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IN THE FAMILY COURT AT PETERBOROUGH
Date: 24 June 2021
Before HER HONOUR JUDGE DAVIES
IN THE MATTER OF
MR C HALE QC, appeared on behalf of the Applicant Father
MISS MEREDITH, appeared on behalf of the Respondent Mother
MISS S REED, appeared on behalf of the children, through their Guardian,
24 JUNE 2021, 10.13-11.03
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The background to this case
“… 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.”.
“As to alienation, we do not intend to add to the debate about labels. We agree with Sir Andrew McFarlane … 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.”.
“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.”.
“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” …” and that is in quotes from Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution.”.
“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.”.
And he then quotes from McFarlane LJ again in the case of Re A at paragraphs 53.
Lord Justice Jackson then quotes from a number of cases where there have been many years of proceedings and many cases where there have been many professionals involved. Jackson LJ also considered whether or not this would be a breach of Article 8 of the European Convention of Human Rights.
“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 had become too late to take it.”.
I take that judgment into account.
First of all, the wishes and feelings of the children, given their age and understanding.
Both children say they want to live with their mother; they do not want to live with their father. B says B does not want to see the father. B says he is a drunken and violent man who beats B. The observation is that B can, and does, enjoy their time with him.
The mother should not be expected to go to the father’s house to collect or return the children. When the mother is seeing the children for the days out in X, the collection and handover can be at a railway station unless the mother can suggest an alternative suitable venue for the day’s outing, in which case the pick up and drop off will be from that venue. After October half-term, the mother, when she comes to X, could collect the children from school, or she could, if she preferred, collect them from the railway station after school on a Friday. She must return them by 7 o’clock on Sunday. She should deliver them back to the railway station, not to the father’s home.
Her Honour Judge Lindsay Davies
24 August 2021