The freedom of belief and parental alienation in child arrangements orders: a slippery slope

Summary

The recent judgment in S (Parental Alienation: Cult), Re [2020] EWCA Civ 568 provides a useful summary of the law concerning freedom of belief and parental alienation in contested child arrangements orders.

The father (F) appealed the refusal of his application for a variation of a child arrangements order amidst continuing concern over the mother’s (M) adherence to the beliefs and practices of “Universal Medicine” (UM) and the impact of this on their daughter Lara’s (L) welfare.

Background Facts

The parents began a relationship in 2010. L was born in 2011 (with F listed on her birth certificate). F and M separated soon after and it was agreed that contact between F and L would take place on alternate weekends.

This informal arrangement soon broke down once M started to follow and practise the teachings of UM from 2012 onwards (whose controversial belief system encompassed amongst other things, clothing, diet, exercise, speech, treating children, and finances), exposing L to UM’s practices and taking her to UM events.

Things deteriorated to the point where both made referrals against each other to social services in 2015, (each being dismissed), and F eventually applied for a child arrangements order later that year seeking a shared care arrangement for L and a specific issue order to generally prevent M from exposing L to any further contact with UM.

An order was made by consent in June 2017 (coming into effect in April 2018), stipulating a shared care arrangement and a prohibitive steps order (PSO) prohibiting M from either continuing to impose UM’s teachings on L or taking her to any future UM events, as per CAFCASS recommendations made in April 2017.

However, as M became ever more devoted to UM and its teachings, she took L to a gathering organised by UM in the summer of 2018 and generally continued to influence and control L with UM’s espoused values in breach of the 2017 PSO (in particular, L’s diet was restricted to the point where a GP raised concerns over a future eating disorder).

Finally, in October 2018, an Australian defamation ruling against the “leader” of UM found the organisation to be a “socially harmful cult” and the leader himself to be a “sexually predatory charlatan…who had assaulted female students…and had an indecent interest in children as young as ten”.

The application at the heart of this appeal

F issued his current application in January 2019, seeking for the 2017 order to be varied so that L could live with him and spend time with M, this being contingent on M adhering to the 2017 PSO. It was his position that without this happening, L was at risk of further alienation and emotional and physical harm.

In the run up to the hearing, a safeguarding letter from CAFCASS concluded that: the court should hear evidence on whether there had been any major breaches of the 2017 PSO; and UM’s teachings were not appropriate for L at her age and could detrimentally affect her emotionally and physically in the long term.

In a further safeguarding letter in May, the court was advised that if the father’s allegations were made out then the arrangements should be changed, and if not, they should remain the same.

The social worker’s report in October stated that M had not understood the seriousness of the concerns about UM and that it would be difficult for M to extricate herself from UM without therapy and support, and considered M’s continued involvement as being harmful to L in terms of her diet, behaviour, and beliefs. The report also highlighted the risk of L becoming alienated from F by way of him not having the same beliefs as L or M.

The final hearing took place in November 2019. After hearing evidence from the social worker and numerous witnesses for both sides, reviewing recordings of UM sermons and promotional materials (including even a BBC programme on the organisation), and recordings of L talking to F, the Judge summarised the consideration of UM and L as follows:

“the only proper focus for the court is whether the mother’s adherence to Universal Medicine impacts on the care of Lara and whether it involves practices and attitudes which are or might be harmful to Lara, and, if so, whether and in what way any such harm can be mitigated”.

On the issue of alienation, the Judge said:

“it cannot be overlooked that an additional source of actual and potential harm to her is the continuing disagreement and conflict between the parents, in particular their disagreement on the important and difficult issues relating to Universal Medicine. The disagreement has created tension and suspicion between the parents, the mother alleging that the father is seeking to undermine her relationship with Lara and the father alleging that the mother is seeking to alienate Lara from him.”

Despite the Judge making the following findings: that UM is a cult with some potentially harmful and sinister elements that were unsafe for a child such as L; that M was a devoted follower to UM and their leader; that M had exposed L to UM and L had been influenced by UM; that continued exposure of L to UM would cause a further risk of harm to L; and that M has been alienating L from F, the Judge made the ruling that the 2017 order should remain in place, subject to undertakings from M.

Between the hearing and judgment there had already been difficulties with L spending time with F, as L refused to stay with him on numerous occasions and had often been difficult when at F’s residence.

