FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Re S (Parental Alienation: Cult: Transfer of Primary Care) |
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Daphne Baker (instructed by Direct Access) for the Respondent
Hearing dates: 9, 10 and 15 July 2020
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Crown Copyright ©
Williams J:
101….She now approaches the arrangements for the child on the basis that she knows best and that the father is someone from whom the child is to be protected. She views Universal Medicine as a vital and benign entity. She has not begun to understand the substance of the judge's findings and the concerns expressed by others. That is how cults work.102. What then is the practical solution? The current situation cannot be allowed to continue. If the mother continues to ally herself with Universal Medicine there are only two possibilities. Either, on the mother's case, the child's time with her father would have to be reduced in an attempt to reduce her anxieties. Or, on her father's case, her time with her mother must be reduced in an attempt to remove her from the source of anxiety and build up her resilience. One approach addresses the symptoms, the other the cause.
103. It will be apparent from our analysis so far that we find that the child must be distanced entirely from Universal Medicine. Shared care can therefore only continue if the mother makes an immediate and definitive break with the organisation. Otherwise the child should move to live with her father. A period with him would give her a sustained opportunity to experience a less anxious and prescriptive way of living. There is a strong argument for saying that the time for such a move has now arrived, that this court should make the necessary orders, and that nothing short of the shock of actually losing the child's care is likely to impel the mother into doing what is necessary. The alternative
is to remit for a further hearing, giving her a final opportunity to dissociate herself in a determined way from Universal Medicine and seek the help she needs to do so. That brings more delay against a deteriorating background, and in the meantime, if the mother does not change her self-defeating stance, matters may get worse.
104. We find the arguments finely balanced. In the end, and not without hesitation, we have concluded that the risks involved in postponing a final decision are just worth taking. The current circumstances, adding to the difficulty of an immediate transfer of care, have also been significantly in our minds. With the agreement of the President of the Family Division, we shall remit the father's application for early final determination by him. By determining the matter in this way, we are giving the mother a very short respite during which she will have one last chance to take her own steps to leave Universal Medicine, start intensive therapy, and reverse the process of alienation of the child from her father. In doing this, we are taking a different course to that taken by the judge, as we now explain. Normally, when remitting a case we would emphasise that this court holds no preconceptions about the outcome. Not so here. In the first place, while the welfare decision will ultimately be for the judge, we remit on the limited basis that the factual foundations for future decisions are contained in the judgment of HHJ Meston
QC and of this court, and that the only further evidence that will be needed is in relation to subsequent events. Similarly, the evaluations of the harm being caused to the child by Universal Medicine and by alienation from her father are left undisturbed by this appeal. Above all, and so that the parties are left in no doubt, we warn that we foresee that without a wholesale transformation in the mother's position the court at the further hearing is likely to find it necessary to transfer the child's care to her father. The main thing that deters us from making that order now is the possibility, and it is no more than that, that the mother will finally and with a full heart see that she needs to take immediate and unmistakeable steps if she is to continue to play a central part in the child's upbringing. If that can happen, the child can return to a balanced arrangement that gives her the best of both parents, something that she is not getting and will not get as matters stand. If it cannot happen, her loss will be very great, but she will gain from growing up in the care of a good parent while attending the same school, and her childhood will not continue to be overshadowed by the baleful influences that have led to the present situation. [My emphasis added]
The Findings of HHJ Meston QC
Both parents love the child. Each is capable in practical terms. The order made in 2017 and its implementation showed that the parents were each willing and able to promote the child's continuing relationship with the other parent. The father has shown himself to be reliable and consistent in meeting the full range of the child's needs. The mother too has, of course, much to offer the child, but inevitably the focus has been on the ability of the mother to recognise and accept the concerns about the effect of the beliefs and practices of Universal Medicine on her daughter. Ms Ware put it starkly: "[Her] commitment to and involvement with Universal Medicine interferes with her ability to meet the child's needs in all aspects of her care…."."
I have summarised above the views of Ms Ware which I accept. In her view and in my judgment the child's exposure to Universal Medicine is harmful, causing the child to see her father's way of life as different to that of her mother and herself. If her mother remains involved with Universal Medicine or their practices, the child is at risk of further harm. However, there is also a risk of considerable harm as a result of a transition from the existing arrangements for the care of the child to the full-time care of the father with restrictions on contact between the child and the mother. However carefully such a transition might be managed and explained, it is difficult to measure how the child might react.
