IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

Case no.: OX20C00142

 

IN THE FAMILY COURT

 

 SITTING AT OXFORD AND

IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF A (A CHILD)

 

Date: 6 September 2021

 

 

Before:

 

HHJ Vincent

 

 

 

Between:

 

B

Applicant mother

and

 

C

Respondent father

and

 

A

 (acting through his Children’s Guardian CHARLEY HAMPSHIRE)

Third Respondent child

 

 

The Applicant mother represented herself

The Respondent father represented himself

Alex Perry, instructed by Oxford Law Group solicitors for the children

 

Hearing dates: 8, 9, 10, 11 June 2021

 

JUDGMENT

 

HHJ Vincent :

 

Introduction

 

1.      A is thirteen and a half and during his life has been the subject of a number of applications to the Court by one or the other of his parents.  There have been applications in respect of the arrangements for him to spend time with each of his parents, in respect of A’s schooling, an application by the mother to move permanently with A to [redacted], her country of origin, although she has been a British national for fifteen years, thereafter applications in respect of subsequent holidays, and applications to enforce previous orders.

 

2.      In December 2017 following a contested hearing, I made an order providing for A to share his time between his parents, spending one night during the week with his father every week and alternate weekends from after school on a Friday until 5.30 p.m. on Sunday [1].  The order provided for the main school holidays to be split, with A spending a week with his father at Easter and Christmas and three weeks over the summer holidays.  This was effectively a continuation of the terms of an order made by District Judge Jenkins dated 17 August 2011.  Both parents were to be permitted to take A abroad on holidays.  That order remains in force, but since the summer of 2019 A has not been spending time with his father in accordance with its terms. 

 

3.      The mother had applied to the Court in October 2018 for A to attend a different secondary school than had been envisaged by the parties in 2017, and was recorded in the December 2017 order.  There were a number of hearings about that throughout 2019 right up until October 2019.  A did not go on a planned holiday to Tenerife with his father in August 2019. 

 

4.      In June 2019 the mother had made a referral to MASH (Oxfordshire County Council’s multi-agency safeguarding hub) reporting that A was anxious in his father’s care, was forcing him to take expired medication, sending him to school with no food, that there was a conflict between the parents about schooling, and, she reported, A was anxious about his views around school not being heard.  A had written to his MP expressing his views about which school he wanted to go to.  When A was spoken to at school he did not report any worries about secondary school, but is noted to have raised concerns about his father’s driving, said he would like a better bedtime routine at his father’s (he is reported to have said that he had to pray at night with his father and his father kept him up late talking) and said that his father blocked the door and forced him to eat when he has said that he is full (he is reported to have said his father stood over him and made him eat).  C said on one occasion A had some medicine a couple of days out of date, that A had never raised any issues around feeding or driving.  It was explained to A’s mother that rather than saying he was not being fed properly as she alleged, he said something quite different.  C also made referrals to MASH in August 2019 alleging the mother was alienating A from him, with reference in particular to A not being made available for the Tenerife holiday.  The outcome of the MASH assessment was to refer to school for an Early Help Assessment in order to ensure that A’s voice was not lost in the midst of his parents’ acrimony.

 

5.      A started secondary school in September 2019, attending the school his mother had applied to the Court for him to attend.  He stopped staying overnight with his father on 2 October 2019. 

 

6.      In October both parents contacted MASH around arrangements for pick-up from school.  On 25 October 2019 the mother contacted police alleging that A’s father had grabbed A’s arm very roughly at pick-up on two occasions, both times when A had said he did not want to go for contact.

 

7.      On 1 November 2019 Ms S, social worker, was assigned to carry out a children and family assessment.

 

8.      The current set of proceedings started with an application by the mother made on 6 November 2019 to vary the order.  She says she has done everything she can to try and support and encourage the relationship between A and his father, but A’s reluctance to go is informed by his experiences with his father.  She says A feels his father does not listen to him, and has not provided A with the reassurance and understanding that he needs to enable their relationship to be repaired.  She is not opposed to A spending time with his father, but said that the current order was not working and needed revising, particularly because A was not willing to see his father.

 

9.      A’s father has made a number of cross-applications, for enforcement, prohibited steps orders and a new child arrangements order.  He says this is a case of parental alienation, and that what needs to happen is for the Court to make clear orders against the mother, with consequences for their breach, providing that she must make A available to spend time with his father.  In his final position statement he says:

 

‘We are at the upper end of alienation on the Court’s watch, since it has declined to make an early intervention, and A’s splitting is no longer mild. After ten years of judicial proceedings about A, 46 hearings (including ten voided and two excluding the father) with 12 judges and multiple barristers or advocates, five sets of solicitors, six CAFCASS officers and social workers, three county courts and online, 55 sets of Orders of the Court, but not one Order of Court enforced against the Applicant who increasingly has been training  A  to  spurn  and  scorn  the  law,  God,  and  his  father,  a  mere  five  contacts overnight since July 2019 with no routine, do you have any ‘difficulty in understanding why father has expressed criticism both of professionals appointed to assist the court and judges for not enforcing orders’?

 

10.  A’s guardian does not identify this as a case of parental alienation, but does consider A has been adversely impacted by the continual dispute between his parents.  She agrees with the mother that A’s current views are his own, and informed by his experiences of his father.  She suggests that the Court orders twice weekly short contact as a baseline with the hope that contact may once again progress to overnight and holidays. 

 

11.  The guardian suggests that the Court should impose a section 91(14) order in this case, although no formal application has been made.

Chronology of the proceedings

 

12.  In response to the mother’s initial application of 6 November 2019 the father applied on 21 November 2019 for a psychological expert, in his words, “to identify why A has become alienated since the summer and what intervention can be done to overcome it”, together with such orders, “as are considered necessary to restore care to the father”.  On the same date the father applied for enforcement and financial compensation in respect of alleged breaches of previous orders. No psychologist had been identified or other part 25 requirements complied with, and the application was adjourned with the parties invited to make enquiries about family group therapy or child inclusive mediation in the meantime. 

 

13.  A saw his father in his sister’s company in December 2019, and again met him for a meal at a pub with his mother present but sitting in another area.  He was said to have enjoyed himself very much on all three occasions.  

 

14.  The TAF assessment was completed on 2 January 2020 which concluded that there was no further role for social care as the main issues were the ongoing acrimonious relationship between the parents.  A recommendation was made for family therapy to take place.  In her conclusion Ms S wrote as follows:

 

During this assessment, [C] has presented as a father who loves and enjoys seeing [A]. [C] has however been seen to be frustrated and intently focused upon his lack of contact with [A]. [C] does focus upon talking about the difficulties [B] has caused for the family, and he appears to not be able to recognise his own part in the challenges they face. [C] has denied that any of his own actions have caused [A] emotional distress or anxieties.  [C] struggles to accept his role in the family difficulties and attributes sole blame to [B] which does not help the situation.  When [A]’s wishes and feelings were shared with [C] his response have been that these are not [A]’s views, and [A] is being manipulated by his mother.

 

[B] during this assessment has presented as a mother who loves [A] and is highly supportive of [A]. [B] does however also want her version of events to be heard. [B] has alleged that [C] is controlling and oblivious to [A]’s emotional needs, and [C] continues to override [A]’s wishes and feelings. [B] does focus upon talking about the difficulties [C] has caused for the family. [B] does not appear to be able to recognise how her own present/past responses to [C], will have shaped [A]’s own responses.  Whilst acknowledging that [A] needs to have a relationship with his father, [B] has also during this assessment raised faults about [C]’s parenting style, which are not safeguarding concerns.

 

As part of this assessment process, [A]’s wishes and feelings have been shared with both his parents.  [B] does in conversation recognise the benefits of [A] having a relationship with his father. [B] also appears to be trying to encourage [A] to rebuild his relationship with his father.  [C]’s responses to [A]’s anxieties and wishes however appears to be rigid and uncompromising.  [C] does struggle to recognise that [A] is an articulate young boy, and [A] has the right to have his own voice heard.

 

During this assessment it is evidenced that [A] is being exposed to ongoing emotional harm, because of how both parents are unable to work together in his best interests.  Parents continue to demonstrate blame and hostility towards each other.  There are indicators that [A] is part of an emotionally negative family dynamic, and this does appear to be impacting upon his relationship with his father.  [A] is an intelligent 11 year old boy who is explicitly aware that his parents struggle to effectively communicate with each other.  [A] has been exposed to the acrimony within his parent’s relationship for many years.  Children do require positive consistent parenting in safe and stable environments to develop healthy, secure and loving attachments to their caregivers.

 

[A] does appear to be alienating himself from his father at the present through his own choices. There is no evidence currently that [B] is trying to alienate [A] from his father. During my conversations with [A] the reasons for him not seeing his father appear to be more driven by [A]’s frustration around not having his voice heard than fear within his relationship with his father.  It is however also possible that [A] ma feel his emotional needs are not met by his father, and his satisfaction may lie in being able to dictate when and how he has contact.  It is also possible that [A] wants to please one parent by aligning himself and alienating themselves from the other parent.

 

15.  On 13 January 2020 the parties were in agreement to instruct Mr Nick Woodall to carry out work with A and his parents in accordance with the therapeutic assessment procedure of the Family Separation Clinic and to report to the Court in May.  Due to issues arising out of the first lockdown an extension was given to Mr Woodall to file his report in early July.

 

16.  At a hearing before me in July 2020 it was recorded that A had seen both parents on his birthday in February, stayed the night with his older sister, and their father had joined them at rugby the following morning.  A and his older siblings were in a WhatsApp group and had participated in video calls which their father had joined and had gone well.  A, his father and his older sister V had visited paternal grandmother on 27 June.  The father had planned a holiday to Spain with A, his cousin, paternal aunt and V.  It was recorded that A’s mother was ‘fully supportive of this holiday and hopes it will mark a fresh start in A’s relationship with his father’.

