The case of Re A (Children) (Parental Alienation) 2019 EWFC demonstrates clearly the shortcomings of the Family Court to ensure that all children, wherever possible, enjoy a relationship with both of his or her parents. The position of the courts with regard to ordering no direct contact with the absent parent, is that it is a very serious step to take, and should only be taken where it is plainly not in the welfare best interests of the child.
The facts of Re A are these: The father made a private law application in 2011 to have contact with his two children. That set of proceedings ended in 2014, with an order for the father to have indirect contact with them. Proceedings resumed in 2016, and ended when the father withdrew his application in 2019. This was after an order for the children to live with the father was tried and failed miserably. The Local Authority then initiated care proceedings after the failed attempt of transfer of residence.
In dealing with the father’s application to withdraw his application, the court reflected on the extensive history of the proceedings. There had been at least thirty five previous hearings and the first full hearing with extensive evidence happened in 2017, six years after the first private law application.
With hindsight, the judge considered that there were ten factors which contributed significantly to the difficulties that arose. The relevant ones, in relation to parental alienation were:
a) a failure to identify at an early stage that the key issue in the case was the alienation of the children from the father, by the mother;
b) early intervention is essential in a case such as this and this did not happen. It took about five years to identify the extent of the emotional and psychological issues of the mother. By that time it was too late for there to be effective psychotherapeutic or other intervention in relation to her, the children’s view having already been so entrenched;
c) there is an obvious difficulty about how to approach the expressed wishes and feelings of the children, who are living in an alienating environment such as they were. Children in these circumstances if asked whether they would like to have a relationship with the ‘absent’ parent, are likely to say no. Therefore, the approach in this type of case to ascertain the wishes and feelings of the children, has to be approached with considerable care and professionalism. To respond simply on the basis of what children say in this type of situation, is manifestly superficial and naive.
The lack of an effective early enquiry into what was happening within the family, meant that there was no effective intervention and that has caused the children’s expressed wishes being reinforced in their minds and resulted in the mother being able to say that the court should listen to what the children say, rather than addressing the underlying difficulties;
d) there was no hearing on evidence prior to 2017, to determine what was going on in the family and there should have been a definitive judgment by then, explaining the difficulties within the family, so that future work with family members, could be based upon that judgment;
e) the order for indirect contact, in a case where there is parental alienation has obvious limitations. Letters, cards and presents, were being sent by the father into a home where he was ‘demonised’ by the mother. In the circumstances , they served no purpose in maintaining any form of relationship between the father and the children;
f) there were at least ten different professionals involved, with each bringing a new personal and different insight into a case of this nature. The children became embarrassed speaking about personal issues with a stranger and became resentful of the intrusions into their lives. It is worth also mentioning that all of the professionals were of the view that the father was suited to have contact with the children and one was further of the view that they should live with him.
About two years before the conclusion of proceedings, the court having identified that the mother had alienated the children against the father, made an order for them to live with him. That order was for the children to live with him for a period of seven weeks, during which time they were not to have any contact with the mother. The children however became extremely distressed and resistant to them being placed with the father, their schools expressed concerns about the level of distress that the children were showing and the police became involved. Within a month of the order being made, the children returned to live with their mother and have not had direct contact with the father since. The Local Authority then initiated proceedings in an effort to get contact started under a supervision order with no success and the court gave permission for that application to be withdrawn. That showed the level of concern there was for the children, that public law orders were considered, having regard to the threshold for making such orders.
The judge in concluding his judgment addressed the father directly:
“I am truly sorry that this is the outcome and I do hope that you will find some happiness in the future, despite all that has occurred.”
This case shows starkly, that with the assistance of lawyers representing the alienated parent, how alive the courts have to be from the start of proceedings, to prevent the views of the children against the ‘absent’ parent becoming further entrenched. The court needs to identify the problem as soon as possible. Part 25 applications for the suitable expert may need to be considered right from the FHDRA hearing, running in tandem with any indirect contact that may be agreed at that hearing . A fact finding hearing or a hearing where extensive evidence is heard, should be set down as soon as possible to appraise the court as to the extent of the difficulties within the family and how best to address those difficulties. If these things are not done as soon as possible, the likely outcome is that any order that the court makes for contact will be futile because, the views of the children will have by then be set in stone.