This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?
Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.
This article was first published by Lexis on 19th May 2015 and has since been edited – you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps
To what extent can or will the courts intervene to force parties out of entrenched positions?
Most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child. Descriptive language is used to highlight the complexity of these cases – for example, implacable hostility, intractable dispute, high conflict dispute. In some of these cases the judge’s sense of despair at having failed to achieve a positive outcome for the child is palpable. In Re D (Intractable Contact Dispute: Publicity)  EWHC 727 (Fam) Munby J memorably began his judgment by saying: ‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D.’
HHJ Bellamy 2018
The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.
Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).
The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.
General principles from case law.
The following cases provide general principles:
- W (Children)  EWCA Civ 99
- Re C (A Child) (Suspension of Contact)  EWCA Civ 521,  2 FLR 912
- Re H-B (Contact)  EWCA Civ 389
Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:
- the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
- It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.
- The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.
- The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
- There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact)  1 FCR 964 at pp 971G–972A per Waite, LJ.
- If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established
- It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W .
EDIT 9th April 2019 – for a thorough review of relevant practice and principle see the Court Of Appeal decision in G (Children: Intractable Dispute)  EWCA Civ 548
Potential problems with the courts’ approach.
The courts have unrealistic expectations about how parents will respond to pleas to act responsibly.
A horribly clear example of where the courts’ pleas fell on deaf ears is found in the D (A child – parental alienation) (Rev 1)  EWFC B64 (19 October 2018) which is discussed below.
In Re H-B (Contact)  EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.
The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent. See paragraph 75:
the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.
- I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor  AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones  EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager. But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parent whose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’
The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:
- The increasing autonomy of the older child.
- The resident parent who simply will not or can not support a relationship with the other parent.
The older child
For older children, the suggestions by the sir James Munby that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children)  EWCA Civ 1195 where the children simply ran away.
Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.
This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’. In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.
The parent with whom the child lives does not support contact
This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?
These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.
In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.
The parent who deliberately alienates a child
Discussion of D (A Child – parental alienation) 2018
A very interesting case about parental alienation has been published by the DFJ for Derbyshire, HHJ Bellamy. This is D (A child – parental alienation) (Rev 1)  EWFC B64 (19 October 2018). This case involved the child D who was born in 2005. Proceedings had been ongoing for over ten years, albeit with a four year respite from 2012 – 2016, and had cost a staggering amount of money for both parents – about £320,000 over ten years. A judge hearing the case in 2008 commented: ‘On the face of it this is already a dispute which is going to escalate, or has the potential to escalate and the risk is that D will be damaged by these matters.’ And sadly, that is exactly what came to pass.
There was a residence order made in the father’s favour in 2011 and the mother’s application to appeal was refused in 2012. Following a relatively peaceful four years, the mother then refused to return D to his father’s care in November 2016 and the father did not see D again until March 2017. A final hearing was listed for April 2018 after the instruction of a psychologist. We can see clearly in this chronology how such cases often end up drifting.
in early 2018 D made allegations of a serious assault upon him by the father and contact against ceased. The police became involved but took no further action and the Judge granted the father’s application in August 2018 that D give evidence at the finding of fact hearing.
D gave evidence and was very clear, saying (para 74):
I just want a normal life, living in happiness with mum. I cannot go back to my father’s. I was promised by my mum and the police officer that dad wouldn’t hurt me ever again. Now, I am here in court because he hurt me bad. Why can’t I just have a life that isn’t based on court and stress? I just want a life that I can live not live in fear from, please.’
D’s guardian put forward a schedule of six allegations that D made against his father. The court noted the evidence of the psychologist Dr Spooner at para 85.
D presented with what seemed like a pre-prepared and well-rehearsed script of all the things he wanted to tell me about his father. He took every opportunity to denigrate him, his family and his partner. Each time I attempted to ask him about issues not related to his father, such as school, hobbies and so on, he quickly derailed himself and continued on his frivolous campaign of denigration.