 

17.  By agreement, detailed arrangements were recorded in the order for A to spend increasingly more time with his father starting with meals out, then at father’s home, with both parents encouraging him to stay the night, building up to the two week holiday in Spain for the last two weeks of August and reverting by 1 September to the arrangements in the previous orders of 2011 repeated in 2017.  Various other provisions were made, and it was hoped that this could stand as a final order in the applications.

 

18.  The mother applied on 29 July 2020 for the father to take A somewhere other than Spain, given current advice from the FCO.  The application was heard by Recorder Weston QC on 3 August 2020 and again on 11 August 2020.  He directed that A should go on holiday with his father between 16 and 23 August to a destination to be confirmed (the father no longer seeking to go to Spain and proposing Cyprus), but not one where FCO advice against non-essential travel applied.  He ordered the father to confirm to the mother which family members would be joining A and the father on holiday, flight details, accommodation and contact numbers. He ordered the mother to make A available for contact in advance of that trip, to include staying contact with V.

 

19.  A had seen his father on 4 and 9 August as planned in the order, although he had not stayed overnight.  He had not seen his father on 8 and 10 August because he ran away from both his parents at the handover.

 

20.  On 13 August 2020 the father applied for further enforcement orders and compensation in respect of alleged breaches of orders in 2019 and 2020 and in respect of the holiday to Cyprus, which had not gone ahead.  No other family members were able to join the father and A on holiday, the parents were in dispute as to whether Recorder Weston’s order made that a condition precedent of the holiday taking place or not.

 

21.  On 1 October 2020 I saw the parties at which time the mother’s position was that the child arrangements order requiring her to make A available to see his father was not workable and counter to his welfare.  The father’s position was that the existing orders should be enforced, or that there should be a child arrangements order providing for A to live with his father for a minimum period of three months in order to repair the damage inflicted by the parental alienation he alleges the mother has caused.  In respect of his various applications for enforcement, I directed him to file a schedule of breaches, and for the mother to respond.

 

22.  From 2 October 2020 A had been seeing his father every Wednesday after school and they were watching rugby together at the weekends when it was on.  However, the father described A as ‘determined not to enjoy himself’, that he refused to accept food or drink when there, and would still not contemplate staying overnight.

 

23.  On 23 November 2020 A was joined as a party and I directed a children’s guardian be appointed.  Mr Woodall was invited to prepare an addendum report.

 

24.  Unfortunately, Cafcass did not assign a guardian to the case until 5 January 2021, the date of the next hearing.  Mrs Hampshire attended in person, I adjourned to enable her to appoint a solicitor, speak with A and his parents and review the papers.  The parties agreed that A would spend time with his father after school on Wednesday, overnight on Friday until Saturday lunchtime and that they would go to church together on 9 January 2021.  

 

25.  At a hearing on 12 January 2021 a new date was set for the guardian to file her report, the parties agreed that as a minimum A would spend every Wednesday after school with his father and they would meet up at a weekend for a shared activity, including watching a rugby match.

 

26.  On 21 January 2021 A was admitted to hospital where he had surgery for appendicitis.

 

27.  On 10 March 2021 I made directions for the final hearing.  The first time I had availability to hear it was in June.  At this hearing the father informed the Court that he was engaged to be married. His fiancée had arrived in the UK from [country name redacted] with her mother and sister on 8 March.

 

28.  The father was married on 27 May 2021.  A attended the wedding.

 

29.  The final hearing in June took place remotely.  Although I had asked the parties to try to reduce the bundle, the main bundle was 723 pages long, C’s supplemental bundle a further 446 pages, with additional documents supplied just before and during the final hearing.  C’s original schedule of breaches had 74 counts on it.  Despite his best efforts he had not been able to group into sub-headings as directed, but produced a second document that was considerably longer than the first, but annotated with extensive footnotes in respect of each allegation. 

 

30.  Over the course of four days I heard evidence from Mr Nick Woodall, psychotherapist at the Family Separation Clinic, from the mother, the father and the guardian.  It was then agreed that I would hear oral submissions from Mr Perry, and the parties could send in written submissions.  C’s run to 63 more pages. 

 

31.  I reserved this judgment.   Unfortunately due to a heavy caseload since the final hearing, there has a been a delay of some weeks, for which I apologise to the parties.

The law

Children Act orders

 

32.  In determining an application for a variation to the existing order, s.1(1) Children Act 1989 applies:  the child’s welfare must be the court’s paramount consideration and the court’s welfare assessment must be informed by an analysis of the factors in the welfare checklist under s.1(3).

 

33.  Further, s.1(2A) provides a presumption that involvement of both parents in their child’s life after separation is in their child’s best interests, unless it is contrary to their welfare.  Case law has emphasised that the Court must only stop contact between a child and a parent as a last resort.  See for example, In Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912 in which Munby LJ summarised the relevant ECHR case law as follows:

“a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare.

c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

d) The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

 

e) The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

f) All that said, at the end of the day the welfare of the child is paramount; the child's interest must have precedence over any other consideration.”

 

34.  In Re W (a child) [2012] EWCA 999, McFarlane LJ (now the President of the Family Division) referred to, ‘the definitive exposition of the relevant principles which apply in relation to issues of parental contact is to be found in the judgment of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 at pages 128C to 130E.  That substantial passage was helpfully and correctly summarised a year later in the Court of Appeal by Wall J (as he then was) in Re P (Contact: Supervision) [1996] 2  FLR 314 at page 328.  Before turning to quote more fully from Sir Thomas Bingham’s judgment in relation to principles (1) and (2) it is useful to set out Wall J’s shorter summary:

“1.     Overriding all else, as provided by s 1(1) of the 1989 Act, the welfare of the child is the paramount consideration, and the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.   

2.     It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living.   

3.     The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.   

4.     Cases do, unhappily and infrequently but occasionally, arise in which a court is compelled to conclude that in existing circumstances an order for immediate direct contact should not be ordered, because so to order would injure the welfare of the child: see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.   

5.     In cases in which, for whatever reason, direct contact cannot for the time being be ordered, it is ordinarily highly desirable that there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established.”

35.  C has referred me in addition in his closing submissions to a number of cases in which findings of parental alienation were made or it was discussed:

 

-          A (A Child) [2013] EWCA Civ 1104 McFarlane, Aikens and Briggs LJJ - setting aside decision not to order contact to father despite findings that mother had prevented him having a positive relationship with his daughter and had influenced her wishes and feelings not to see him;  

 

-          R (Parental Alienation and Suspended Transfer of Residence) [2019] EWFC 62, HHJ Bedford - in which findings were made that the mother had acted so as to interfere with the children’s relationship with their father causing them emotional harm.  Parties agreed shared care arrangement and for a transfer of residence to father if mother breached;

 

-          Re S (A Child: Transfer of Residence) [2010] 1 FLR 1875 and subsequent cases [2010] EWCA Civ 219, [2010] EWHC B2 Fam, [2010] EWCA Civ 325, and 11 August 2010.  HHJ Bellamy having made findings that the mother had acted to alienate the child from his father, ordered transfer of residence.  Attempts to implement it failed, the mother appealed the original order and an order for enforcement.  The Court of Appeal overturned the enforcement order and made an interim care order providing for the child to be placed in foster care in order for the transfer of residence to be effected.  Ultimately it was not successful and the father abandoned his attempts to enforce the order;

 

-          G (A Child: Intractable Contact) [2013] EWHC B16 (Fam), at a final hearing in 2006 by consent the parties provided for direct contact three times a year and indirect contact on special occasions.  The father was found to have a lack of insight into his intimidating and rigid behaviour and the impact of it on the others, the extent to which he undermined the mother as primary carer.  His pursuit of contact with his daughter was described as ‘an obsession’.  A section 91(14) order was put in place for 6 years, he made two applications within that period and a third the day after the s91(14) order expired. HHJ Bellamy found that the child’s wishes and feelings consistently expressed to the Cafcass worker were rational, congruent and genuine and she was not simply expressing the views of her mother.  He accepted that the child’s emotional welfare required that she be protected against the kind of behaviour previously exhibited by the father and acknowledge that she would be distressed if contact was ordered which departed from what she had requested.  Direct contact was ordered 8 times a year with indirect contact and a s91(14) order to last until the child’s 16^th birthday;

D (A Child: Parental Alienation) [2018] EWFC B64, HHJ Bellamy - D had lived with his father for 8 years until 2016.  At a fact-finding hearing the judge found that D had thereafter become alienated from his father as a result of his mother’s actions in undermining the father’s relationship with D in order to achieve her objective of him living with her, which objective he found she had pursued obsessively;

 

B (Change of Residence; Parental Alienation) [2017] EWFC B24, HHJ Gordon-Saker the court found that the mother had alienated the child from her father and an order providing for the child to live with her father was made;

 

Re H (Parental Alienation) [2019] EWHC 2723 (Fam), Keehan J - this was the sixth set of private law proceedings between the parents’ separation in 2007 and the final hearing in 2019.  The Court found that the mother had raised allegations of domestic abuse on several occasions, all of which had been dismissed.  The judge found that the mother had alienated H from his father, and the only means by which he could enjoy a relationship with both parents was to transfer residence to the father;

 

Re S (Parental Alienation: Cult)  [2020] EWCA Civ 568 Jackson, McCombe, King LJJ - appeal allowed from dismissal of father’s application for child to live with him notwithstanding findings of mother’s adherence to a cult, and that a process of alienating the child from her father had begun;

 

Re T (a child)(contact: alienation: permission to appeal) [2002] EWCA Civ 1736 - permission to appeal granted where a judge had failed to make a finding on the question of whether the mother had engaged in alienation, which was a critical issue in the case;

 

Re A (Children: Parental Alienation)[2019] EWFC, 24 September 2019, HHJ Wildblood QC in which findings were made that the mother had alienated the children from their father:

 

'I have no doubt that the three experts are right to say that this mother has alienated the children from their father. The relationship between this mother and these children is deeply enmeshed and their perception of this father is skewed and dominated by the mother's own emotional vulnerability. The mother has a deeply entrenched set of beliefs which are not receptive, at present, to the reasoning of others. I find that she is aware of the consequences of her actions upon the children's emotional welfare but considers that her actions are justified.'   

