Identifying The Problem
Court proceedings involving the phenomenon of the ‘excluded parent’ can take many forms. Such cases are variously described as parental alienation/ hostility, intractable contact, chronic litigation disputes etc.
There is no definition of these terms but as practitioners we encounter them quite regularly and we recognise them when we see them.
Getting A Grip On The Case: Early Fact Finding
In most instances, harm is likely to be done if the allegations are not addressed at an early stage: There is likely to be ongoing emotional harm to the children; irreparable damage to the relationship between the children and the non-resident parent; and risk of professionals believing the allegations and having done so, subsequently finding it difficult to ‘row back’ if the accused parent is exonerated.
Unfortunately, the courts are under pressure to limit the number of hearings per case and they are having to cope with overburdened lists. Consequently, the family courts often favour combined fact-finding and welfare hearings.
Each case needs to be considered on its own merits but serious consideration should be given to seeking an early fact finding hearing. Pressure to defer addressing the allegations until the final hearing should be resisted.
Though often honoured in the breach when it comes to listing, the delay principle is enshrined in s1(2) of CA89. Moreover, S11(1)(a) requires the court to draw up a timetable with a view to determining without delay proceedings in which any question of making a s8 order, or any other question with respect to such an order arises.
There is an increasing realisation on the part of the family courts that parental alienation cases need to be tackled early and head on:
In Re E (A Child)  EWHC 3251 Hedley J said that “…. It is extremely important both for the courts and advisers, to try to spot at an early stage those cases that have the hallmarks of difficulty, let alone intractability about them”. Hedley J emphasised the importance of the parties at a relatively early stage having an opportunity to give evidence. Curiously, he favoured an early welfare hearing rather than an early fact finding hearing. This was in order to keep the focus on the interests of the children “which are all too easily lost in the maelstrom of allegations”.
More recently, in Re T (Children)  EWHC Fam 2164 Holman J heard a fact finding hearing and noted that the proceedings had been unjustifiably protracted until his predecessor in the case had taken a grip and fixed the matter for a fact-finding hearing.
In H (Children)  EWCA Civ 733 Parker J’s decision at first instance to hold early fact finding hearings which led to the interim removal of the children from the mother’s care, was upheld on appeal.
Early Fact-Finding: Some Practical Issues
Police disclosure: Where there is an ongoing police investigation, police disclosure will be important. In the early stages of an investigation, the police might be opposed to disclosure. In this instance, there is sometimes merit in seeking a direction for the officer in the case to attend court or to provide a written summary so as to ascertain the nature of the evidence against the accused parent and to obtain an indication as to when a decision is likely to be made as to whether or not there will be a prosecution.
Even where the relevant police authority is willing to provide disclosure, there can be significant delays due to lack of resources. This problem can be met by witness summonsing the officer in the case and requiring the officer to bring copies of the evidence to court.
In Re H (Children)  EWCA Civ 733 Parker J at first instance heard evidence from the parents and made preliminary findings of fact against the mother before police disclosure had taken place. There was an appeal on this and numerous other grounds but her decision was upheld.
Schedule of Allegations: The Schedule can be turned to the accused person’s advantage because if there is evidence that in pursuing or fabricating allegations, the accuser has caused the children physical or emotional harm, then this can be raised by way of counter-allegation.
Bail Conditions: Where the accused parent wants to pursue interim contact, police bail conditions are often raised against that parent as a bar to contact. Bail conditions are usually generic and rarely ‘child welfare friendly’.
Appropriately worded recitals in a court order can be effective in persuading the police/ CPS to agree to vary the bail conditions so as to permit for example, supervised contact. Also, interim child arrangements orders can be worded so that they take effect upon bail conditions being varied.
Exoneration: Then What?
Repairing The Damage To The Parent
The amount of collateral damage caused by false allegations can leave the wrongly accused parent marginalised by agencies such as the school, police, social services and sometimes CAFCASS. The accuser-parent may refuse to accept the findings of the court and might yet continue the false narrative.
