Strand, London, WC2A 2LL
B e f o r e :
| THE FATHER
|- and -
O by CAFCASS Legal
Miss Claire Jakens (instructed by Messrs Williams Macdougall & Campbell) for the 1st Respondent
Miss Sarah O'Connor (instructed by CAFCASS Legal) for the 2nd Respondent
Hearing dates : 24 November 2003
Crown Copyright ©
This judgment is being handed down by Mr Justice Wall who gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr Justice Wall:
The intractable nature of some contact disputes and the strength of the feelings they engender
(1) Disputes between separated parents over contact to their children are amongst the most difficult and sensitive cases which judges and magistrates have to hear. Nobody should pretend that they are easy, or that there is any one size fits all solution.
(2) Profound emotions are often aroused in contact proceedings. The children concerned become the battle ground on which are fought out the wrongs which the parents perceive each did to the other during the period they lived together. In the instant case, the father accuses the mother of child abuse, perverting the course of justice, defamation of character and perjury. A measure of O's distress at what was happening was his statement to the independent social worker appointed in the county court: "It is like a war. You know they are fighting and they are fighting over me".
The critical role of both parents in the lives of their children post separation
(3) 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 section 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.
Terminating non-resident parents' contact with their children is a matter of last resort
(4) 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. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.
(5) The father asserts that this is a case in which the mother has deliberately alienated O from him. It is not. The principal reason that O is hostile to contact with his father is because of his father's behaviour, and not because his mother has influenced O against his father. Unfortunately, the father is quite unable to understand or accept this. The father's reliance in this case on the so called "parental alienation syndrome" is misplaced.
Blaming the system
(6) The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. I discuss these further in paragraphs 83 to 86 of the judgment. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.
Parental responsibility for the failure of contact
(7) Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.
Joint residence orders
(8) The suggestion, made by the father, that joint residence orders should be standard is not, in my judgment, an answer. There may well be more cases than we have up to now recognised in which joint residence orders are appropriate. The philosophy behind such orders (the exercise of ongoing parental responsibility by both parents post separation) is contained within the Children Act and is sound. But joint residence orders are not a panacea, and such an order would be quite inappropriate in this case.
Alternative methods of resolving contact disputes
(9) Fortunately, most separating parents are able to negotiate contact without the need to go to court. Contact disputes are best resolved outside the court system. Making Contact Work identified a number of ways in which this court be achieved.
(10) Contact in my experience works best when parents respect each other and are able to co-operate; where the children's loyalties are not torn, and where they can move between their parents without tension, unhappiness or fear of offending one parent or the other. Such cases rarely come to court.. The courts, therefore, have to deal with the cases in which there is no agreement. These are often, like the present case, the most intractable.
(11) This is, accordingly, once of those rare cases in which an order for direct contact would be both ineffective and counter-productive. I reach that conclusion with regret. I am, however, reassured by the opinion of the child psychiatrist Dr. B that in late adolescence or early adulthood O is likely to revisit his decision not to have contact with his father. I hope the father also takes heed of Dr. B's message that if he maintains his hostile attitude to O's mother, O is likely to remain alienated from him..
Publicity and the prohibition of any identification of the child
No person shall publish any material which is intended, or likely to identify
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.
He (O) then said, 'with dad, he rushes me off my feet. It's all rush, rush, rush. Dad says mum fills my head with rubbish, telling me all the wrong things. I feel I have a horrible life because of these two arguing. Dad says in the Easter holidays "You'll be with mum in the week", but mum says he is not telling the truth.'
O then talked about his memories of previous violence at home directed at (his mother). He described events in detail and showed great concern for his mum.
O said, 'I just want them to be friends. I love them both. At Easter I want to stay with my mum. Things should stay as they are, with me seeing dad every other weekend.' O was told it would be written down and sent to the court.
The dispute of fact really amounted to only one point. Was O objecting to the current level of contact because of his own genuine feelings, or was he only reflecting what his mother felt and, perhaps, had told him to say?
Here, it is common ground that O should have contact with his father. It is common ground that O loves his father and it is quite plain that when there is contact it is usually, if not always, successful. When Mr. H saw O in his father's presence part of the way through an extended period of staying contact, what he saw was, he said ,,,,,,"a very happy child".
It may be that this is in part due to the differing attitudes the parents have towards appropriate behaviour and discipline; it may be in part an over-assertive manner by the father when speaking to O, in criticising his mother, discussing adult topics concerning the divorce and contact, and in telling him what to do; it may be in part that as he grows up, O likes to have weekends to do what he wants and evenings similarly. It does not, it seems to me, matter very much why the current regime does not work so long as it is not because of any active interference by the mother, which I have found is not the case, thought I repeat that I think she could have done more to encourage contact. What is important is what is the way forward from here.
The father cannot understand how less contact can be the way forward. This, I think, is a classic example of what Mr, H described as rigidity in approach. If, as I find, O is sufficiently unhappy with the current degree of contact that he is more and more turning away from any contact, there is surely the very great risk that he will become alienated from his father to the extent that what the father fears, namely the worst case scenario of contact having to cease altogether may well come to pass. I am quite satisfied that the most important thing is to get contact working again; that this is best done by starting with modest levels of contact and then attempting to build them back up to a higher level.
I find that the mother is willing to see some fault on her own part; is willing to promote and encourage contact; but she is sensitive to and responsive to what O is saying.
Very sadly, I find that the father can see no wrong in his own conduct. He does not consider that he has in any way caused O's present resistance to contact. I find that, by pressure and his attitude to O and to O's mother, the father has caused O to have his present resistance to contact. I find that when the father says that mother's alienation of father with the child will in the end rebound and he (O) will reject his mother and that will be against his welfare, he is not saying that out of a genuine future concern for O or the mother, but rather as another insinuated threat against the mother.