 

36.  C has referred me to the following passages from leading judgments of current and previous Presidents of the Family Division:

 

 Re L, V, M, H (Contact: Domestic Violence) [2002] 2 FLR 334 at 351per Butler-Sloss, P:  

There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their  children from their fathers without good reason and thereby creating this sometimes insoluble problem.  That unhappy state of affairs, well known in family courts, is a long way from a recognized syndrome requiring mental health professionals to play an expert role. 

 

37.  Sir Nicholas Wall on 13 April 2010 (C has not given me the name of this one so I have not been able to find the citation as I have with the other cases above):

The courts recognise the critical importance of the role of both parents in the lives of their children. The  courts are not anti-father and pro-mother or vice versa. The court's task, imposed by Parliament in s 1  of the Children Act 1989, in every case is to treat the welfare of the child or children concerned as  paramount, and to safeguard and promote the welfare of every child to the best of its ability … Unless  there are cogent reasons against it, the children of separated parents are entitled to know and have the  love and society of both their parents? 

 

38.  Sir James Munby, P on 11 January 2013 (although the link to which C refers me is to evidence to Parliament’s constitutional affairs committee on Tuesday 2 May 2006 when the former president was still a High Court Judge https://publications.parliament.uk/pa/cm200506/cmselect/cmconst/uc1086-i/uc108602.htm ):

Mr Justice Munby: Indeed. Alienation in this context is a term of art, as you no doubt appreciate, which  is used by some but by no means all experts, and has become something of a slogan in some quarters.  Many people in this country, both judicial and non-judicial and experts, think the more helpful way of  looking at this is not so much parental alienation - certainly if you attach to it the word "syndrome" but  rather talk about intransigent parents or parental intransigence, I have no doubt myself that there are  intransigent custodial parents who, for one reason or another, quite deliberately set out to prevent, to  destroy a relationship between the child and the other parent, or set out to prevent the resumption of  such a relationship. There is no doubt about the phenomenon.

 

… one could adjust the process so that the period in which such cases last is measured in weeks  rather  than  months,  and  months rather  than  years.  I  have  not  the  slightest  doubt  myself  that  in  the  most  intransigent case a significant contributory cause to the eventual problem is the sheer passage of time  and the fact that as a result of that parents become more and more entrenched and intransigent; and  when you are the age, dare I say it, of most people sitting in this room, three months is not very long; but if you are a young child three months is a very long time indeed.   

 

39.  On 28 July 2018: Sir Andrew McFarlane, President of the Family Division in a  ‘Keynote  Address’  in  2018  Families  Need  Fathers  Conference  2018  London: Courts and Tribunals Judiciary:

 

From my experience as a first instance judge, albeit now more than 7 years ago, I readily accept that in  some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the  other parent so that the child holds a wholly negative view of that other parent where such a negative  view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship.  Further, where that state of affairs has come to pass, it is likely to be emotionally harmful for the child  to grow up in circumstances which maintain an unjustified and wholly negative view of the absent  parent. 

In this regard, the airport incident was of importance. The judge's finding as to what took place, and, in  particular,  the  motivation  of  the  mother  and  the grandmother  in  acting  as  they  did,  is  not  directly  challenged on appeal, nor could it be. The judge was entitled to rely upon that incident in support of the  wider finding that, in reality, nothing had or would change in emotional terms for L if he were to remain  living in the maternal household.  

40.  I too readily accept that in some cases a parent can, either deliberately or inadvertently influence their child so as to hold a wholly negative view of the other parent where it cannot be justified by reason of that parent’s behaviour either towards the child or the parent.  Further, I accept that where that occurs, it is almost inevitable that the child will suffer emotional harm as a result of the interference of the relationship with them and both parents.  That is not just about being prevented from having a relationship with one parent and missing out on opportunities to spend time with one parent and members of that extended family, but the shame, guilt or other complex emotions that may arise as a result of that rejection.  Further, I acknowledge that in some cases emotional harm is also caused from the enmeshing, or as Mr Woodall describes, the hyper-alignment of a child with the other parent, leading to the child perceiving a need to placate, to appease or pacify that parent notwithstanding that in doing so they are acting against their own welfare interests in rejecting the other.

 

41.  As can be seen from the cases to which C has referred, each of them turns on its own specific facts.  The Court must in all cases survey all of the evidence and in the first instance address the question of whether or not the child has become alienated from one parent, or enmeshed or hyper-aligned with the other, and if so, what is the cause of that.

Enforcement orders

 

42.  Enforcement Orders are dealt with under Section 11J of the Children Act 1989. The court has to be satisfied to the criminal standard of proof - beyond reasonable doubt - that an individual has failed to comply with a provision within the order.  If so satisfied, the burden of proof is then on the individual failing to comply with the Child Arrangements Order to show that they had a reasonable excuse for breaking the order, and this is determined to the standard of a balance of probabilities.

 

43.  In deciding whether to make enforcement Order the court must be satisfied that it is necessary and proportionate to the seriousness and frequency of the individual breaking the order.

 

44.  The court will consider the following criteria set out at paragraph 21 of Practice Direction 12B of the Family Procedure Rules  including:-

·         The reasons for the noncompliance;

·         The effect of noncompliance on the child/children concerned;

·         The welfare checklist including the best interests of the child/children involved;

·         Whether advice from CAFCASS is required for moving forward;

·         If the parents should attend any Separated Parents Information Programme or Dispute Resolution Programs

·         Whether an enforcement order may be appropriate.

Section 91(14) Children Act 1989

 

45.  Section 91 (14) Children Act 1989  provides that ‘On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without the leave of the court’.

 

46.  The court must balance the welfare of the child and the right of unrestricted access of the litigant to the court. The following are principles of general application (Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573):

 

a)      The welfare of the child is paramount: s. 1 (1) applies.

b)      The power is discretionary and all relevant factors must be weighed in the balance.

c)      An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard on matters affecting his child.

d)      It is generally a weapon of last resort in cases of repeated and unreasonable applications.

e)      A restriction may be imposed where the welfare of the child requires it, but where there is no past history of making unreasonable applications.

f)       The degree of restriction should be proportionate to the harm it is intended to avoid. The making of these orders should always be exceptional and careful consideration in every case should be given to the duration of the order to see that by unnecessary extension it did not prejudice rights of access to the court. Per Thorpe LJ in Re C (Litigant in Person: s. 91(14) Order) [2009] 2 FLR 1461 at [9].  

 

47.  Where there is no history of repeated and/or unreasonable applications, the Court should apply a two-stage test. First, the court must be satisfied that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the court and the all too common situation where there is animosity between the adults in dispute; secondly, that there is a serious risk that, without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain.

Evidence

Nick Woodall

 

48.  Mr Woodall had four separate sessions with the mother, five with the father, one short conversation with A and then observed A and his father having contact with one another seven times.  All of these interactions took place remotely.

 

49.  He prepared two reports and was cross-examined over the course of a whole day.  In his oral evidence he explained the theory behind his conclusions, starting with attachment theory. 

 

50.  He said that attachment theory tells us children are evolutionary and biologically driven to build attachment relationships to each of their parents or other significant caregivers; ‘We come into the world fearing we won’t survive and will be annihilated, but will survive because our parents give us a sense of security in the world and provide for us predictably and sufficiently - not just warmth and shelter but by the warm light of their love they teach us that we are loved and lovable.’  He said that every child has a unique and separate attachment bond to each of his parents, but where parents care for their child together, children can be fluid and shift their attachment between one parent and the other by and large - ‘so a child has unique relationships to each parent, but a unified attachment relationship to the family.’

 

51.  When parents separate, Mr Woodall said that a child is ‘trying to maintain the biologically and evolutionary imperatives to each of their parents but in a fractured relational world - like an earthquake - the landscape they inhabited is now ripped asunder with one parent on each side of the fracture.  The child has to move physically and psychologically across the divide.  An attachment no man’s land opens up between parents.  Most children manage to do it - it may always feel odd that their parents are no longer together but a child typically can do it.  However, when that gap becomes too big and the pressure becomes too great, the risk is that the child psychologically splits and can no longer find a way to maintain relationship to each of those attachment figures.’

 

52.  In A’s case, Mr Woodall expresses the opinion that he is at the beginning stages of ‘splitting’, that he has become hyper-aligned to his mother, causing him to reject his father.  Mr Woodall says that with such rejection, counter to the evolutionary drive to attachment to that parent, comes shame, confusion and a loss of self.  This causes its own difficulties, and often then leads to a child coming up with reasons to justify the rejection.  Mr Woodall said that in his professional experience, the reasons given generally don’t sit with reality - they can be extreme, for example allegations of sexual or physical abuse - or very minor, for example a child saying that they don’t want to have contact with a parent because he interrupted them playing on their computer.