Having reviewed the evidence I confirm that I accept, as submitted on behalf of the father, that
i) Universal Medicine is a cult with some potentially harmful and sinister elements. I find the available evidence presented by the father relating to the harmful and potentially harmful influence and effect of Universal Medicine to be compelling. The mother's attempts to explain and justify some of the teaching and practices of Universal Medicine were unpersuasive. The independent social worker in these proceedings clearly and, in my judgment, correctly considered that aspects of the teaching and practices of Universal Medicine were unsafe, particularly for such a vulnerable and impressionable child.ii) The mother has been an uncritical adherent to the beliefs and practices of Universal Medicine and has expressed unqualified admiration for Serge Benhayon.
iii) The mother has inevitably exposed the child to the beliefs and practices of Universal Medicine, and naturally the child has been influenced by her mother's thinking. This does not appear to be disputed on behalf of the mother.
iv) Continued exposure of the child to the beliefs and practices of Universal Medicine gives rise to the risks identified by the independent social worker.
v) The increased anxiety shown by the child, about which both parents gave evidence, is not just the result of her awareness of these proceedings and of the continuing disputes, but it is the result of the child coming to feel that her father is different to her mother and herself, of her worry that the father will have a heart attack or die as a result of his not being "love" and of eating things that she does not eat, and also of her feeling that deviation from the beliefs and practices of Universal Medicine would be disloyal to her mother [and] also would make her ill or lost.
vi) Either because she has been told, or has recognised, that she must not tell the father about what she and the mother think the child feels compelled to hide her beliefs and to speak to the mother in a secretive way.
Specifically, I have no hesitation in making the findings sought by the father in respect of paragraphs 1 and 2 of the Scott Schedule, and accept without qualification the detailed evidential points made in respect of those allegations in the written closing submissions on behalf of the father. The third allegation by the father, that the mother has been attempting to alienate the child from the father, is less easy. In reality, even though the mother does not see herself as alienating the child from the father, that has started to occur. It is the result of what the child, whose predominant loyalty is to the mother, has come to think about the father as someone who does not follow the "Way of the Livingness"
The child is preoccupied with food and illness which mirrors her mother's views on the teachings of UM. This is as a result of mother exposing the child to her beliefs and applying pressure to her to comply with the teachings of UM.
Item two alleges:
The child's behaviour is consistent with the teachings and beliefs of UM. The mother follows these teachings and beliefs and's comments on the blog setting out her beliefs
The Court of Appeal Decision
'the way in which her case has been presented has only served to amplify the father's legitimate concerns and corroborate the judge's primary findings'
'In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt a at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgment, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.'
i) The wide-ranging psychological and physical effects on any young child of Universal Medicine ideas;ii) The particular emotional harm to this child arising from the parental rift over Universal Medicine;
iii) The emotional harm to the child of becoming alienated from her father;
iv) The harm arising from a change in the child's living arrangements.
'In the first place, the judge's findings at paragraphs 111 and 112 identified an immediate risk to the child's welfare in all its aspects, arising from the mother's adherence to Universal Medicine. The judge rightly considered that this state of affairs could not be allowed to continue. However, such slight measures as he then took to mitigate the harm were in our view highly unlikely to be effective. His assessment at paragraph 115 of the mother as sincere and genuine could not be sufficient without some solid reason for believing that, as he put it, she was likely to modify, if not wholly change, her thinking about Universal Medicine and Serge Benhayon. It is difficult to know what led the judge to believe that this was at all likely. The mother had been a convinced adherent for almost all of the child's life and the father had been raising formal concerns since the child was aged three. The clear evidence of Ms Ware, which the judge accepted, was that, given the mother's heavy involvement over 8 years and her continued support for its teachings and leader, it was unlikely that she could extricate herself without significant therapeutic support and a true commitment to do so. Neither of these conditions was met when the judgment was written and there was in our view no reasonable basis on which the judge could have expected them to be met in the foreseeable future.91. Moreover, the judge found that the decision of the Australian court was one that no reasonable parent in the mother's position could disregard, but that is exactly what the mother had done throughout the year of the proceedings, to the extent that it was not apparent that she had actually read the Australian decision, still less had she taken any interest in the material that led to it. In addition, events following the judge's own judgment were bound to dissolve any hope that the court might have entertained that she was now going to approach matters differently.'