Both parties presented their proposed undertakings for M later in January. Both were far apart from one another, with M making no proposal to seek therapy or to engage with the Australian decision, to otherwise distance herself from UM’s teachings or followers, or to give any assurances regarding L’s diet.

F’s appeal

In the absence of agreed undertakings and continued difficulties with L’s contact with F, F’s appeal (granted in February) essentially argued that the Judge had made strong and serious findings but had come to the wrong conclusions in the original hearing.

As part of this, Counsel for F highlighted that insufficient weight had been given to:
• The risks associated with UM and M’s continued devotion to it;
• The harm already suffered by L and further risk of harm to L;
• The social worker’s recommendations;
• The fact that the contact arrangements had already broken down; and
• That M had already backtracked from the undertakings she had previously offered in her oral evidence at the previous hearing.

Counsel for F also argued that the Judge was wrong not to act to address the growing alienation between F and L (which had been compounded by events since the original judgment).

Counsel for M responded by arguing that:
• No findings of harm had been made against M or that L had been alienated from F as a result of M’s conduct;
• The social worker was inexperienced in matters involving cults and children welfare;
• M would be willing to relinquish her belief system for L; and
• That F should not have had the impression that he could determine the terms of the undertakings.

M also made an application to cross-appeal, asking for F’s contact time with L to be reduced. This was based on M’s historic referrals to social services against F and F’s allegedly coercive and controlling nature (exampled by his insistence on stringent undertakings from M).

The court allowed F’s appeal, refusing M’s application for permission to cross-appeal, and postponed a final hearing for later in the year with the President of the Family Division.

Unusually, the decision to postpone was made to give M a final chance to distance herself from UM and reverse the process of alienation from F, with the court concluding: “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 Lara’s care to her father”.

The Court of Appeal on freedom of belief and alienation

In approaching their judgment and allowing the appeal, the court summarised the need for a neutral approach towards contact arrangements cases that concern the law on freedom of belief, drawing on Re G [2012] EWCA Civ 1233 in stating that the court “must respect the mother’s beliefs to the extent that the teachings of Universal Medicine are worthy of respect in a democratic society, but Lara’s welfare will always be the paramount consideration”.

As regards alienation, the court adopted the CAFCASS definition of alienation as “When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent”, adding that intention is not a prerequisite, but instead, attention should be paid to the process itself.

They cited examples of alienation such as: “portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.”

Once identified, there is a spectrum of severity and the remedy will depend on the assessment of the individual child’s welfare, with the court’s first inclination being to reason with the parents and only make orders when required to (per Children Act 1989 ss11A-11O), with changing the child’s home being a significant order, but not a “last resort” (see Louisa Adamson’s article on Re L (A Child) [2019] EWHC 867 (Fam) for further analysis of this point).

Summarising their approach to alienation, the judges stated that “the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available”. They went further to state that courts should approach these matters resolutely, as often the short-term, least stressful measures available may not be a long-term solution to the problem.

They concluded by stating that inaction is likely to strengthen the position of one party and make intervention even more difficult at the next occasion, highlighting the common problem that most judgments in these circumstances are effectively post-mortems conducted after the parental relationship has been irretrievably lost (see Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) ; Re A (Children) (Parental Alienation) [2019] EWFC B56 as leading examples of this).

Conclusions

This judgment reiterates that although there is a need to objectively consider and neutrally evaluate any freedom of belief issues, ultimately courts must ensure the welfare of the child is at the forefront of any ruling on contested child arrangements orders in cases such as this.

Secondly, even if courts are starting to become less tolerant in matters involving alienation (see “Parental alienation – are the Courts more willing to intervene?” by Marie Crawford) this judgment highlights the continued need for the courts to be proactive in identifying alienation, whatever the context, at an early stage and act decisively with the child’s medium and long-term welfare in mind (see [13] of this judgment in particular).

For further reading on the topic, members Lavinia Glover, Ronald Edginton, and Kevin Jackson have covered the importance of identifying alienation at an early stage in proceedings and the approaches to take in these matters. Their respective articles, “Parental alienation – the duty to identify at an early stage or risk getting it wrong”, “Parental Alienation: An example where the alienator succeeds and guidelines as to how to minimise it happening”, and “Parental Alienation: New Initiatives” are all recommended reading.

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