Wednesday, 14 January 2015

Parental Alienation - The Need for Consistency

The Telegraph today ran an article on parental alienation headlined "We must stop turning children against divorced fathers".

It's an area of interest for me, having worked on numerous cases where parental alienation was a factor, and having seen slow change in the courts on how parental alienation is considered and approached.

People still say the court does not recognise parental alienation. This is untrue. That said, it is an area where knowledge and approach are respectively lacking and inconsistent, a point highlighted and indeed raised by senior members of the judiciary.

2014 saw three judgments, which I consider landmark judgments, which consider the level of harm done to children through alienation, and discussions within the psychological community on the harm done to the alienated parent (something rarely considered).

H (Children) [2014] EWCA Civ 733
The Honourable Lady Justice Parker made comments that professionals involved in parental alienation proceedings need a far greater understanding of parental alienation and the harm caused. The social worker involved had held a position that there should be no contact, leaving the child subject to continued alienation and cognitive manipulation by the alienating parent. Parker disagreed:
"74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother's inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this."
Parents who alienate their children cause their children harm. It's a form of emotional and psychological abuse, and arguably, domestic violence.

Parker also dealt with the issue of children's wishes and feelings, explaining in legal terms why there is a stark difference between ascertainable and expressed wishes, when the child has been alienated:
"72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is "ascertainable" and not "expressed". "Ascertainable" often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust."
Parker nailed it, handing down a useful authority to help practitioners in this area.

T (Children) [2014] EWHC 2164 (Fam)
This was a case which had, as many do when there is a degree of complexity, dragged on unacceptably with little in the way of resolution due to a process which is not geared towards speed.

Resolution came when the case was transferred to His Honour Judge Hamilton, who had 'got hold of the case'. Guidance included that there was a need for early investigation in such cases, that there should be a Guardian-ad-Litem appointed (separate representation for the child which can aid in investigation), but again some criticism of the social worker for having asked the child leading questions. A lack of expertise among investigating social workers was again an issue.

W (A Child) [2014] EWCA Civ 772
This case saw the court taking a more resolute approach, where the mother had made sexual abuse allegations (quite common) and matters had to proceed to a finding of fact (the judge determining whether the alleged abuse had or had not happened):
"[30] At the outset of proceedings I warned both parents of the serious consequences of pursuing this fact finding exercise. Were the allegations now make [sic] of sexual abuse true, then the court would be finding [the child] had been abused twice over, both by the grandfather and, later, by father. It would almost certainly mean, given [the child´s] distress, the need for a section 37 report, and probably an interim supervision order, and very careful evaluation of the need to protect, of a risk assessment, and the need to manage, with care, a deeply damaged little girl.
[31] Were the allegations untrue, then mother would be guilty of feeding her with untruthful stories, of an obsessive nature, about sexual abuse. Again, I would almost certainly be directing a section 37 report and making an interim care order, as [the child] would then need speedy removal from an abusive home."
His Honour Judge Cardinal, in paragraph 31 of his earlier judgment, raises the prospect of a finding that the mother had caused the child significant harm if her serious allegations were found to be false.

There are arguments that the family court does not sufficiently consider punishing perjury when parents lie in court. More importantly, the court routinely does not sufficiently consider the harm to the child's identity, relationships and wellbeing when false allegations are malicious and would have material consequences for the child had they been believed.

It can be tempting for a parent who faces false allegations to want punishment for the alienating parent. There is no doubt in my mind that a lack of consequence for perjury in the family court has given a green light to parties to lie. That said, first, the harm to the child should be the court's paramount consideration, and too often is not. Things have improved in recent years, but the judgments in 2014 highlight that these improvements are not universal.