'[94] The second way in which we consider the judge to have been in error concerns his response to his findings of alienation. Having found that a process of alienation had started to occur, he did not in our judgment take effective steps to counter it. By the time of the order of 15 January, the relationship between the child and her father was in considerable difficulties. The court's response was to re-instruct Ms Ware to advise the parents. However, even if advice from any quarter was likely to be effective, the mother showed no sign of being amenable to receiving it from Ms Ware. The orders made following the dismissal of the father's application were not made in any recognisable proceedings and disclose no identifiable strategy for addressing the damage that was being caused to the child's relationship with her father. There was no incentive for the mother to change her approach of laying all problems at the father's door, with time passing all the while.[96]…. He correctly reminded himself that he was concerned with the child's medium to long term welfare, but we do not consider that he brought that objective sufficiently into account when reaching his conclusion. There is a contrast between on the one hand the long-term nature of the harm arising from Universal Medicine and from parental alienation, and on the other hand the short or short-to-medium term harm that would be caused to the child by a change in her living arrangements. The order sought by the father was indeed a significant change in the child's circumstances and implementing it against her wishes would undoubtedly be very steep challenge in the short term. But the court's powers are ample to achieve and enforce such an order if that is necessary in the child's interests.'
'[97]….We infer that he found that the harm arising from a move to the father's care would outweigh all other forms of harm. In our view, that minimised the continuing and untreated harm to the child from Universal Medicine and from the developing parental alienation while at the same time it gave inordinate weight to the disadvantages of change designed to address the deep-seated problems within the family.'
The Parties Positions
i) The court is in no position to make an order to change the child's residence and primary carer because there is a deficit in the information that the court has about the child and what it does have lacks credibility.a) The court does not have the views of the child because Ms Ware declined to see her. It is central to the evaluation of paramount welfare that the court has available to it the views of the child.b) The change in recommendation of Ms Ware was without any basis and no credible welfare professional could make such a recommendation without seeing the child.c) The evidence of Mr Sydney is preferable to that of Ms Ware because he is better qualified and he concludes that she should remain living in the current arrangement.d) The proper application of the welfare checklist demonstrates that the harm in transferring primary care at this stage outweighs any benefits. The deployment of therapy and mediation and work with the father and daughter to improve their relationship is a more appropriate solution. The Draconian solution of a transfer of primary care is only warranted in the most serious of circumstances.ii) The evidence shows that the father has no intention of behaving in the way that was envisaged by the Court of Appeal.
a) if the father intends to move to Dorset this will remove the child from her school which was not contemplated by the Court of Appeal he specifically referred to her continuing at the same school.iii) Removing the child would put her in the immediate and serious physical danger and caused her irreparable emotional damage.
a) There is a risk that the child will run away whether in London or in Dorset and the risk of her running away from the father and trying to travel to London is a very significant one.iv) The hearing was unfair and a violation of article 6 of the ECHR including cross examination of the mother that was unnecessary and amounted to bullying.
a) The imbalance between the mother representing herself and the father being represented by leading and junior counsel as well as a solicitor was unfair.b) The cross examination of the mother about her involvement in Universal Medicine and about things she had said and done whilst involved in Universal Medicine was unnecessary and served no purpose save to bully and diminish the mother.
The Evidence
The Father
The Mother
Helena Ware
Louis Sydney
'given the ongoing nature of the court proceedings, Helena expressed her understandable concern that, hitherto, [the mother] had not tangibly dissociated herself from UM, nor had she been able to acknowledge the worrying nature of some of its alleged practices. Of greater concern, was that the mother may be demonstrating a 'masked compliance' whereby she could state that she had distanced herself from UM but in reality, could not in practice.'
