England and Wales High Court (Family Division) Decisions

Mrs Justice Lieven DBE :

The Background

Findings of HHJ Watson

i."The Mother has alienated the children leading to emotional harm by disrupting contact and family time with paternal family from January 2019 - June 2019 (when contact first stopped) and has continued disruption of family time and failed to encourage the children from June 2019 to present"

ii."Z and X have been left unable to recollect any positive memories and having an unjustified view of their father as being absent and uninvolved in their childhood when the family unit was intact"

iii.Z and X have developed an unjust fear narrative of father.

iv."Mother has intentionally disregarded boundaries by over sharing adult matters by "having no secrets from her children" thereby involving the children in matters whish should be resolved between parents. The children should not be complaining that they were to stay with father for 9 days over Christmas 2020 and it was too long. This should not have been shared with them. Mother has also failed to recognize boundaries with professionals by showing extracts/full reports with family members and allowing them to become involved with challenging the process and by constantly complaining has undermined their professionals independent and impartial analysis of the welfare interests of the children. Any correction of errors and factual mistakes could be done openly and transparently in full statements within the private law court process"

v."Allegation 3 is established as no contact has taken place in accordance with court orders, which have not been appealed and no application has been made to suspect or vary the court orders"

vi."Mother has failed to engage honestly and genuinely with professionals to progress matters in line with court orders. This includes the System Family Team in 2019, the Independent Social Worker, Ms Barry-Relph, who was tasked with the re-introduction of the relationship with father in 2021 and the social worker, Laura Matts, who since April 2020 has striven to work with the children and mother under a [Children in Need Plan] and then from December 2011 a [Child Protection Plan]. I make the finding that mother has disrupted the steps taken. She has met with the workers and kept appointments, but this has been disguised compliance as she has never fully engaged with the process. Mother has preferred to hide behind the expressed views of the children rather than challenging those views and working with the professionals to correct the false narrative."

vii."Having read the police logs I also make the finding at Allegation 5 that mother has continued to escalate and raise allegations (11 Police crime numbers have been issued in relation to stalking, internet hacking and harassment involving father), none of which have been substantiated and none of which have been put to father. In all probability this has therefore been done to disrupt the court process, contact and the paternal relationship because the girls have been made aware and have changed their passwords and their devices and believe their father spies on them through Alexa."

"205. I shall make a CAO which permits the implementation of the 90 day therapeutic residential reunification plan from 12 March 2022 as recommended by the ISW.

206. Both girls shall be placed with their father at home or at an Airbnb and supported by the ISW and her assistant who will live alongside.

207. Father will engage with PACE.

208. [Z] and [X] will be expected to engage with therapeutic support from the ISW whilst attending school, engaging in activities and living with father.

209. All communication with their mother will cease save for specific arrangements put in place and supervised by the ISW.

210. Mother shall engage in one to one therapy delivered by her own therapist and supervised contact will be reinstated once the therapist is satisfied mother accepts the agreed narrative arising from the judgment and is considered to be genuine in her promotion of the relationship between father and daughters. This is likely to be in about 3 months but could be earlier if significant progress is made in therapy.

211. Mother will be provided by the LA with regular updates on the girls and the LA will supervise all contact under the CPP until further order of the court."

The caselaw relating to parental alienation cases

"The law concerning parental alienation

7. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, the value of early fact-finding has repeatedly been emphasised.

8. As to alienation, we do not intend to add to the debate about labels. We agree with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. It is nevertheless necessary to identify in broad terms what we are speaking about. For working purposes, the CAFCASS definition of alienation is sufficient:

"When a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent."

To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive.

9. Where a child's relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent. These may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.

10. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy 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's first inclination will be to reason with parents and seek to persuade them to take the right course for their child's sake, and it will only make orders when it is better than not to do so. Once orders are required, the court's powers include those provided by sections 11A to 11O of the Children Act 1989 , and extend to consideration of a more fundamental revision of the arrangements for the child. We agree that whilst a change in the child's main home is a highly significant alteration in that child's circumstances, such a change is not regarded as "a last resort": Re L (A Child) [2019] EWHC 867 (Fam) at [53] to [59] per Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution.

11. Cases at the upper end of the spectrum of alienation place exceptional demands on the court. It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become. It must take a medium to long term view and not accord excessive weight to short-term problems: Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 per Sir Thomas Bingham MR at 129. It must, in short, take action when and where it can do so to the child's advantage. As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53:

"53. The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court's powers, which is likely to be effective as opposed to ineffective."

12. Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship. Re A (above): 12 years of proceedings, 82 court orders, 7 judges, 10 CAFCASS officers, no contact. Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam); [2004] 1 FLR 1226 (Munby J): 5 years of proceedings, 43 hearings, 16 judges, no contact. Re A (Children) (Parental Alienation) [2019] EWFC B56 (HHJ Wildblood QC):8 years of proceedings, 36 hearings, 10 professionals, no contact despite an attempted change of residence. In some cases (e.g. Re A) a formal finding of a breach of the state's procedural obligation under Article 8 was made. Another recent example is Pisica v Moldova (Application No 23641/17) 29 October 2019, where a mother was deprived of contact despite five years of proceedings during which she had obtained orders for the children to live with her. Finding a breach of Article 8, the ECtHR stated:

"63. The Court reiterates that although the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective "respect" for family life (see, amongst other authorities, Glaser v. the United Kingdom, no. 32346/96, § 63)...

...

66. In cases concerning a person's relationship with his or her child, there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (see, for example, Ignaccolo-Zenide, cited above, § 102; Süß v. Germany , no. 40324/98, § 100, 10 November 2005; Strömblad v. Sweden , no. 3684/07, § 80, 5 April 2012; and RibiÄ-�, cited above, § 92).

...

73. It is against this background of increasing alienation of the two children from the applicant that from July 2013 she asked the court to decide the custody case in a swift manner. Despite this request and her many complaints about P.'s actions, the first-instance court took a year and a half to decide (see paragraphs 12 and 31 above). This added to the overall period during which the applicant did not have meaningful contacts with her two children, while P. continued to be able to alienate the children from her (see paragraphs 12, 13, 18, 21, 23, 24, 26, 33 and 34 above). This delay in deciding the case is contrary to the principle of exceptional diligence referred to in paragraph 66 above.

...

80. In the light of the above considerations, the Court finds that, in the present case, the domestic authorities did not act with the exceptional diligence required of them (see paragraphs 66 and 73) or discharge their positive obligations under Article 8 of the Convention. There has therefore been a violation of Article 8 of the Convention in the present case."

13. In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent' s right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it."

Submissions

Conclusions