In order to start the process of rehabilitating the wronged parent, consideration should be given to obtaining the approval of the court to disclose relevant parts of the court order or Judgment eg: to the school, employer.
Where the children’s perceptions have been coloured by the accuser-parent, consideration should be given to prohibited steps orders (eg: an order prohibiting the accuser-parent from causing or permitting the children to undergo counselling or other therapeutic work that is based on the premise that the children have been subjected to physical or emotional harm by the accused parent).
An order requiring the accuser to tell the children the truth in the presence of the Guardian or a social worker, may be appropriate in some of the ‘softer’ cases where it is felt that the parent is likely to be compliant.
Ongoing court proceedings
Exoneration may be just the start of a long battle. Several reported cases have emphasised the importance of judicial continuity and of effective timetabling (eg: Re D Intractable Contact Dispute: Publicity)  EWHC 727 (Fam) and RE H (Children)  EWCA Civ 733).
In Re L-W (Children)  EWCA Civ 1253 Munby LJ stated:
“proper judicial control and judicial case management requires what Wall J referred to in Re M at para  as ‘consistency of judicial approach’ within the context of a judicially set ‘strategy for the case’. This must form what he described at para  as ‘part of a wider plan for [the] children, which needs to be thought through” [para 95]
Overcoming the children’s stated “wishes and feelings”
Not all CAFCASS officers, guardians and social workers are alive to the issue of parental alienation. Many place undue weight on the expressed wishes of the children. With older children, this will often be regarded as the only determining factor.
In Re S (Children)  EWCA 447 the court stated that wishes and feelings are not determinative and that they are secondary to overall welfare.
In Re M (Children)  EWHC 1948 Peter Jackson J found that the Guardian’s approach was profoundly flawed. She had taken the children’s expressed views at face value and she did not consider the other welfare considerations contained in s1(3):
“[The children’s views are] ….a reflection of the children’s loyalty to one parent, who happens to be, in this case, their mother. I find that [the Guardian] takes no account of the losses and the effective estrangement of the children from their father arising from her proposals”.
In Re H (Children)  EWCA Civ 733 the Court of Appeal upheld the decision of Parker J to move the children at an interim stage to the care of the paternal family. At first instance, the social worker argued forcefully against the children’s removal from the mother’s care on the strength of the children’s expressed wishes. Parker J rejected the recommendations of the social worker and said:
“I have more than once stressed in this case, as in others, that the word used in the Children Act 1989 about wishes and feelings is “ascertainable” and not “expressed”. Ascertainable often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father.” [para 43]
Avoiding The ’Cop Out’
When faced with strong opposition to contact from the resident parent and from the children, the professionals are often at a loss as to what to recommend. They are often reduced to recommending indirect contact only or very limited visits.
In Re M  above, the Guardian advocated contact twice each year for 4 hours. This was rejected by the Judge, who ordered contact periods of 4 days during each half term holiday. When the proceedings were returned for enforcement, a different Guardian was appointed [para 33-7].
In Re M (Children) (Contact long term best interests)  EWCA Civ 1090 the court underlined the presumption of contact with the absent parent stressing that no stone should be left unturned.
Unfortunately, this approach was overlooked in Re K (Children) (Contact: Failure to Consider Alternative Means)  EWCA Civ 99 where the court at first instance refused to make a child arrangements order. The litigant in person father did not acknowledge his wrongdoing and he would not apologise to the mother or to the children. The CA held that the court should have given consideration to making an activity order under s11A.
RECENT INITIATIVES AND TRIED AND TESTED APPROACHES
Family therapy can be an important step in rebuilding the relationship between the children and the exonerated parent. Unfortunately, resources are scarce and may well be unaffordable.