The decision of the Court of Appeal
Essentially, I agree with everything the judge said in this case up to the point when he felt the child needed finality. He felt, taking the advice of the independent social worker, that the time had come when the court process should be brought to an end ..
I recognise the appalling dilemma in which this very experienced judge found himself in this case. Here was a boy who was setting out strongly what his views were. Here was a father not prepared to accept that the boy's views were valid or that the boy was really expressing the views that the independent social worker said he was and which the judge accepted. Again, the father has a real duty to look at what the independent social worker said the boy actually thinks. The judge had a duty to take into account the views of the boy .
So the judge was faced with this appalling dilemma and in that area, and that area alone, he went wrong. He should not have taken it out of the court system. He should have allowed for one more try of a different sort to see if it might be possible to get some movement. The father did ask for a child psychiatrist at an earlier stage and was turned down. I express no comment on that save to say that the time does appear to have come when someone with a particular expertise should come into it.
In his careful judgment, the trial judge set out his problems. He set out considerable criticism of the father. Those criticisms are based on the judge having seen the witnesses, heard them give evidence, having read the reports, having assessed the facts and made findings. The father would be well advised to read what the judge has said because the judge is a sensible man. He formed a view of the father which is not the father's own view of himself. It would not do the father any harm to wonder as all grown ups ought to wonder whether their own perception of themselves is necessarily the perception of others. That also applies to the mother. Is she being as helpful and as positive towards the re-introduction of contact between her son and her former husband as she could be? Is she doing it as a distasteful duty or is she recognising that this child would gain if he could renew a contact arrangement with his father in which he had pleasure in the past? Both parents need to re-examine themselves; everybody does, and they particularly need to do so in the context of this case.
Events after the judgment of the Court of Appeal
The case in the High Court
The father's application to be released from the undertaking given on 7 July 2000
Events after 3 July 2003
The state of the evidence as at 24 November 2003
O shows no mental health disorder, but is slightly overprotective of his mother and troubled by an incident when he was four when his mother was injured. He does not warrant therapy although this could be reviewed once the contact issue is resolved. I can see little hope that O would benefit from direct contact given his resistance. Moves to establish such contact has (sic) the potential to undermine the developmental progress he is making, There may be a role for indirect contact if sensitively arranged.
As O enters his adolescence he is becoming more forceful in the expression of his own opinions and views, and I believe has become more rigid in his resistance to the re-establishment of a relationship with his father. Despite what (his father) thinks, I have sought to encourage O to be more compassionate and to try and understand how important he is to his father. I, on many occasions, when the opportunity arises, suggest to O that he might like to respond to his father's letters or give his father a ring, or in some way move towards a better relationship. Unfortunately, O's stubbornness means that those attempts on my part are often rebuffed, and I do not pursue them any further because I do not wish to exacerbate the difficulties or push O into a corner.
My own view is that (O's father) is incapable of perceiving the situation from any other perspective than his own, and that his own vision is clouded by bitterness and hatred of me. He is pursuing what has become to him a political campaign based on his concept of his rights and entitlements rather than a recognition of the reality of his own son, O's needs and wishes.
Throughout these proceedings, (O's father) has consistently turned against anyone who does not properly and fully reflect his own wishes and opinions and he comes to dismiss any such views as being unjust, unfair, part of a conspiracy against him, or the like. He has lost the capacity to look at a situation objectively and to recognise that there may be some validity to views held by others. His determined and single minded pursuit of his own agenda is a reflection of that to which I believe O was exposed throughout the period when contact was taking place and provides an explanation as to why, despite there having been some good times, O's decision in the end was to cut off that contact and protect himself from the incessant pressure imposed upon him by his father. Until and unless (O's father) accepts and realises that, I do not believe that there is a prospect of a good relationship between father and son.
The basis for the father's application for permission to withdraw
To act in a way equal to the other persistent lawbreakers in this case, knowing that the law should treat ALL people with equality. If this by its very nature puts O at risk, then the court and CAFCASS Legal must accept the responsibility for creating that situation.
ALL of this would have been totally unnecessary if the courts of this country had treated me as equal in the eyes of the law, and equal in the eyes of my son. In fact, even today, if any of the actions expressed in the Making Contact Work document were put in place, and made clear to (O's mother) that she HAD to comply with court orders, or risk losing residence of O, I am sure that CONTACT WOULD WORK. Unless we try it, as we should have done many years ago, then the whole "Making Contact Work" effort is an expensive and useless exercise. Enough is Enough.
Analysis and Discussion
Blaming the system
10.37 The court procedures are too slow. There is insufficient court time and a lack of resources: cases take too long to come to court. There are substantial delays which are detrimental to children and their parents.
10.39 The litigation process is adversarial and counter-productive. It entrenches attitudes rather than encouraging them to modify. It tends to focus on the arguments of the parents, not the needs of the child. It puts particular pressure on the divided loyalties of children.
A last resort
We do not consider it to be a helpful concept and consider that the sort of problems that the title of this disorder is trying to address is better thought of as implacable hostility. The essential and important difference is that the Parental Alienation Syndrome assumes a cause (seen as misguided or malign on the part of the resident parent) which leads to a prescribed intervention whereas the concept (which no-one claims to be a "syndrome") is simply a statement aimed at the understanding of particular situations but for which a large range of explanations is possible and for which there is no single and prescribed solution, this depending on the nature and individuality of each case.