 

53.  Mr Woodall’s analysis of A’s situation is that the reasons A has given for not wanting to spend time with his father are spurious - and not such as could possibly justify him rejecting his father.  On that basis, Mr Woodall concludes that the cause of the ‘splitting’ is that A is responding to intrapsychic messages from his mother i.e. consciously or unconsciously given messages that he needs to act in order not to lose his attachment to her.  Mr Woodall suggests that it is invariably the case that a child will align themselves with the parent they fear or regard as unstable - a child’s greatest fear is attachment abandonment.  In this case he suggests that A is hyper-aligned to his mother, to protect her well-being, to maintain his attachment with her, and he is responding to intrapsychic messages from her by appeasing, placating or ameliorating her behaviours.

 

54.  As a theory this was cogent and coherent, and Mr Woodall was a fascinating and erudite witness.  However, expert evidence does not stand alone in a case.  In Re JS [2012] EWHC 1370, Baker J (as he then was) said:

 

40. Fifthly, amongst the evidence received in this case … is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L  [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J).

 

55.  Further, even before Mr Woodall’s psychological formulation is set within the context of all the evidence in the case, I have some difficulties with the way in which he formed his conclusions.

 

56.  I need to come to my conclusions based not on general theories but about this particular child, what he is saying, and what the reasons are for it.  Mr Woodall said that A’s reasons for rejecting his father were ‘spurious’, but he does not have the evidence upon which to come to that conclusion.  He did not spend any time with A to enable him to explore with A whether he has actually ‘rejected’ his father, and if so what the reasons for that might be.  He had only two short informal meetings with A to introduce himself in which they talked about school and lockdown, cricket, Minecraft and making 3D models on Blender.  He said that A ‘seemed bright and interested, willing to talk and share elements of his world’, but he did not dig deeper into what he was saying about his father or why.

 

57.  Mr Woodall’s conclusions from the observations of the sessions that A had with his father do not sit comfortably with the evidence of the sessions provided by Mr Woodall’s own detailed and comprehensive notes.  Mr Woodall identifies that when they are talking about ‘safe topics’ like cricket and rugby, the interaction is good, this is A’s ‘authentic self’, and is evidence of A’s underlying affection and connection to his father.  It seems to me that the notes show something rather more complex:

 

(i)                 A is often testy, grumpy, dismissive, surly and playing a computer game at the same time.  This is often in direct reaction to Mr Woodall or the father not listening to him, not picking up on his cues, shutting down conversation, or the father persistently asking him when he is going to see him, and pressing him.  I do not understand why this part of A’s responses are to be regarded as ‘inauthentic’ or fundamentally ‘rejecting’ of his father rather than anything else;

 

(ii)              Mr Woodall confidently states that there is a significant change in A’s presentation following 1 June when he says that the mother ‘tried to get him removed from the case’.  I do not see it in the notes.  There is no change.  A is consistently the same in the contacts, the father is consistently the same;

 

(iii)            There are times when the conversations are more positive, A is more relaxed and they talk about cricket or rugby or the father listens to A talking about something he is interested in.  This may well be A’s ‘authentic self’ and is illustrative of the existing bond between father and son.  However, that is not inconsistent with the wider evidence that there are lots of times when A does have a nice time with his father - especially when he feels his attention on him, when they are doing an activity together that they enjoy, like walking a dog, eating out, seeing A’s older sisters, and when A is not feeling under pressure.  This ‘authentic self’ exists under the mother’s influence, so the fact that it was evident in conversations observed by Mr Woodall is not surprising.  If Mr Woodall is suggesting that this part of A’s personality was seen only in the contact sessions and that otherwise A has been entirely rejecting of his father, that is not in my judgement consistent with the weight of the evidence. 

 

58.  Mr Woodall describes the nature of the attachment between the mother and A as unstable and postulates in his formulation that this is the driver to A’s hyper-alignment with his mother.  But he never observed A with his mother, and has not shown from what part of the evidence he comes to the conclusion either that their attachment is marked by fragility, or that this is the driver of A’s hyper-alignment.  It appears that he has reached that conclusion by a process of elimination.  He finds no good reason for A to reject his father and therefore concludes that the mother must be the root cause.  This is unscientific.

  

59.  I found there was a tendency by Mr Woodall to fit the evidence to his cogent and coherent formulation, rather than standing back and testing it.  Not just in terms of his conclusions about the mother, which I find to have been formed without a sound evidence base, but because he put a lot of focus on a dispute that arose between the mother and Mr Woodall himself.  She raised queries about data protection, and his registration and his professional experience and expertise.  He said she wanted him removed from the case and suggested that A’s attitude in the sessions changed thereafter, and this was evidence of mother’s influence.  I did not see such a change in A having reviewed the notes, and do not accept Mr Woodall’s analysis here.

 

60.  If it is right that A is rejecting his father due to a hyper-alignment with his mother, then Mr Woodall says that the solution is for the mother to simply exercise her parental responsibility and get A to do what he is told to do, in the same way that she is able to tell him to go to school, or tell him not to experiment with Class A drugs.

 

61.  Mr Woodall said that what A needs is ‘a structure around his life which provides a protected space for him to enjoy the natural relationship with each of his parents’.  He did not set out the theory or evidence for such an approach, nor explain why it is that he considers such an order made now will have more effect than previous child arrangements orders made in this case.  Mr Woodall has not identified the mother to be actively coaching or manipulating A, but says the messages are transmitted ‘intra-psychically’.  If she is unaware of how she is communicating these messages to A then by what means does he suggest those messages are going to stop being transmitted?

 

62.  Because Mr Woodall has not spent time with A exploring his wishes and feelings there is no analysis about what the impact would be on him of an order being made requiring him to spend more time with his father than he currently is, or for a shared care arrangement.  This is not to single out Mr Woodall for criticism, but just to highlight that evidence in this case comes from a number of sources, in particular from the mother and father, and in respect of A’s wishes and feelings, from his children’s guardian.

 

63.  Mr Woodall did make some observations about C and the way he interacted with his son which were consistent with concerns the guardian, teachers and social workers have raised about his rigid and dogmatic approach:

 

He said, he had ‘something of an inability to be self-reflexive and seeming incapable of responding to my request that he should avoid discussing ‘issues’ and .. persisted in asking A when he was going to visit father.’

 

‘… I gave C some advice about how he should conduct himself with A part of problem identified is father has tendency to read out court orders or govt regulations on covid to A I do not consider to be helpful and I suggested he didn’t do that or spend time trying to resolve the problem or asking detailed questions about matters before the court but simply to engage in ordinary conversation about what doing and what A had been doing - that is something I would normally do to see that parent can behave in ways to act on instruction to see how child focused and to correct any behaviours that may be interfering with relationship between parent and child’

 

‘… In circumstances where A is trying to maintain attachment relationships the father’s inflexibility and inability not to continually refer to the problem in all the sessions with A was unhelpful.  And I think to some degree father may have become fixated wit this idea of parental alienation and a number of other things which he considers to be unfair - it appears his way of processing those things is at times quite literal - he seeks to educate A about the problem as a therapist experienced in working with children.  In these circumstances I would say it is entirely the wrong approach and unhelpful.’

 

64.  Having made these observations, Mr Woodall thought about whether or not the father’s behaviour could justifiably cause his son to reject him.  He said, ‘many children have parents who are fixed thinkers or have autistic traits that compel them to behave in ways that don’t ideally meet the child’s needs but doesn’t cause the child to reject the parent.’

 

65.  So he did address his mind to the question, but he has addressed the question in general, and not with regard to this particular child, his experiences of his father and the long-standing parental dispute.  

 

66.  Mr Woodall’s observations chime with those of A’s teachers, spoken to by Ms S as part of her assessment.  A’s headteacher from primary school is reported as saying the following:

 

Ms N reported that the school were aware A’s parents went through a very acrimonious divorce. A’s parents are unable to resolve any issues between themselves, without resorting back to the courts.  Ms N stated the relationship between C and school could be difficult at times. C would constantly contact the school if he perceived there was an imbalance around how he was being treated, and how he perceived B was being treated.

 

Ms N reported that B can get anxious about dealing with C, however B would try to keep the peace and steer the middle ground between A and his father.  Ms N said C clearly loves A, but C does not always know how to parent A in a child centred manner. C does have strong views, and A is expected to go along with the decisions that his father makes.

 

67.  The safeguarding lead at A’s secondary school said the father ‘continually talks about parental alienation’.  She described a pattern whereby the school would have to manage a situation where A was refusing to go with his father after school, starting with an evening where both parents and A were at the school until 7.30 p.m., thereafter:

 

Ms R has reported that since then there has been a pattern on Wednesday and Friday evenings, which are the nights when A is supposed to go to his father’s house to stay, where C turns up at school, and A runs away from him.  A usually runs back into school and most recently into her own office.  Ms R said she then must spend a considerable time trying to persuade A to spend time with his father.  A continually texts his mother until eventually his mother arrives at school.  His mother usually ends up taking A home, as A gets more and more stressed.

 

Ms R has stated A’s father turns up faithfully every week for contact and is clearly concerned about the issue.  C obviously wants to have a better relationship with A. C talks about arranging for A to see other family members and friends from his previous school.  C also tries to interest A in rugby and talks about other activities.  Ms R stated she does think that C is really trying.  C also has raised his concern that if he does not turn up and stay (even when he knows A has run off or said he does not want to go ) that this may count against him in court.