See “Making contact happen in chronic litigation cases: a mentalising approach” April  Fam Law which gives a helpful overview of the therapeutic assessment programme that has been developed by the Anna Freud Centre. This article merits detailed reading. Under phase 1 the work involves the following stages:
Stage 1 Work with the parents:
Individual meetings with each parent to form a working relationship. The parents are invited to share their concerns but they are told that the focus of the work is on the present and the future;
Getting across to the parents the damage that can be done to the children if contact is not resumed. Getting the parents to agree that contact is in the children’s best interests. Trying to get the parents to ‘mentalise’ the children’s position. Making it the resident parent’s responsibility to remind the children of better times. Role play is used to help the parent prepare for speaking to the children more positively and for answering the children’s questions. The parents are helped to construct a coherent narrative for the children to explain the resident parent’s change of attitude;
Helping the non-resident parent prepare a video message for the children. The parent will put him/herself in the shoes of the children and imagine what the children would want to hear.
Stage 2 Individual work with the children:
There are usually 3 sessions with each individual child including sessions in both the home and in neutral settings. The aim is to obtain snapshots of the child’s state of mind rather than detailed questioning of matters that they might have already had to discuss with other professionals;
Information is gathered from the school to build a fuller picture;
A relationship map is drawn with the child which includes friends and trusted adults;
A picture is built up which will include information that can be used later to challenge false or negative perceptions of the absent parent or which might lead to ways of facilitating contact;
Where the children become upset possibly phobic at the prospect of having contact with the absent parent, the resident parent is made responsible for managing this. The parent is helped to manage their own emotions.
Stage 3 Parental couple counselling and family work:
Joint work with both parents in the same room together. This can take a long time to achieve. The parents are encouraged to mentalise within the family, and remain focused on the children. Continuing to create a coherent family narrative. Emphasis remains on the present, the future and the children’s experience;
An agenda is drawn up of tasks that the parents can carry out between sessions. For example in anticipation of contact, the parents can communicate by email to agree basic matters such as the time and place of handovers. The therapist is copied in on all emails.
Stage 4 First contact sessions:
Only when all of the therapeutic work has been done will contact be attempted. Where the children have become phobic towards the absent parent then as with other phobias ‘desensitisation in vivo’ takes place ie; gradual exposure. This will begin with the child seeing the absent parent from a distance, then closer and finally allowing interaction to take place;
This is all taken at the pace of the child and is carefully managed by the clinician. After each contact, the clinician will engage with the children in a de-briefing session.
This work may all take place against the background of court proceedings. Child arrangements orders are regarded as a positive tool.
Phase 2 may continue after court proceedings have concluded. It involves evaluation of the quality of contact and whether it is maintained. Regular family sessions and multi-family work may be involved.
Making Child Arrangements Happen
S11 CA 1989 Orders
The CAA 2006 amended the CA 1989 so as to increase the court’s powers to enforce contact arrangements. Activity directions (s11A to G CA89), monitoring orders (s11H) and enforcement orders (s11J to P) all have their place. SPIPs are much favoured by the courts and can be effective in softer cases.
Where enforcement orders are unlikely to succeed or where they have been tried without success, then consideration can be given to bringing committal proceedings. This is a controversial area and is usually viewed as a weapon of last resort. Committal applications do have their place.
The authorities are strongly divided on the appropriateness of using committal proceedings to force contact:
In Churchard v Churchard  FLR 635 Ormrod LJ expressed himself in trenchant terms:
“To accede to the father’s application for the committal order would not conceivably be in the best interests of the children. It would mean two things: first, if committed, that the mother would be taken away from them for a time and the father would be branded in their eyes as the man who put their mother in prison….. It is the most deadly blow that a parent can inflict on his children.”[p638]
In Re S (Minors: Access)  2FLR 166 Balcombe LJ said:
“…. It is a rare case- although I would not go so far as to say that it can never happen- that the welfare of the child requires that the custodial parent be sent to prison for refusing to give the other parent access.” [p170]
In Re S (Contact: Promoting Relationship With Absent Parent)  EWCA Civ 18 Dame Elizabeth Butler-Sloss emphasised the fact that the sanction of imprisonment may well be self-defeating.