In this case, both the local authority, the father, and the guardian-ad-litem accepted the court's judgment. The mother, upon her allegations being found to be false, and the child removed from her care, did not. Sadly, the child was so alienated that an immediate transfer of residence was not possible. The appeal court upheld the lower court's decision:
"21. I ask the question rhetorically: given the court´s findings, how could the judge leave the child with the mother? No level of sufficient support and necessary protection was described by anyone. To leave the child without protection would have been unconscionable. One has only to consider physical abuse to a child that gives rise to a similar index of harm to understand that such a position was untenable. The submission made on behalf of the mother that her care of the child had in all (other) respects been good or even better than good simply misses the point. More than that level of care was needed to protect this child from her own mother."
22. The distress that had been engendered in the child, as advised by the children´s guardian, sadly made an immediate move to the father impossible.
Other cases
Lord Justice Ryder identified 5 flaws in the handling of the case K (Children) [2014] EWCA Civ 1195.
  1. The nature and extent of the applications that were made by the parties, the orders that could be made in consequence and in particular the welfare options underlying those orders, were not identified with sufficient or any clarity;
  2. There was no sufficient welfare analysis of the options that were available;
  3. The proportionality of the removal of A on the grounds of 'safety' from the care of either or both of his parents was not justified;
  4. The separation of the boys from each other was neither considered nor justified; and
  5. The determination of the court was inappropriately influenced by a discussion between the judge and the boys. short, various options should be considered, and while speed is important in helping limit the extent of alienation, there are also risks when this is done at the expense of a detailed investigation, and in the absence of a thorough welfare analysis of the options available to the court. Most of the criticism concerns the specific handling of that particular case, and there is not criticism of interim care as a solution, but its proportionality in the circumstances involved.

It should be noted that Ryder LJ had upheld the decision concerning the use of interim care in the case (above) W (A Child) [2014] EWCA Civ 772 finding alternatives to be 'unconscionable'. Ryder rightly points out that such a resolution must be proportionate.

Further case law concerning parental alienation can be viewed on our Parental Alienation and Intractable Contact Dispute Case Law Menu (click on the link or the image) which includes a brief summary of each judgment, a full version to read onscreen, and PDF versions to download.

We also provide guides to assist the alienated parent, including on the specific subject of Parental Alienation, and upon the role and appointment of the Guardian-ad-Litem.

We also presented at the Families Need Fathers AGM on Parental Alienation and Developments in Law, and a copy of our powerpoint presentation can be accessed below. Please note, if the image appears blurred, increase the resolution to a minimum of 490p via the settings wheel in the bottom right hand corner (the problem is your Youtube setting, not our video).

Powers Available to the Court
It's worth reviewing powers available to the court:

  • Appointment of a CAFCASS Officer
  • Appointment of a Guardian-ad-Litem to represent the child's bests interests and 'ascertainable' wishes and feelings
  • Appointment of an Expert (psychologist), and psychological assessments of the parents and/or child
  • Involvement of Social Services
  • Supervised contact and reporting
The court should (albeit arguably does not sufficiently) satisfy itself that CAFCASS Officers, Guardians, Social Workers and Experts have sufficient experience to investigate and report upon cases where the child might be alienated and his or her ascertainable wishes and feelings are obscurred through alienation.

Powers/Orders Also Available to the Court
  • Parenting Information Programmes (courses to focus parents on appropriate parenting)
  • Penal Notices (the potential exists that the Warning Notice on an existing contact or child arrangements order is not on the face of the order, and this should be corrected)
  • Punitive (community service, fine or imprisonment for contempt of court in the event of non-compliance with orders)
  • Counselling/Therapy (for the parents and/or child)
  • Suspension of residence (or 'living arrangements' within the confines of a child arrangements order) as a stark warning to the alienating parent
  • Reversal of residence (or 'living arrangements' within the confines of a child arrangements order) to remove the child from abuse
  • Temporary Care Order to assist in the transfer of residence where the child has become alienated and an immediate transfer of residence is not possible
  • Family Assistance Order - whereby a welfare officer will assist the family for a period of up to 12 months
  • Supervision Order - if the child is identified at being risk of harm through emotional/psychological abuse
  • Specific Issue Order - in respect of such things as the child attending therapy
  • Prohibitive Steps Order - limiting the alienating parents' role in aspects of the child's life where their involvement may be harmful or perpetuate alienation.
The Need for Expertise, Training and High Standards
We believe that:
  • Experts should be identified and trained, within the field of social work, within CAFCASS, within psychological service providers and the judiciary, specifically in relation to parental alienation, with best practice in investigation shared.
  • A list of these experts should be published (to assist both the court and litigants-in-person).
  • The British Psychological Society to identify a list of suitably experienced, qualified and experienced clinical and child psychologists capable of assisting in alienation case.
  • The President of the Family Division of the Court should set out clear guidance for the management of cases which involve parental alienation and intractable contact dispute.
  • High standards are essential, as a failure in this regard makes alienation more likely to become entrenched and harder to resolve. Counselling and Psychological Practitioners must publish clear service standards, in terms of face-to-face appointments, handling of cancellations, costs and approach to assist both the parents and the court in holding them to account. Practitioners should not subvert or advise against clear directions and the strategy of the court of their own volition and without referring back to the court.