 

Ms R has stated that in her opinion C clearly does not know how to talk to A.  He talks to A more about how A is ‘breaking the law’ by not coming with him, rather than talking to A about how he wants to spend time with him.  Ms R said she has heard C tell A he has become ‘weak-minded.’ …

 

Ms R has stated C can be very rude and patronising to staff and has stated staff should physically compel A to go with him.  It has been explained on many occasions that staff cannot do this.  C has also videoed and photographed members of staff on the school premises, while there were pupils around.  C has not done this since Ms R told him the school would file a police report on safeguarding grounds.

 

68.  In his closing submissions C effectively dismissed Mr Woodall’s observations about his presentation and described them as ‘make weights’, put in the report to show balance.  Mr Woodall’s notes were detailed and comprehensive, I find that he carefully noted what he saw and that he has given his professional opinion in a serious way.  His observations of the father are consistent with those of other professionals.  I do not consider he made these comments simply out of a desire to appear more even-handed or balanced.  I find he has recorded his true observations.

B

 

69.  As well as the final hearing in 2017, I have seen the parties in person at a number of case management hearings in 2019 and throughout 2020.  My experience of these parties then and since has only served to reinforce and consolidate the impressions that I formed of them in 2017.  In their all interactions with the Court, with one another, with other professionals, in their statements, text messages, emails and oral evidence, they have both presented much as they did in the previous proceedings.

 

70.  B asked clear, relevant questions of the witnesses, and when she was being cross-examined, gave clear, reasoned answers relevant to the point.

 

71.  Her recollections of events were consistent with the contemporaneous emails or text messages, and I found her to be a straightforward and reliable witness. 

 

72.  As I found then, I found the mother to be child focused, to be insightful as to the wishes and feelings of her child, to be listening to what he is saying, not subordinate to his wishes, but trying to understand the reasons for his feelings, and to find ways to support him and his father in addressing difficulties.  She is able to articulate well the reasons why A has found himself in opposition to his father and why for him, it is not something trivial. 

 

73.  On occasions, she would appear to have interpreted what A is saying about his father as indicators of more significant harm than is justified on the evidence, and to continue to press concerns even after they have been independently investigated.  For example, the concern about giving out of date medication does appear to have been a one-off and easily resolved.  The local authority and police concluded that when attending school to persuade A to come with him as the Court orders provided, that A’s father had held him by the wrist, and A had pulled and  tugged away.  They did not consider further action was required other than to advise the father against doing this in future.  The mother still recounts a much more serious assault than those investigating identified.  In the summer of 2019 she reported a number of concerns to social services which A did not repeat to his teacher when the ‘three houses’ work was done with him. 

 

74.  She has been criticised at times for removing herself from the situation and framing what is going on as a conflict between father and son over which she has no influence.  She says that they both have a stubborn streak and she has tried all she can to encourage, mediate, or be firm, but ultimately they cannot move forward where A’s father will not acknowledge that the relationship is damaged and needs repair, and will not therefore take any steps towards improving it, but simply demands that she makes A available to spend time with him and places all the blame at her door.   

 

75.  It has been a difficult situation to manage.  In hindsight, I can see that where the mother has sought to support A, she has given him an alternative which has made it easier for him not to spend time with his father, or has undermined the father’s parenting.  For example, she describes packing food for A to take with him to school to make up for what she perceives as a deficiency in the father.  Or if the holiday to Cyprus did not work out she had already communicated to A that he could go on a holiday with her and her partner.  Or she has collected A from his father’s house or from school when he texted her to collect him.

 

76.  However, having made these observations, as other professionals have, I do not find this amounts to evidence of any deliberate plan or course of action by the mother to alienate A from his father.  I find that she is supportive of A having a relationship with his father, that she wants their relationship to improve, that she wants A to have a nice time with his father and that she has consistently over the years acted in a way to try to support this, at the same time, trying to balance that with showing A that she is listening to him, understanding his concerns and helping him to address them by advocating with his father, or reporting to teachers or social workers.  She is hampered by the father’s mistrust and hostility towards her, and his treatment of her every move as being part of an agenda to alienate A from him, in circumstances where I am not satisfied that there is evidence that this is a course that she has pursued whether consciously or unconsciously. 

C

 

77.  The father was convinced that the mother had an agenda to separate him from his son back in 2017 and his view has only hardened since that time, strengthened - understandably - by Mr Woodall’s conclusions. 

 

78.  His recall of factual details is impressive and he had a good recollection of words or phrases said at particular times, and the context for any particular event.  He has built up a very detailed knowledge of a wealth of documentary evidence.  I did not doubt his ability to be accurate in his recollections.  However, his perspective or interpretation of those events was striking.  He sees everything through the prism of parental alienation and says simply that the Court must act to restore his relationship with his son by exerting pressure upon the mother, through Court orders with consequences for their breach, or else a transfer of residence of A to his care.

 

79.  He was very unhappy with any hint of criticism of his own actions and I found him wholly unwilling or unable to reflect upon how the way he responded to A in certain situations may have caused A to be variously upset, disappointed, confused, left out, hassled or put under pressure.  It is of great concern to me that he was unable to attribute to A a voice of his own.  He suggested a number of times during the hearing, that A was an extension of his mother, that emails written by him were done so under her influence, and merely an expression of his hyper-alignment to his mother.  A said to the guardian, that if he said something his father didn’t agree with, his father would say words to the effect ‘that’s your mother talking’.  The guardian noted this was something he had said to a number of different people, and this can be seen from the CAF assessment.   

 

80.  The father challenged Mr Woodall on his evidence that he (the father) showed ‘ingrained hostility’ to the mother.  The father said ‘if you can find hard evidence that I am expressing any kind of regular animosity against the mother I would be very surprised.’  My assessment of the father is that he was relentlessly hostile towards the mother throughout the hearing.  This is a continuation of the hostility that has been present for years.  All his reflections about the past were highly critical of the mother at every stage.  The father suggested the mother was psychologically damaged.  He has made allegations about her family which he has repeated to professionals, which she denied.  He blames her entirely for the situation that has arisen between him and A.  Even though he uses please and thank you, his communications with her are curt, demanding and high-handed (‘Where is A please? There are no excuses.’  .. ‘When are you going to return A’s clothes he wore for the wedding please B?’)

 

81.  During the hearing and in closing submissions the father sought to portray the mother as ‘money-loving’, something he associated with her tribal heritage.  He has suggested that she has ‘racialised A’ to behave in the same way.  His example was a suggestion that he buy A a kit computer as a Christmas present, she says she was merely making a suggestion about something A was interested in, and which she thought would present a good opportunity for them to work on a joint project.  In the event A didn’t get the kit, his mother says because it was made conditional upon him spending Christmas with his father.  He suggests that the mother shamelessly ‘played the race card’ in manipulating A into wanting to go to [the first secondary school].  The reasons A gave for wanting to go there were principally to do with its proximity to where he lived with his mother. 

 

82.  I am concerned that the father’s negativity towards the mother is now being transferred to his son.  In line with Mr Woodall’s report, there is a risk that the father identifies A’s ‘authentic self’ only as the sweet, loving, younger boy who did not disagree with or challenge his father, and any opposition from A to him as channelling his mother’s influence, which he regards as only negative. As he seems to have in mind that his son’s responses to him are informed by his mother, he responds to him in a similar way, which can come across as over-bearing and curt.  If criticised about the way he communicates to his son he tends to blame A for not being there enough or not being receptive to conversations.

 

83.  When A was in hospital with appendicitis, the messages sent by his father to him were very much in the style of messages sent to his mother, and soon became focused on the father’s need to be allowed to visit A in hospital over anything else.  The messages quiz A about covid testing, the number of children on the ward, his symptoms and drew him into his dispute, at a time when A had surgery to contend with and had been in a lot of pain.  The father rang the ward, and eventually complained to the hospital.  In the end A became frustrated with his father and said, ‘I’m not going to speak just for you to spew hate against hospital staff when I am sick’. 

 

84.  A had been admitted a few days earlier for the surgery but it was cancelled at the last minute.  On 22 January he had told his father at lunchtime the operation was scheduled.  Just after midnight his father texted him and they had an exchange in which A told him the operation had been cancelled, that he was in pain, and had only eaten one meal.  His father asked him - perfectly appropriately - why, whether he had slept, and about fluid intake.  At just past 1am he told him he had cut some branches down that day and then a minute later he said, ‘what would you think A if I were to be married again?’, attaching a photograph of [name redacted], who would become his wife in May. 

 

85.  In cross-examination he could not see any difficulty with having broached this with A in this way and at this time.  He said that it was no surprise that A had not responded and said this was because he was no longer the ‘wonderful loving boy that we all knew’, that ‘what his mother was doing with him makes it difficult to get in a relaxed conversation with me’.  He said he had no real opportunity to discuss it earlier with A, because, A was the one who resisted having conversations with him about anything.

 

86.  The father communicates with A about his medical conditions without filter, listing symptoms and their possible cause without apparent concern that he might be causing anxiety or alarm.

 

87.  Mr Woodall said that in the contact sessions, the father ‘was unable not to raise issues relating to the case and therefore would consider that to be somewhat inflexible and intransigent and repetitive’.  The father defended himself and said that he was not going into legal issues but under pressure from the Court to promote a practical solution in terms of progressing contact, he raised with his son.  Whether this was his intention at the outset or not, it can be seen from the notes that it did not go down well with A, who responded negatively, yet the father was not able to pick up on cues, and I accept Mr Woodall’s evidence that notwithstanding the father then being advised not to do this, C continued to press, to explain about the order, and this made A feel pressured.

 

88.  There is in my judgment overwhelming evidence that A’s responses to his father have been informed by his experiences of him, and that things have deteriorated significantly since the time decisions were being made about secondary school.