However, in A and N (Committal: Refusal of Contact)  1 FLR 533 Ward LJ said:
“The stark reality of this case is that this is a mother who has flagrantly set herself upon a course of collision with the court’s order …. In my judgment it is time that it is realised that against the wisdom of the observations of Ormrod LJ is to be balanced the consideration that orders of the court are made to be obeyed” [p541]
In Re S (Contact Dispute: Committal)  EWCA Civ 1790 Neuberger LJ said:
“It seems to me that this was an order which was justified both in terms of enforcing respect for the orders of the court and, therefore, for the rule of law in society, and also, as a last resort, to coerce the mother into complying with court orders.” [para 14]
In B v S  EWCA Civ 548 Wilson J said:
“The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders” [para 16]
In L-W  EWCA Civ 1253 Munby LJ agreed with the observations of Wall J in Re M (Intractable Contact Dispute: Interim Care Orders)  EWHC 1024 (Fam) that short sentences of 1,2 or 3 days may suffice to achieve the necessary deterrent or coercive effect without significantly impairing a mother’s ability to look after her children [para 95]. Munby LJ stated that although committal may be a remedy of last resort, this does not mean that it should be left too long. On the facts of the particular case, committal and compensation orders were overturned on appeal. This was partly on technical grounds due to the loose wording of the contact order but also, because by the time committal proceedings were launched the eldest child’s view had become so entrenched that even the resident patent’s committal to prison would be unlikely to persuade the child to take up contact with the absent parent.
Removal Of The Children From The Accuser-Parent
“I regard parental manipulation of children, of which I see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and give the impression that compliance with adult expectations is optional” per Parker J and cited with approval on appeal in RE H (Children)  EWCA Civ 733
Increasingly, the courts have begun to tackle the problem by falling back on the provisions of Ss8 and 11(3) CA89 to transfer residence at either an interim stage or at the final stage of the proceedings. Where there is still some hope of the hostile parent complying with a child arrangements order for contact, courts will sometimes make suspended/ conditional orders.
In some instances, where there is concern that the children may be suffering or at risk of suffering significant harm, the court will engage the local authority by initiating interim care proceedings. This may result in an interim care order and placement with foster carers or extended family.
Re C (Residence Order)  1FLR 211 There was no pre-existing relationship between the father and the child. However, because of the mother’s implacable hostility to contact, the court ordered immediate transfer of residence to the father.
Re A (Suspended Residence Order)  EWHC 1576 (Fam) In this case, there was a finding that the father had sexually abused his step daughter but that contrary to the mother’s belief, he had not sexually abused their two children. The court ordered an interim transfer of residence to the paternal grandparents.
Re D (Children)  EWCA Civ 1467 (suspended transfer of residence against an obdurate parent).
Re A (Residence Order)  1FLR 1083 change of residence was ordered in favour of the absent father. However, the order was overturned on appeal because there had been no clear order for contact against the mother.
TB v DB (Change of Residence)  EWHC 2275 (Fam) a change of residence was ordered as a last resort, where there was no prospect of prohibitory orders changing the attitude of the intractable parent.
Re V (A Child)  EWCA Civ 1649 there was a transfer of residence to the father, where the mother had deliberately led the 6 year old child to believe that the child had been sexually abused by her father.
Re Y (Private Law: Interim Change of Residence  EWHC 1068 (Fam) the mother held a delusional belief that the father had sexually abused the child. The court made an interim transfer of residence to the father.
Cf Re Q (Implacable Contact Dispute)  EWCA Civ 991 the mother was implacably hostile to contact. There were unsuccessful attempts to enforce contact. The decision at first instance not to make a further child arrangements order was upheld where the purpose of ending the proceedings was to allow therapy to take place.