragraphs 11 & 12 which may assist in identifying typical behaviours in parental alienation cases which may necessitate a change of residence.

It is important to note that the child was aged 12, he was settled at secondary school and had not seen his father for over 12 months at the point that the change of residence was ordered. This is indicative of the robust approach that the court is

prepared to take in cases concerning parental alienation and the value in not assuming that there is a certain age at which a transfer of residence is no longer an available option.

Re A (Children) (Parental alienation) [2019] EWFC

Re A offers a cautionary tale. It is an exceptional case involving proceedings spanning 8 years including 36 court appearances and the involvement of at least 10 professionals. The proceedings concluded with the local authority seeking to withdraw its pubic law proceedings, the transfer of residence having catastrophically failed resulting in the children ultimately returning to the care of the mother with no contact with the father.

HHJ Wildblood QC identifies ten factors which have contributed significantly, with hindsight, the difficulties encountered, at paragraph 13, as summarised below:

1. There was a failure to identify, at an early stage, the key issue in this case – the alienation of the children from their father by the mother. By the time that it was identified, the damage had been done.
2. Overall there has been significant delay within these proceedings.
3. At the early stage of the private law proceedings the case was adjourned repeatedly for further short reviews.
4. At no point prior to my involvement in 2017 was there a full hearing on evidence to determine what was going on in this family…In my opinion, it was essential that there should be a definitive judgment explaining the difficulties within this family so that future work with the family members could be based upon that judgment.
5. These proceedings have seen a vast number of professionals…Family members (especially children) are embarrassed about speaking of personal issues with strangers, develop litigation fatigue and learn to resent the intrusions into their lives by a succession of professional people.
6. A particular difficulty in this case has been the absence, at times, of collaborative working by professionals.
7. Early intervention is essential in a case such as this, in my opinion. It did not occur in this case. It took years (probably five) to identify the extent of the emotional and psychological issues of the mother. By that stage it was too late for there to be any effective psychotherapeutic or other intervention in relation to her, the children's views having already become so entrenched.
8. There is an obvious difficulty about how to approach the expressed wishes and feelings of children who are living in an alienating environment such as this. If children who have been alienated are asked whether they wish to have a relationship with the non-resident parent there is a likelihood that the alienation they have experienced will lead them to say 'no.'.. The lack of an effective and early enquiry into what was happening within this family meant that there was no effective intervention. That, in turn, has led to the children's expressed wishes being reinforced in their minds. It has also resulted in the mother being able to say 'we should listen to the children', rather than addressing the underlying difficulties.
9. It was unfortunate that the joinder of the children to the second set of proceedings was so delayed…Any attempt to conduct these proceedings without the joinder of the children would have been even more complex and unsatisfactory.

The use of indirect contact in a case where there is parental alienation has obvious limitations, as this case demonstrates. The father's letters, cards and presents were being sent by him into a home environment where he was 'demonised', to use the terminology of Dr Berelowitz. They served no purpose in in maintaining any form of relationship between the father and the children.

Re S [2020] EWHC 217 (Fam)

A case which concerned two children, Y aged 11 and X, aged 4 in public law proceedings which were issued within pre-existing private law proceedings concerning X. The local authority’s case being that children had suffered or were likely to suffer significant emotional harm arising from false allegations against each of the fathers of the children of sexual and physical abuse. The mother went to extreme lengths to create video footage of the children which she purported to be evidence of the children alleging sexual and physical abuse. There was a concern within the local authority that the mother’s behaviour may be an example of parental alienation.

Knowles J critiques the involvement of the local authority at paragraphs 61-70, with the scathing observation that ‘it is my perception that local authorities may be ill-equipped to grapple with complex private law proceedings where there are allegations of abuse made by one parent against the other.’

The court comments at paragraph 66 that the case was ‘not a classic case of parental alienation’ on the basis that the mother permitted contact and there was no evidence of psychological manipulation to discourage the children from attending contact. It is suggested that the local authority may not have been alive to the elements of the case which distinguished it from more typical cases of parental alienation and in doing so points to a lack of relevant expertise.

The following guidance for professionals working with complex private law disputes is at paragraph 71:

a) repeated section 47 investigations, which are not anchored to a comprehensive family assessment, are ultimately of little benefit;

b) greater respect needs to be given to the views of professionals who see the family more often than most social workers ever do;

c) in the interests of effective multi-disciplinary working, social workers may, on occasion, have good reason to challenge the views of other professionals. Ensuring other professionals understand the local authority's concerns and are updated as to recent events may assist that process;

d) families should be referred to sources of guidance and support or offered it as part of the local authority's intervention. This should happen sooner rather than later. The mother might well have benefitted from guidance about separated parenting and child development. Both parents would also have benefitted from advice and guidance in managing contact handovers and in communicating with each other about their child;

e) mediation services (aimed at separated parents and with appropriate expertise in dealing with complex contact cases) might have helped this family at an early stage of the proceedings;

f) delay in commissioning expert assessments is damaging. This case would have benefitted from an early specialist assessment which might have obviated the need for these proceedings;

g) such cases require a high degree of professional skill from social workers and their managers and, in my view, should not be allocated to trainee or inexperienced social workers. These can be some of the most frustrating and difficult cases to work because of the high levels of entrenched parental conflict into which children are inevitably drawn. Better training about the complex issues these cases demonstrate, such as repeated but unsubstantiated allegations of abuse, seems to me to be urgently needed both for local authority social workers and their managers.

The recommendations identify some of the common areas of failure and weakness with which professionals will be familiar and which feature within the summary of cases discussed within this article.