Charley Hampshire

 

89.  Mrs Hampshire’s evidence was thoroughly tested in cross-examination - C questioned her for over four hours in total.  I found her an impressive witness.  She is very experienced in the area of parental alienation, having been involved in devising the Cafcass parental alienation toolkit, delivered training in respect of it nationally, and she has been involved in a number of cases in which parental alienation has been an issue.  She explained that the toolkit is not a diagnostic tool, but a thinking tool, to inform analysis, and that she had used it to inform her own analysis in this case.

 

90.  Mr Woodall has not seen A for a year, Mrs Hampshire had the benefit of seeing him much more recently.  She has spoken with other professionals involved with him and she has spent time specifically exploring his wishes and feelings with him.  Unlike Mr Woodall she was present throughout the final hearing so saw both parents giving evidence over three days.

 

91.  She recognised that there were some aspects of A’s presentation that could be said to be consistent with a child who was alienated from or rejecting of a parent for reasons which had no apparent justification, but said that these behaviours were on a spectrum.  Taken as a whole, she did not regard A as a child who had been alienated from his father by his mother. 

 

92.  The father challenged Mrs Hampshire’s view that as A was approaching adolescence then he may be expressing different views from those he did as a young child.  He said because of his particular medical condition which made him currently pre-pubertal, behind the majority of his peers, he could not be said to be entering adolescence and therefore her whole notion of a change attributable to this was demonstrably wrong.  However, it is an over-simplification of her evidence to say she attributed A’s views to an onset of adolescence.  Secondly, she was  clear and persuasive in her evidence that when she talked of adolescence, she was not referring only to hormonal changes and the medical onset of puberty, but to considerable physical, emotional, developmental and neurobiological changes.  She cited as influences on this, his starting secondary school, having some greater independence, contact with peers, or exploring debate, critical analysis and self-expression in lessons.  In her report she says as he progresses into adolescence, self-determination and a sense of agency are becoming increasingly important to him.  She says it is a time when he would be expected to start questioning his parents’ authority.

 

93.  Mrs Hampshire’s evidence sets out clearly the evidence base upon which she relies to form her opinions, which are well-reasoned and based on a clear and comprehensive analysis of the history of the case, the family dynamics and A’s experiences, wishes and feelings. 

Analysis of evidence

 

94.  The guardian identifies that A has been exposed to the acrimony and ill-feeling between the parents for all his living memory.

 

95.  A said to her, as he appears to have said to the safeguarding teacher at school, that essentially he did not really enjoy himself much at his father’s, he found it a bit boring, and does not feel that his father pays him much attention.  He says when he is with his father he would be sitting at his computer rather than interacting with him. 

 

96.  Contrary to Mr Woodall’s opinion and the father’s case, I do not find that A has rejected his father as whole-heartedly as has been suggested.  A it seems to me has persistently tried to find ways to express his views to his father, but even in relation to very small things, he finds that his father does not wish to, or is not able to listen to him, and this has then led to apparently small matters becoming symptoms of a wider and more serious difficulty with their relationship.

 

97.  A’s principal difficulty with his father as expressed to the guardian is that his father ‘has to be right about everything and dismissed his views and opinions. …. He feels his father wants everything on his terms without any room for compromise’:

 

‘A also feels his father will not listen when he is feeling unwell and does not take him seriously, for example when he was staying the night at father’s house in January and had stomach ache, he said that his father would not listen or believe him.  A had ended up being admitted to hospital and having his appendix removed a few days later.  A also said that his father will call him a ‘wimp’ regularly, echoing the comments expressed by A’s school staff to the social worker, such as C telling A he was ‘weak minded.’

 

A told me that he felt that they get on better with his father when they watch rugby together - they liked to go to [club team] matches, prior to covid 19, and they still watch rugby on television.  However, A felt that his father will frequently change the goal posts for his visits - he thinks he lures him there to watch rugby and then makes him stay longer when he is not expecting to.  He has reached a stage where he does not trust his father and feels he is always trying to trick him, for example last summer he thought they were all going on holiday with his sister [V] but he only found out that V had backed out when she told him herself.’

 

98.  I find that the father has treated all of the issues raised by A as a manifestation of the continuing conflict between him and A’s mother. 

 

99.  At times, I find the mother has been quick to raise complaints with the school, police or social services, placing blame squarely at the father’s door which has escalated the conflict.  However, I reject the finding that the mother has acted in a way either by design or sub-consciously, so as to influence her son or seek to alienate him from his father.

 

100.                      I accept the guardian’s analysis that the difficulties in A’s relationship with his father are ‘largely related to the father’s rigid and inflexible communication and thinking style, becoming increasingly incompatible with A’s developing needs as an intelligent and articulate young person, who is exerting his autonomy and forming his own views of the world around him.’

 

101.                      I agree with her conclusion that this has led the father to show a lack of insight into A’s needs, and to have become dismissive of his feelings.

 

102.                      This has manifested itself in a number of ways over the past couple of years, and has in my judgement led to the current situation where A is saying that he would like to see his father, but that he would like their relationship to be different, and he would like to be relieved from the pressure he feels of his father always wanting him to do as he wishes, in particular in respect of staying overnight.  I shall set out some examples of the situations which I find have led to this state of affairs.

 

103.                      The father’s anger about the choice of secondary school.  A had his own views about this but his father has never once spoken to him about them but dismissed out of hand any benefits to A of the [first secondary school], and was highly derogatory about it from the start.  He accused the mother of subterfuge and manipulation, but she did apply to the Court in good time before any applications needed to be made.  A was in catchment for the [first secondary school] and did not want to travel to [previously agreed] school.

 

104.                      The holiday to Tenerife in August 2019.  A had said he had not enjoyed the holiday in Florida the previous year and said he had seen his father on adult websites.  I accept the father’s evidence that this was on dating websites, but he rather missed the point which was that A had said that the father did not seem to want to be spending time with him on holiday.  In cross-examination, the father was dismissive of this.  He blamed A, then his mother, and with reference to the particular incident, did not identify that his actions in wanting to finish his message when A had been upset to see what he was doing, might have required some response other than to be annoyed with A.  In his oral evidence he said:

 

‘I do not normally spend much time on dating sites but I was in [place name redacted] only because A insisted on being on internet so I had to wait for him by the server as I declined to pay for it in the room to enable him to be on it all hours …

 

.. the only thing making me stay near the swimming pool was A wanting to play internet games … it was only when I was having to wait for A - and then he turned round on this incident - quite a turning point when I was writing a long message and he said he wanted to go straight away and back to the apartment - I said let me finish - he wouldn’t wait he messages his mother she rings me and everything is in trouble.’

 

105.                      The following year when A said he did not want to go to Tenerife, the father did not take any steps to engage in discussion with the mother or A about how to encourage A that the holiday would be fun.  Because the parents were at that time locked in dispute over schooling, and allegations were being made to school and social services on both sides, there was no opportunity to resolve this.  A’s feelings were never addressed.

 

106.                      From September 2019 when A was refusing to go with his father after school, the father’s response was dogmatic and caused difficulties for staff and for A.  He continued to turn up every Wednesday and Friday, and the safeguarding lead described to the investigating social worker a very difficult situation to manage, with A running away from him.  The description is of the father wanting to improve his relationship with A, but not knowing how to talk to him, and ending up telling him that he is ‘breaking the law’ by not coming to him, or on two occasions holding him by the wrist, which led to A pulling away from him.  Again the father’s actions have emphasised for him the importance of the need to comply with the Court order no matter what, and not to find a way to talk to A and understand his feelings.

 

107.                      In around November 2019 A was upset that his father had looked at his emails when he was out of the room.  His father said that it was his right to do so, and that he was proved justified as he had uncovered evidence of a scheme between mother and son to move to [redacted].  I have not seen the emails so cannot say whether he was right about that or not, but the point is that A was upset about this, regarded it as an invasion of his privacy and wanted his father to apologise.  His father refused to do so, maintained his right to do what he had done, and refused to discuss it further.  Of course any parent is within their rights to ask their child to show them their digital communications, but one would expect there to be some discussion about it.  And this situation is different from a parent monitoring whether A was looking at age-appropriate material, the father was gathering evidence about the ongoing dispute with his mother.  It is not hard to see why A felt this was an unwelcome intrusion.  The father was rigid and intransigent in his response. 

 

108.                      The lost holiday to Cyprus in summer 2020.  It was not within A’s power or right to dictate to his father that he had to bring other family members on holiday, but it was clear from Recorder Weston’s order, and consistent with discussions had with me before the earlier planned holiday to Spain, that the idea behind the holiday was for it to be a family holiday.  The father now says he never made any such promise, and the holiday was not conditional on members of the family joining him and A.  However, on any view, he knew that A understood it was going to be a family holiday but he did not make any attempt to speak to A, to acknowledge that, or to explain the reasons that wasn’t happening.  It did not help the situation that the mother was offering an alternative holiday to A with her and her partner, but I do not find that she was as the father suggests, set on disrupting the holiday from the outset.  She was supportive of the holiday and previously the Spanish one, on the basis that it took place as discussed in Court, with other family members present.

 

109.                      On their own, A’s complaints about his father giving him out of date medicine, or not feeding him food he likes could fit in with Mr Woodall’s thesis that often children who have become hyper aligned to one parent and rejecting of another come up with reasons that are spurious, driven by their shame at rejecting a parent and needing to find some justification.  However, in my judgement these complaints are part of a wider pattern of A saying that even with little matters, he does not feel his father listens to him, and overrides him on everything.   When A stayed a night with his father in January 2021 he complained of stomach pains, and not feeling well, but said his father dismissed concerns about his health as a ‘large red herring’.  A had watched rugby with the father on a Friday evening and his father said it didn’t finish until 10pm, so it would be natural for him to stay the night but A had ‘kicked up a fuss’ and manufactured a situation so that he could ‘get his own way and go to his mother’s house’.