'After the first two meetings I felt that there was a blind spot regarding the wider impact and response to her involvement with UM, an organisation widely reported for exploitation, malpractice and potential abuse. [The mother] could comfortably acknowledge what she understood about the organisation yet would equally state that she had not experienced this herself…… However, the subsequent meetings provided the necessary levels of reflection and feedback to leave me satisfied that [the mother] is both currently disconnected and intends to remain dissociated from UM in the future….. In our last meeting, [the mother] reiterated her desire to remove herself from all connections with UM and ensure that she and her daughter would remain safe and able to enjoy a life without worries about court proceedings. I am confident that [the mother] is now able to demonstrate that she can reflect and act on the wider concerns of UM for herself and for [the child].'
i) Her experience of feeling depressed, guilty, alienated or angry since exiting UM;ii) her current experience of forging a life with healthier networks and friendships out of UM;
iii) her ability to make informed decisions regarding her departure from UM.
'[I am] satisfied that [the mother] is both currently disconnected and dis-identified with UM and intends to remain dissociated from UM in the future.'
He said that the mother had demonstrated the necessary levels of critical thinking in relation to UM and can coherently state and recognise the worrying practices of UM and is able to scrutinise them and her prior involvement with UM. In his oral evidence he said that he was fully satisfied that the mother had dissociated from Universal Medicine. He also said that he would be concerned if the child were to be living solely with the father, as he would be if she were to be living solely with the mother. He said that he did not think that there should be a transfer of care because there would be a huge break and rupture to her relationship with the mother might jeopardise her relationship with the father. He identified the principal problems as being the court case and the conflict between the parents. He did not identify the harm to the child which had already occurred and which remained a risk if the mother had not dissociated from Universal Medicine, and its practices or beliefs as being a relevant consideration at this time. He said he had no doubts about the mother's withdrawal from and dis-identification from Universal Medicine. He said that important signs of the mother's true rejection of UM could be found if she were able to describe its flaws, to acknowledge it is abusive and that Serge Benhayon was a sexual predator. He said in her sessions with him she had been able to do that. This is of course in complete contrast to her evidence to me. He thought that her openness to interventions was a positive sign but did not seem to qualify this with any evaluation of the pressure to demonstrate disassociation that the mother was under arising out of the Court of Appeal's decision. About the particular findings of HHJ Meston QC and the Court of Appeal Mr Sydney was not able to identify any significant part of them that he had discussed with the mother, still less challenged her upon. In fact, he said that he did not think the child had been alienated from the father, which suggested he had not taken on board the effect of the two judgments. He was inclined to describe the problem in the case as being one of conflict between the parents rather than the mother's adherence to UM beliefs and practices.
Conclusion
POST SCRIPT
i) The hearing was in breach of the mother's right to a fair hearing. As set out in this judgment I considered this issue and kept it under review. This was a case management decision and I do not consider that this ground has a realistic prospect of success.ii) The child's wishes and feelings were not obtained. As set out in this judgment I considered it inappropriate to seek further evidence of the child's wishes and feelings given the alienation issue and the distress she was experiencing due to the conflict. I do not consider that this ground has a realistic prospect of success.
iii) Leaving future contact solely to the discretion of the father and Ms Ware is draconian and damaging. The level of restriction is not justified. At present there is no means of defining the time or contact that the child should spend with the mother given the uncertainties over both the mothers progress in disentangling herself and the child's progress in settling in the father's care. The father, if anything, tends to be too optimistic in his evaluation of what relationship the child and mother should have and the involvement of Ms Ware is intended to ensure that decisions are focused on the child's needs. I did not consider that the proceedings should be listed for further review as the child needs an end to litigation and to know that she is to live with her father and in any event there was no time scale to point to an appropriate date for review given the uncertainties in both the mothers potential progress or the child's settlement. I have reserved any future applications to myself and have not placed any bar on the parties' ability to make further applications which will of course be evaluated on the basis of progress made or other changes which have occurred. I do not consider that this ground has a realistic prospect of success.
iv) The Court should grant a certificate pursuant to s.12 Administration of Justice Act 1969 as the issue of whether a court should ever force a litigant to represent themselves where their representative falls ill is of significant public importance. I do not consider that the Grounds raise an important point of principle in relation to fair hearing rights; it is a fact specific decision taking account of the competing rights of the parties and the child. I therefore do not consider that any of the grounds for certifying under s.12 Administration of Justice Act 1969 are established.