If you are involved in proceedings where the child could be developing the view that one parent is ‘all good’ and the other parent is ‘all bad’, and this is without justification 1, then parental alienation may be on the cards. This was the view of the reporting CAFCASS Officer in Re L, a case which demonstrates just how difficult it is for lawyers, the court and the parties to grapple with the issue of parental alienation. Interestingly in Re L, however, the ‘findings fell short of attracting the labels ‘intractable hostility’ or ‘parental alienation’’.
The Facts
L was eight at the time the final order was made, some six years, ten judges and twelve orders since the initial application in 2013.
At its inception, the case was concerned with the Mother’s application for L to live with her and the Maternal Grandmother. L had been living with them since the age of two, which was the time of the parties’ separation. The Mother lived in London and the Father lived in Northern Ireland. In May 2016, the court ordered that L should live with his Mother and spend every third weekend with his Father in England, with additional substantial periods during the holidays with him in Northern Ireland.
Throughout the long course of the proceedings, the court considered applications from the Father for variation and enforcement of a Child Arrangement Order, as well as an application for a non-molestation order. It also heard an application from the Mother to suspend contact.
In October 2017, L was ABE interviewed by police after making assertions which, ‘if true, indicated a lack of sufficient sexual boundaries in the Father’s home’. These allegations were dismissed in May 2018 by HHJ Toulson and it was ‘found to a very high standard of proof that there has been no sexual or physical abuse by L’s Father of his own son’.
What followed was an application from the Father for a change of residence. The key feature of the Father’s case was that the Mother and Maternal Grandmother were undermining L’s relationship with him. At the final hearing, HHJ Toulson considered that this may be made out but adjourned the application and appointed a Guardian, rendering the final hearing part-heard. In the Guardian’s report she surmised that a change of primary home would have a profound emotional impact on L, that he had a strong attachment to the Maternal Grandmother and that, for him to adjust to a new city, new home and new school were bound to pressure on an eight year old boy. The officer concluded that a change of residence would be too damaging at that time but that L was safe in the care of the Father and the Mother and Maternal Grandmother must accept this.
Following this, a letter was written by a new CAFCASS Officer to the court which went as far as to say that L was being emotional harmed by his parents’ conflict to the point where it now constituted ‘emotional abuse’.
Throughout the course of the final hearing, and after hearing the evidence of the parents and maternal grandmother, the CAFCASS Officer changed her recommendation and favoured L moving to live with his Father in Northern Ireland. HHJ Toulson concluded that, by living with his Father, L would have the ‘emotional space’ to maintain a relationship with both parents and, in conducting the welfare analysis concluded that ‘maintaining a placement with his Mother and Maternal Grandmother would not meet L’s emotional needs and ‘will cause him emotional harm in the future’. He could concluded that the inevitable emotional harm that would follow a move to Northern Ireland was ‘harm which is worth incurring’ given the absence of substantial change by the Mother and Grandmother. He therefore concluded, that the balance of advantage lay in a move to Northern Ireland.’
The Mother appealed. Her grounds were as follows:
- There is arguably a procedural irregularity in respect of the failure to ascertain L’s wishes and feelings in respect of who he was to live with and in which country.
The Guardian had interviewed L and his Mother separately and had observed contact between L and his Father. She had seen that L’s behaviour was entirely positive with his Father but his response about his Father had been wholly negative when with his Mother. The Guardian, after consideration, chose not to ask L directly about the proposal that he moved to Northern Ireland with his Father and it was this that formed the basis of the first ground of appeal. The Mother argued that L had been ‘completely overlooked’ by not having been engaged directly on a central point. The Guardian, in her oral evidence, said that whilst she had begun to investigate wishes and feelings, she had not asked the direct question because she had considered it would be harmful to do so.
The President considered the meaning of ‘ascertainable’ wishes and feelings and highlighted the fundamental principle of a child being heard in proceedings but that the manner and degree to which this is done will vary from case to case. The Judge concluded that L’s voice was certainly heard within the proceedings and that the duty of the Guardian to report on a child’s wishes is ‘tempered by the overarching requirement to afford paramount consideration to the child’s welfare’. The President considered that it was not possible to ascertain L’s genuine view without causing him emotional harm and that ‘actions speak louder than words’.
- Arguably the decision to transfer residence was premature
The President referred to Re A (Residence Order) [2010] 1 FLR 1083 where words such as ‘tool’ and ‘weapon’ were used to describe a change of residence. However, the Judge wished to distance himself from such language commenting that there is a risk that this moves the focus of the decision-making away from the welfare of the child which must remain the court’s paramount consideration.