 

110.                      After the operation A told his father he was still recovering, that it hurt running, his father immediately said, ‘Well it is nothing to worry about, for it will cease to hurt in time.’  A did then go and visit his father as planned.  He says that he did not want to stay, this had not been agreed, but his father tricked him by locking him in his bedroom.  A jumped out of a ground floor window and his mother came to collect him.  The father blames A and the mother for this incident for ‘uninvitedly’ coming to collect him.

 

111.                      It could be said that the mother did not help the situation by coming, but I am not sure what she should have done.  The arrangement was that A would not stay the night, he felt pressured and tricked by his father to stay.  Should she have participated in a scheme to get him to stay the night by force? As when he ran away from his father at school, A has clearly been exhibited behaviours communicating his distress, but his father has characterised this only as him being wilful and difficult and enacting his mother’s desire for him not to have a relationship with his father.  

 

112.                      Once A was in hospital, as mentioned above, the father involved A in his argument with the mother and the hospital about wanting to be at his bedside.  I find that this was another example of the father putting his own needs before those of his son and not having insight into the impact of his behaviour on A. 

 

113.                      It was while A was in hospital that his father first intimated he might get married again.

 

114.                      The mother’s evidence was not challenged that A was introduced to his stepmother [name redacted] in his father’s home, that she then left and went to sit in a different room of the house, leaving A watching a recorded rugby match on his own, with a person in the room he did not know and to whom he was not introduced.  It was only at the wedding that he discovered this person was [name redacted]’s sister and that her mother had also moved into his home, with no introduction or discussion with his father about it. 

 

115.                      One wishes the father well in his new marriage, but his lack of consideration for his son from start to finish was notable.  Various aspects of this came up a number of times in the evidence, and what was revealing was the father’s complete incomprehension that A could be other than entirely happy to welcome this as a joyous event for his father, and his rejection of any signs of disquiet as anything except the work of the mother, who he said had been set on doing what she could to interfere and cause trouble for him on his wedding day.

 

116.                      Before the wedding he sent instructions direct to A, was cross with him for not reading them in good time, and not replying with menu choices in good time.  The emails were impersonal, the instructions peremptory and when A said he did not want to be a page boy, the father sent him information about medieval pages, explained why he saw it only as a positive thing for A, told him of the bible reading he was to read and at no point showed any understanding that the occasion might prove difficult.  When A asked what John Dory was he replied simply, ‘Google the words you do not understand!’  When A did give his food choices, the father refused to order him the chips he wanted, ‘no sides’, and despite A saying he didn’t want pudding, his father ordered him one anyway. 

 

117.                      After the text message in the hospital in January the next A knew about his father’s fiancée was another text message sent at 11.59 p.m. on 8 March asking did he want to meet [name redacted]?  A replied ‘??’, his father clarified, ‘my betrothed’.  [Name redacted] had arrived in England that day.  The father said he had tried to introduce this subject before but had no success, although it is not clear what he had done other than send the earlier text with the photograph.  He also said to me in evidence that until he knew that [name redacted] was going to get a visa he did not know if the marriage could go ahead so there was no point talking about it earlier.  He implied that it was A who prevented him from making progress with this because A did not pick up on ‘either of those entrees’.  So it would appear that it was only the two text messages in which he broached the subject.

 

118.                      On 26 May the day before the wedding A texted his father and said he didn’t want to be a page boy, he hadn’t been told what he was going to do, how he was going to do it, or what he was going to wear.  His father replied that he had a new jacket for him, shirt and trousers and he was to come in his own best clothes in order to compare what was best.  He followed up with information about medieval pages and pages of honour, designed to encourage A to think more positively about it, but again, not addressing the concerns that A had raised or showing any understanding for why A may be unsettled or overwhelmed by the occasion.

 

119.                      On the morning of the wedding, A sent this email to his father at 7.46 a.m.:

 

Dad, I am not keen on going to the wedding today.  I have mostly been an afterthought and I still do not know what time I am being picked up, what I have to wear and my roles as a page boy.  It is hurtful to do this to me.  I do not know what is happening and when it is happening.  I don’t even know that much about [redacted] or her mother.  It is as if I am just a bystander watching on.  You have just decided to have a wedding and only just thing about what I did days before.  I had to go scrummaging for clothes yesterday looking for something all because you didn’t get any for me.  I wonder if you even care about me at this point.

 

120.                      A’s email talks about his feelings, describes his perspective and clearly explains the reasons why.  The father suggested that this email was essentially written under the influence of his mother who he suggested was disturbed emotionally by the wedding, had passed this on to A, and magnified his anxiety so as to cause problems for him on his wedding day.  I find the father was wrong to do so, and this is an example of him not listening to A, dismissing difficulties or opposition to him as informed by his mother.  The father’s response to A dismisses his worries as misplaced, blames him for not knowing what is going on because he has not been staying with his father enough, and for not reading the WhatsApp messages:

 

You are not an afterthought at all.  I put you in for a reading weeks ago.  I had arranged for V to pick you up at 14:00 outside reception, so you only miss the last lesson. You have smart clothes here you have never worn, and they are ready for you. If you stayed here, you would know everything. There are four messages on WhatsApp, you have not read. Your menu awaits you. As a page you are not a bystander, but a participant, so the big Humber will take you with [redacted] and [redacted] to [location redacted] where the cameraman will be, who has a drone to photograph the church and [redacted].

 

Yours as ever,

 

[father’s name redacted]

 

121.                      The father’s plans for the wedding on any view left a tight timetable, with his older daughter V collecting A from school at 2pm to get to his house and change in time to leave with the wedding party and arrive for the wedding at 3pm.  Nonetheless he blamed everyone else for being late, suggesting the mother had colluded with the school and the guardian to try and wreck the wedding, that she had somehow managed to convey to A that he should come and visit her on the way causing delay.   In fact A wanted his phone, when he got there his mother showed him it was in the front pocket of his schoolbag all along.  V’s boyfriend then left his phone on the roof of the car and they had to go back to retrieve it.

 

122.                      The father’s suggestion that the mother, A’s teachers and the guardian had in some way colluded in order to try and wreck the wedding was self-centred and not based on any objective reading of the emails that passed between the school, the parents and the guardian that day.  I find that A was distressed at school, for the reasons he had set out clearly in his email to his father.  Receiving no support or reassurance, he turned to his teachers for support, out of concern they rang his mother, who I find did what she could to support A attending the wedding.

 

123.                      The father said that A had a lovely time in the end, which his mother accepted, although she said that this was because he had enjoyed spending time with his older sisters.  It is incomprehensible to me that his father could not entertain the idea that any part of this day may have been difficult for his son.  I am concerned by his lack of insight and lack of compassion.  He anticipates that if only A spends time with his new wife they will become firm friends.  He has no insight into what it may have been like for A to go to the house and find three new people living there, without any preparation.  On any view, it is going to take a bit of getting used to.   

Welfare analysis

 

124.                       I have had regard to all the evidence and I have considered all the factors in the welfare checklist.

 

125.                      I reject the father’s central allegation that A has been alienated from him by the actions of his mother, whether deliberate or unconsciously.  She has not raised false allegations against him, nor has she influenced A to make allegations.  He has regarded her as undermining his parental responsibility, but I do not find that she has done so.  She has not acted unilaterally but broached subjects with the father, explaining the situation, setting out reasons for her view and invited discussion.  She has tried to explain to the father why A is saying what he is saying and has come up with suggestions to support and encourage him to spend time with his father.  She has been met only with rebuffs, criticisms and accusations.  

 

126.                      Mr Woodall described in general terms the psychological process of splitting and alienation, and suggests that A is at the beginning of the splitting process.  I would not necessarily disagree with that, although I do not consider A has ‘rejected’ his father in the complete way suggested by Mr Woodall or his father.  I am not persuaded that A has become ‘hyper-aligned’ to his mother, nor that this is the reason for him expressing views which are negative of the time he spends with his father.  I would accept that as Mr Woodall says, and the guardian acknowledges, some of A’s behaviours are consistent with the behaviours of children who have become alienated from a parent.  However, in all the circumstances I do not find that has happened in this case:  

 

-          There are a great number of reasons that are not spurious to explain why A currently feels reluctant to stay with his father, why he feels that his father does not listen to him and puts unwanted pressure on him;

 

-          There is a lot of evidence of A enjoying the time he spends with his father when they are sharing an activity together - watching cricket or rugby, walking a dog, doing homework - and of A consistently expressing a wish for the relationship to be repaired or improved.  There is no evidence of outright rejection;

 

-          There is no evidence of the mother acting consciously or unconsciously in a way to undermine his father - although everything she does is interpreted that way by him;

 

-          Mr Woodall’s conclusion is based on a process of elimination, but he had not seen A or his mother together, nor explored with A in any detail the reasons he gave for not wanting to stay overnight with his father.

 

127.                      A met with the guardian twice in February 2021.  She found him to be an ‘interesting, intelligent, highly articulate and polite young person’ who engaged well, and gave responses to her which she judged to be ‘natural, thoughtful and unrehearsed.’  What A said to her is consistent with the impressions given by the safeguarding teacher, the teacher at primary school and Ms S, as well as his mother.  It is only his father now who describes him as a changed personality. 

 

128.                      A’s wishes and feelings are clear, consistent, come through lots of different mediums but principally through guardian. He has not rejected his father.  They share interests, they are similar in some ways, but he has not felt listened to, and desperately needs acknowledgment that he is his own person, not speaking his mother’s voice but expressing his own views.

