Not “Parental Alienation”? but heading towards intractability? What can be done?

Private Law (Child Arrangements Programme (CAP))

25 April 2018

Many practitioners are accustomed to seeing cases that do not quite fall within the category of “parental alienation” yet are characterised by the resident-parent’s views impacting adversely on the arrangements for contact between the non-resident parent and the child and often, as a consequence, on the relationship between the child and non-resident parent.   Usually such cases involve a father making an application to enforce a contact order and the mother meeting this with a cross-application to vary the previous order coupled with an assertion that the children simply don’t want to attend the contact that was previously considered in their best interests.  Data from the Ministry of Justice reveals that a mere 1.2% of the 4,654 enforcement applications made in 2015 were successful in spite of the presumption introduced in 2014 that it is in a child’s best interests to involve each parent in the child’s life, unless it can be shown that this involvement would not further the child’s welfare. [“The Review” Resolution January/February 2018].

The Courts have made it clear that it is not for children to decide whether they will take up contact or not, yet their reported wishes and feelings are often given a great deal of credence by the resident parent. In Re S (Contact: Intractable Dispute) [2010] EWCA Civ 447 it was recognised that the children, aged 12 and 13, had been given a responsibility that they should not have to bear.

The first step is to ascertain whether the behaviour complained of would fall into the category of “parental alienation” or not.

The authorities are clear that where actions may amount to “parental alienation” the Court should take a firm grasp from the outset and ensure that appropriate case-management directions are given at an early stage.  In Re E (A Child) [2011] 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”…

It is very important to ensure that any section 7 report directed addresses not the “expressed” wishes but the “ascertainable” wishes and feelings of those children involved as stated in Re H (Children) [2014] EWCA Civ 733where the Court of Appeal upheld Parker J’s decision to move the children at an interim stage to the care of the paternal family in spite of the Social Worker arguing forcefully against the children’s removal from the mother’s care on the strength of the children’s expressed wishes.  In rejecting the social worker’s recommendation Parker J 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.” 

It may also be worth making it clear to the CAFCASS officer in the body of any Order directing a section 7 report that the Court expects them to observe the children with the non-resident parent in addition to speaking to them about their wishes and feelings.

If CAFCASS considers that parental alienation explains the difficulties that are being encountered then they might suggest their “High Conflict Pathway” guidelines should be followed.  The CAFCASS approach in these cases is centred on providing therapy for the alienating parent through their 12 week programme entitled “Positive Parenting”.  (the trial of this programme is underway with an evaluation due in Spring 2018).

Other potentially useful directions may include transferring the case to ensure judicial continuity (essential if parental alienation is suspected) or joining the children as parties and appointing a Children’s Guardian.

But what if my case is not considered to fall within the category of those involving “Parental Alienation”?

In what are seen as “lower conflict cases” very real difficulties can still exist in trying to ensure that child arrangements orders are adhered to and children are not exposed to the negative views held by one parent (or both!) about the other.  As Lady Butler-Sloss observed when speaking of the 2017 report from the Nuffield Foundation “Finding Fault”: “If the parents have a corrosive end to the marriage, they are quite unable sometimes to recognise that a child loves both parents.  What children want is for parents to part amicably so [they] can have a life with both parents”.

In these cases it is always advisable to give early consideration to the imaginative use of Contact Activity Directions, Child Contact Interventions or Monitoring Orders but there are also non-court-based alternatives that may prove extremely helpful in assisting parents to co-parent in a way that benefits both them and their children.   Parents may want to give thought to whether they would benefit from participating in mediation (whether as part of a Separated Parents Information Programme “SPIP” or alternatively sourced) and/or completing a Parenting Plan (these can be downloaded from the CAFCASS website).  Another initiative is to be found in “co-parent coaching”.  The assumption enshrined in the Children Act is that being cared for by both parents is usually to be preferred but if the parents cannot establish a positive co-parent relationship then the risk of psychological and emotional damage to the child is significantly increased.  The aim of such coaching is to ensure that parents make choices for their children with the children remaining front and centre of that decision-making process and with all family members working together to ensure smooth transitions for the child between homes and to reduce any conflict that arises.

As one of the lawyers who represents parents on a daily basis I believe that it is encumbent upon us to offer information about the whole range of options available to them as a separating family and not to just concentrate on court proceedings.  Of course some families may choose to continue with the court process but others may well choose and benefit from alternative options that they may not necessarily have had previous knowledge of.





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