‘Children are not packages to be moved around’ … or are they?

Re S (Minors) (Access: Religious Upbringing) [1992] 2 FLR 313

Natalya Evans

The previous instalment in the parental alienation series discussed the concept of parental alienation more broadly and the potential devastating impacts it can have on familial relationships. Looking at the practical realities that lawyers and litigants in person will face, it is interesting to consider how it may be best to present a case to the court and the issues that may be faced when doing so.

child looking out of window

The obstacles associated with running a parental alienation case

Firstly, investigating allegations of parental alienation is a highly invasive approach for children (Re L (A Child) [2019] EWHC 867 (Fam)). Often professionals, such as psychologists, social workers and family therapists, will need to be involved. They will need to have direct and indirect contact with the children which the family courts aim to avoid or at best minimise where possible (see our previous Blog on different types of social workers https://www.petersmay.com/blog-pages/cafcass-or-independent-social-worker).

Secondly, there is the issue of delay. Parental alienation cases are extremely time sensitive. Indeed, there may be a scenario in which the alienating behaviour is entrenched by the time the case is properly litigated (Pisică v The Republic of Moldova (Application no. 23641/17). And of course, delay is absolutely prejudicial to the welfare of children because they are harmed by behaviour of the manipulative parent for longer and are harmed by the absence of a relationship with the other parent.

Thirdly, there are difficulties evidencing parental alienation itself and explaining the behaviour. To make a specific finding of parental alienation the court needs to evidence something that can be very difficult to identify(Re T (A Child) [2002] EWCA Civ 1736). It is therefore hard to prove that the child’s behaviour is caused by the alienating behaviour itself and not other factors, or in conjunction with other factors such as the breakdown of the parents’ relationship (Re E (A Child) (2011) EWHC 3521).

Things to consider in a parental alienation case

In a parental alienation case, strategy is very important. Consideration has to be given to the following:

1.     Fact-find

The court may need to determine at an early fact-finding hearing whether the allegations of parental alienation are true (Re J (Children) 2009 EWCA Civ 1350).

2.     Professional involvement

Professional involvement to assess the existence of, and if found, the extent of the alienation will be needed. An order under section 7 of the Children Act would be made to produce a welfare report, which would be done after the fact-finding hearing has taken place. Without a fact-find the professionals don’t have a factual basis from which to draw their conclusions.

3.     Children’s guardian

Consideration will need to be given as to whether the child should be made a party to court proceedings and a children’s guardian appointed. A child is justified in being made a party when there is a difficult dispute over residence or contact and where there is irrational or implacable hostility to contact (i.e., parental alienation) (16.4 FPR 2010, PD 16A s7.2(c)).

4.     Children’s wishes

Finally, the court may, if appropriate, wish to consider the child’s wishes and feelings (s 1 Children Act 1989, Re A (Children: Parental Alienation) [2019] 9 WLUK 445). The major issue here is that views of the child, however firm they appear, could be those of the alienating parent, rather than the child’s own. This is why the judgment of the expert is often so integral in parental alienation cases.

Anarkali Musgrave of Coram Chambers provides a comprehensive take on how best to litigate parental alienation cases (https://www.youtube.com/watch?v=nr7Wl97AO2o).

Outcomes if parental alienation is found

So, if parental alienation is found, what is the likely outcome?

Well, the court has a duty to promote contact with its focus being to meet the best interests of the child (Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521).The court will make a child arrangements order when it is better to make one than not. The nature of that order will depend on the severity of the alienation.

Generally, in the case law there are two approaches in relation to the alienating parent (Martha Holmes of 1KBW provides an excellent analysis of the caselaw here https://www.1kbw.co.uk/wp-content/uploads/2018/05/MarthaHolmes_Parental_Alienation.pdf). Either contact can be forced by implementing court orders against the alienating parent, or alternatively a therapy centred approach is taken. The latter is obviously a long-term solution and in parental alienation cases we often do not have the luxury of time.

The most interventionist order is of course the transfer of residence. This is when the court will order that the children are to permanently live with the non-alienating parent. Albeit the most drastic order the court can make, it is not no longer seen as a last resort (Re S (Minors) (Access: Religious Upbringing) [1992] 2 FLR 313).

Today, we see the courts sitting more comfortably with ruling that a child can live with the other parent in the context of parental alienation if it is in the best interests of the children. As such, the trauma of being moved is outweighed by the impact of continued alienation. These decisions are of course circumstance dependent but may be the better alternative to the status quo.

Thoughts on the future of parental alienation

So, whilst children are hardly ‘packages to be moved around’ and should not be passed from home to home without due regard, the court will not rule out a transfer of residence in these cases. A decision of this kind is not made lightly, and the court will consider the reports of any experts and witnesses (the family court’s guidance to psychological expert evidence is to be discussed in Part 3 of this series).

Indeed, it is important to remember that intervention does not guarantee that the alienation itself or the issues stemming from the alienation will be resolved. However, in some cases, it is the best possible chance for the children to have long-lasting relationships with both parents.

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