 

129.                      Through the guardian he has written me a letter which I find to be clear, well-reasoned, and consistent with what he has been saying for some time now, not just to the guardian but to his teachers and Ms S:

 

Dear Judge,

 

Thank you for listening to what I want to say.

 

I understand that you listen and think about lots of different perspectives about what is best for children. You will be making the final decision about the time I spend with my father and the amount of time I spend between my parents’ homes.

 

At the moment I am feeling unhappy because I have to go to my father’s house and I really do not enjoy staying there. I feel like when I am there he doesn’t really care that I am there at all and pays me little attention.  He spends lots of time on his computer and we don’t talk a lot. When he does speak to me, it is all about putting pressure on me to stay longer or stay the night.

 

When we do talk we disagree a lot and he does not listen to my views. He says things like ‘that’s your mother talking’ or ‘you’re just like your mother’. He uses negative connotations all the time to do with my mother and that makes me feel cross.

 

I really just want him to listen because we always disagree over the smallest things that shouldn’t really matter. My father always has to be right about everything and that causes tension.

 

Going forward I don’t want to stay the night at all, and want to keep going just for the rugby matches. Maybe if V was visiting his house, we could all spend time together.

 

Maybe in the future if my father starts listening to me more and stops putting so much pressure on me, I might change my mind and decide to stay longer and maybe overnight. However, I want to be able to make my own choice about this when I am ready.

 

Yours sincerely,

 

A

 

130.                      I accept that this letter encapsulates A’s genuine wishes and feelings and that it is based on his own experiences, and is not influenced by his mother or anyone else.

 

131.                      A has a long-standing and ongoing medical condition arising from a cortisol deficiency.  This is well managed by specialist clinicians and while there are currently some concerns about delayed onset of puberty, potential treatment plans are in place for that and there are no current concerns.   

 

132.                      After the drama surrounding his first secondary school placement he has moved to [current secondary] school where he is doing well and both parents support him remaining there. He is doing well in his studies. 

 

133.                      A is at continued risk of emotional harm from being exposed to the continued dispute between his parents.  Further, I find that he has suffered, and continues to be at risk from suffering emotional harm as a consequence of the way his father identifies him as aligned to his mother, does not allow him room to express his own thoughts and feelings to him, regards all challenges to him as stemming from the influence of his mother, and is unable to talk to A in a way that shows him he listens to him and understands his feelings.  A needs to feel listened to and for there to be some acknowledgment that his views are informed by his own thoughts and experiences, not fed to him by his mother.  In addressing A’s feelings, the father does not have to acquiesce to every one of A’s wishes, but by continuing to dismiss them out of hand as he continually has done, I find that he has caused A emotional harm. 

 

134.                      The father proposes that the mother must be made to make A go and spend time with his father, or else he should go and live with him in order to effect change.  I was not persuaded by Mr Woodall’s evidence that this would be successful in this case.  I am not persuaded having heard from the father, that this would bring about any change in his or A’s relationship, because the father does not accept that there is any way at all in which he needs to change the way he parents or interacts with A at all.  The option of a suspended order for transfer of residence would I find be counter to A’s welfare.  His father has in the past been too keen to tell him about Court orders, and I consider A is likely to feel this as a significant pressure over him which would not be conducive to his welfare.  Such an order is likely to create a risk of further litigation and of escalating the parties’ dispute because there is likely to be disagreement about whether the circumstances have been reached that would justify the order being triggered.  This would be counter to A’s welfare. 

 

135.                      Both the mother and the guardian consider that A needs a break from litigation, a break from the pressure he feels from his father to comply with the existing orders and for any orders made to provide that A will not stay the night with his father.  A’s father regards the decision of the Court in 2017 not to order a fifty-fifty split of A’s care between him and his mother as a failure and the start of a move of A away from him and towards his mother.  He says that a further reduction in the time that A is directed to spend in his care will only push that process further.  I do not accept the premise, as I have not made any findings that A’s mother has acted intentionally or subconsciously to alienate A from his father.  I accept that there is a risk that the relationship may deteriorate further, but I identify the source of that risk as the father.  The risk will not be reduced if A just spends more time with his father.  The risk will only be reduced if there is a change in the dynamic between A and his father.

 

136.                      A’s father is English and his mother born [in country name redacted], although both his parents are British nationals.  In my previous judgment I expressed some concern about the father’s lack of support for A’s [redacted] identity, referring to him as ‘only’ English.  These concerns have persisted in this trial, as the father has accused the mother of ‘racialising’ A and suggested that very negative traits he sees in the mother are a result of her [redacted] tribal heritage.  A’s discomfort about this was something he talked to Ms S about:

 

‘A said he does not like talking to his father, as he does not like his father’s political opinions.  A said his father talks about subjects such as colonization and apartheid.  A said his father gives reasons why apartheid and colonization was not bad.  A said his father however does not say if he agrees or disagrees with colonization and apartheid.  His father also talks about the reasons why Indian people are paid less.  A said his father is a little bit racist and makes comments which upset him.  A said there was a girl that he used to compete against at school, and his father said this girl was ‘a big fat African girl.’  A said this was not the case as the girl was from Hungary.  A said his father is not being sensitive to him, as his own mother is African.’

 

137.                      A needs his parents to support him in feeling comfortable in his own skin, and accepting of his dual heritage and identity.

 

138.                      I accept the guardian’s view that A is at continuing risk of harm from the ongoing dispute between his parents, which he is increasingly enmeshed in, particularly now as his father attributes negativity towards him as stemming from his mother and is not able to reflect on whether it might be a response to the way he is parenting him.

 

139.                      The father dismissed as ludicrous the idea that he might need to reflect on his parenting, having previously raised three children to adulthood. 

 

140.                      The question is not of whether he can be a good enough parent to other children but whether he is able to meet A’s particular needs.  He can certainly meet his physical and educational needs, but emotionally he has in my judgement failed in significant respects to acknowledge the difficulties in their relationship, that he has responsibility to address them as A’s father and to take steps to repair their relationship.

 

141.                      His mother can in my judgement meet all A’s physical, educational and emotional needs.  I have criticised her to a certain extent for escalating some concerns and for giving A alternative choices at times, which have meant A was likely to turn away from his father and towards her.  However, in general I find that she has done her best in difficult circumstances.  I would agree with the guardian that the arrangements for A to see his father should be regular and consistent and that there should not be discussion about whether A does or doesn’t want to go, his mother should support him to go.

 

142.                      I agree that the current order is not working and needs variation.  I agree with the guardian’s recommendation that it should provide for A to live with his mother and to spend time with his father twice a week for three hours each time.  This would give him the opportunity to spend quality time with his father, to share in activities they enjoy and for the father to support A with his education, but take away from A the constant pressure he has been under from his father to spend longer, come more often and stay overnight.

 

143.                      It is my hope that in time A’s relationship with his father will improve, although that will in my judgement require more than for them to simply spend time together.  The father will need to find a way to listen to A and to show to him he is listening to him and that he understands him, even if he does not always agree with him.  I hope that once the relationship improves, then A will return to staying overnight with his father, and going on holidays once again.

Enforcement orders

 

144.                      The burden of proof falls upon C to establish that there has been a breach in every case.  If established, then it is for B to establish that she had no reasonable excuse for the breach.  The Court must then decide whether an enforcement order should be made in all the circumstances.

 

145.                      It is not proportionate to deal with each of the 74 allegations separately.  During the evidence C did not take me to any of the other incidents save from those dealt with above.  Having reviewed them for the purposes of this judgment, I form a global conclusion.  On the face of it, it could be said that contact has not taken place in line with the order in place, although with many of the allegations it is not entirely clear whether there was acceptance at the time that the arrangements should be varied, even if the father may have been unhappy about it.  As a general conclusion, I have not been satisfied that it can be said in respect of each of the allegations beyond a reasonable doubt that there was a breach, and that there was no reasonable excuse for the breach, and that in all the circumstances it would be appropriate for enforcement orders to be made against the mother.  I find that she has done her best in difficult circumstances to comply with the orders. 

 

146.                      I dismiss all the applications for enforcement orders.  In respect of the claims for financial losses related to the holidays it has not been established to my satisfaction that the fault lay solely at the mother’s door in the ways alleged. 

Section 91(14)

 

147.                      There is no question that A needs a break from litigation, and the parents an opportunity to re-set the way they interact.  At the same time, A is now thirteen and so there is not too long before he will not be subject to child arrangements orders, so it is important not to deprive his parents of the opportunity to make applications in his welfare interests if need be, for too long.

 

148.                      The s91(14) does not prevent applications for enforcement being made nor does it prevent an application being made at all, it just imposes a filter so that the Court’s permission has to be sought before it can be issued.

 

149.                      There is a risk of harm to A if the parents continue their dispute but I am not sure it could be said that risk is worse if that dispute reaches the Court arena again, or at least, I am not sure it could be said that the risk amounts to a serious risk that without the imposition of the restriction, the child or primary carers will be subject to unacceptable strain. 

 

150.                      There is a history of repeated applications and that this has caused harm to A, but these have been made by both parents.  The fact of the long-standing animosity between the two adults in this case does not bring this under the umbrella of exceptional cases.

 

151.                      In the circumstances, I decline to impose a section 91(14) order, but I would expect that any future applications would be allocated to me.

 

 

 

HHJ Joanna Vincent

Family Court, Oxford

 

 

Draft judgment sent to parties: 20 July 2021

Hearing to hand judgment down: 28 July 2021

(adjourned to give C further opportunity to raise points of clarification)

Judgment handed down: 6 September 2021