The President proceeded to confirm that Sunmer J identified the correct approach to a change of residence in Re C [2009] EWCA Civ 1141 – ‘No court would alter that situation without clear evidence that he had suffered harm which would continue or was at serious risk of that’ but distinguished it from Re L as the Mother had shown a good understanding of what had gone wrong. Given that it was early days, the court decided to keep a close eye on the situation- ‘courts are slow to change residence in such circumstances without giving the resident parent a chance to understand what has gone wrong a to remedy it, provided that such a course is compatible with the child’s best interests’.
In Re L, despite the Mother and Grandmother being given the chance, there had been no material change. The Judge in the present case found that, not only had harm happened in the past but L was continuing experience harm would continue to do so in the future.
- The Judge’s conclusions in respect of the balance of harm are arguably wrong or insufficiently evidenced.
Finally, the Mother’s overall case was that the evidence ‘was simply insufficient to support the finding as to the balance of harm and said that it was based on ‘speculation and general experience’ rather than upon as assessment of the child in this case’. Both the Father and the Guardian submitted that the Mother’s appeal overcomplicated the reality of the case which was that it centred on the issue of emotional harm- a finding which the court had made and had not been challenged by the Mother on appeal. In a case where the ‘two households on offer were broadly similar, with each meeting L’s needs, the case turned on one issue, namely that of emotional harm’. In the absence of any clear change from the maternal side, HHJ Toulson decided that a move of home was justified. The President did not agree that the Judge was ‘wrong’ in undertaking the balancing exercise as he had.
The Mother’s appeal was dismissed.
Commentary
Re L is a must-read for practitioners, who will find it useful in a number of situations. It sets out the numerous hurdles to contend with in cases where parental alienation is a feature, if not a finding. The President revisits the meaning of ‘ascertainable wishes and feelings’ and provides commentary that will be useful across a broad range of cases. It reminds practitioners about the considerations before the court when deciding whether to effect a change of residence and refocuses on the mind on the need for the balancing exercise without a gloss.
It would be wise to read the Judgment alongside the CAFCASS Child Impact Assessment Framework guidance.2
Both the judgment and the guidance set out a plethora of examples of the sorts of behaviour to look out for in a case where ‘parental alienation’ may be a feature. For example, the Mother contributing to a situation where L was not allowed the emotional space to express positive feelings about his Father and, in contrast, received an emotional reward for expressing negative views. The CAFCASS website sets out other examples, such as bad mouthing and belittling the other, limiting contact, forbidding discussion about the other parent and creating the impression that the other parent dislikes or does not love the child.
In a case which spanned across six years, the judgment also guides practitioners through a range of options available to the court in a parental alienation case:
- Appointing a Guardian
- Exploring whether a change of residence would be best for the child
- A course of therapy of the Mother (referenced in the judgment when citing Re C [(residence order) [2007] EWHC 2312 (Fam)).
- Counsel for the Mother in Re L case suggested no fewer than eleven different options for the court before a change of residence. This included adjourning the case or making a suspended transfer order to allow the Mother further time to demonstrate change. These options were raised at the appeal stage.
- The CAFCASS Officer in Re L concludes that ‘emotional abuse’ is a feature. Whilst the officer falls short of using the phrase ‘suffering or likely to suffer significant harm’ which would cross the section 31 threshold in public law proceedings, it would be wise for practitioners to bear in mind that a section 37 report is an option before the court and the consequences that may flow from this, for example, targeted work for the alienating parent or work with the child.
This is undoubtedly a difficult and often frustrating situation to deal with as a practitioner. It is important to identify that ‘parental alienation’ is or may be a feature early on to ensure there is good, robust case management in order to avoid slippage and delay. It is also essential to consider the fact that, whilst finality is almost always desirable. this should not be at the cost of monitoring the situation properly and promoting a relationship with one parent where this is considered to be in the best interests of the child.
Footnotes
[1] Cafcass website: Cafcass recognises parental alienation as ‘when a child’s resistance of hostility towards one parent is not justified and is the result of a psychological manipulation of the other parent’.
[2] Cafcass has introduced a Child Impact Assessment Framework which builds on existing guidance to help their Family Court Advisors (FCAs) to more easily identify the impact of different case factors in them. The four assessment frameworks are domestic abuse, conflict which is harmful to the child. Child refusal or resistance and other forms of harmful parenting. More information can be found on the Cafcass website here.
