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Five Jurisdictions – Addressing Parental Alientation

The Five Jurisdictions Family Law Conference, this year hosted by the Family Lawyers Association of Ireland, took place in Dublin from 27 -29 May 2022.

The conference, attended by David Lister, Jennifer Moore and Rory Laide from the Rayden Solicitors Hampstead office. The conference provides the opportunity for international practitioners in Scotland, Ireland, Northern Ireland, England and Wales to come together to share the developments in their respective jurisdictions. It is an opportunity to discuss legal developments, to share knowledge and build relationships with our counterparts in other jurisdictions thereby creating an international network of reputable lawyers with expertise in Family Law.

The topics this year were: parental rejection in child access disputes; Brexit; Arbitration and Family Law. This blog will focus on Parental Alienation and the current approach of the courts within our jurisdiction of England and Wales, and provide some practical tips for parents involved in such cases.

The Current Approach to Parental Alienation Cases

In the case Re S (Cult: Parental Alienation) [2020] EWCA Civ 568 the Court of Appeal allowed an appeal by a father against the dismissal of his application that his 9 year old daughter Lara, live with him, in circumstances where the trial judge had found that Lara had suffered harm in the context of her mother’s adherence to Universal Medicine, found by the Judge to be a cult, and that a process of alienating Lara from her father had begun.

When the case was remitted, the court ordered a transfer of Lara’s residence from her mother to her father immediately. The court ordered that there was to be no direct or indirect contact between the mother and the child over the summer, and that the reintroduction of contact between the mother and child was to be decided by the father in consultation with an independent social worker.

Interestingly, in the aforementioned case the independent social worker’s evidence was that the distress that would be caused to the child by the transfer of residence would be short-term and essentially that it would be outweighed by the benefits in terms of her medium to long term welfare.

The aforementioned case is an extreme example. The judgment in this case makes clear that a transfer of residence is not something the court will order lightly; it will only happen where necessary and proportionate and where the welfare of the child justifies such an order. The balance of harm (looking at short-term or immediate harm caused by a transfer and balancing that with the child’s overall medium to long-term welfare) is one of the most significant components for the court when making a decision in these sorts of cases.

CAFCASS

In cases concerning Child Arrangements (custody/ residence/ contact disputes), where there are complex issues such as parental alienation CAFCASS (Child and Family Court Advisory and Support Service) are frequently instructed to provide a welfare report to the courts. CAFCASS define parental alienation as:-

“the unjustified resistance or hostility from a child towards one parents as a result of psychological manipulation by the other parent.”

CAFCASS use the Child Impact Assessment Framework (CIAF) to guide the individual CAFCASS officers tasked with reporting to the court. One of the four specific guides contained within the frame work is Child Refusal and Resistance to spending time with a parent such as alienating behaviors. There is guidance contains analytical tools for the CAFCASS officers to use in order to look at and examine alienating behaviours.

The guidance recommends that when completing an assessment in a case where there is alienation, the CAFCASS officer should use a balance sheet approach to inform their recommendations to the court. They should consider the strengths and risks posed by both parents and consider the pros and cons of all of the available options, including whether there should be a change in residence/ where the child lives. The guidance includes key factors to consider, one of which is:

“would a period of no “time with” the parent who demonstrated alienating behaviours encourage positive improvements in the relationship between the child in the new arrangement.”

Practical Tips

1. Cases which involved parental rejection or alienation are often extremely complex; the behaviours of the parent responsible for alienating the child can be subtle when considered in isolation, but the culmination of the behaviours, frequency and the ‘drip effect’ of the continued exposure to such behaviours can have a drastic input on the child concerned. Parents who are concerned about alienation should keep a diary of relevant incidents or statements made by their child which give them cause for concern.

2. Acting quickly is crucial; the older child becomes, the more weight the court will attach to their wishes and feelings and on a purely practical level it becomes increasingly likely that the child concerned will “vote with their feet” and may well return to the care of the alienating parent regardless of what the orders of the court provide for.

3. Consider a therapeutic approach, such as the early appointment of an independent social worker and/or family therapy and support for the child concerned.

4. Consider, with your legal team, joining the child or children to the proceedings and the appointment of a Rule 16.4 Children’s Guardian, to enable the court to hear independently from the Guardian on the views of the child.

5. Seek urgent legal advice from lawyers experienced in dealing with the complexities of cases involving emotional harm and alienation or parental rejection by contacting us at Rayden Solicitors.

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