The court heard a great deal of evidence from social workers and other experts about the alleged injuries suffered by D. It is disturbing to note how the Judge was not assisted by some of the evidence from the local authority, not least because the social worker who prepared the section 37 report was working from the assumption that everything a child said must be true.
The father denied assaulting D but had to hold his arms when D was being aggressive towards him. The Judge did not find any of the allegations proved; he found the father and his partner to be honest witnesses and this was a case where the mother was determined to ‘win’ at any cost. The judge found that she had deliberately alienated D from his father.
Analysis of what is meant by ‘parental alienation’
From paragraph 165 the Judge considers the issue of parental alienation. At para 169 he refers to the research Dr Julie Doughty at Cardiff University. She comments:‘
There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult…’
At para 170 the Judge considers the new CAFCASS assessment framework for private law cases. The assessment contains a section headed ‘Resources for assessing child refusal/assistance’ which in turn has a link to a section headed, ‘ Typical behaviours exhibited where alienation may be a factor ’. These include:
- The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises on parent and devalues the other.
- Vilification of rejected parent can amount to a campaign against them.
- Trivial, false, weak and/or irrational reasons to justify dislike or hatred.
- Reactions and perceptions are unjustified or disproportionate to parent’s behaviours.
- Talks openly and without prompting about the rejected parent’s perceived shortcomings.
- Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember.
- Extends dislike/hatred to extended family or rejected parent (rejection by association).
- No guilt or ambivalence regarding their attitudes towards the rejected parent.
- Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
- Claims to be fearful but is aggressive, confrontational, even belligerent.
What can lawyers to either stop cases going wrong or intervene positively when they do?
Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents. Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.
However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child)  EWCH 3251 at paragraph 11 onwards and A (A Child)  EWCA Civ 1104.
I suggest that the fundamental requirements are:
- Careful analysis of the issues and the available options;
- Which feeds into a realistic timetable, avoiding drift
Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.
Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.
The following considerations may help this process:
- Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.
- If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;
- If a case shows signs of being intractable, judicial continuity is very desirable;
- Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;
- The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;
- Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;
- Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc
- If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?
Dr Doughty’s recommendations (cited with approval by HHJ Bellamy in para 171 of his judgment in Re D above), following a review of the case law and literature about parental alienation are:
- Courts will not allow the implacable hostility of one parent to deter them from making a contact order where the child’s welfare otherwise requires it. In such a case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered.
- In some very exceptional cases, where the non-resident parent’s behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.
- Where allegations of parental alienation are made, the court will need to record a determination of the facts, or risk an unnecessary appeal.
- There is no blanket solution, but outcomes ae more likely to meet the child’s needs where there is:
- Early resolution of disputed facts about domestic violence.
- Early intervention where alienation appears to be an issue
The need to consider findings of fact seriously has been endorsed by the President of the Family Division – note J (DV Facts)  EWCA Civ 115 (06 February 2018)
The views of Sir James Munby
The former President of the Family Division delivered a talk to the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018, entitled ‘Dealing with Parents’ Conflict and Unreasonable Behaviour’ where he commented:
What do I have in mind?
- First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
- because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S EWHC 2521 (Fam),  Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction,  Fam Law (forthcoming); or
- because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
- Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
- Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow:
- what I will call the ‘in and out’ track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
- what I will call the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
- what might be called the ‘special’ track for the potentially more complex cases.
Finally, and assuming that the case is to proceed in court, two things are essential:
- First, proper assistance, before and at the hearing, for unrepresented litigants.
- Secondly, radical reform of the process at the hearing itself.
I take these in turn.
Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:
- the guidance and other explanatory literature available for litigants in person is sadly inadequate;
- the court forms are very far from user friendly; and
- the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.
However, in my view, the fundamental issue will always remain; these are not legal problems. These cases are almost always a manifestation of the psychological vulnerabilities of one or both of the parents.
Lawyers and the courts have poorly designed and often ineffectual tools at their disposal to make much headway. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.
See Re H (Children)  EWCA Civ 1216 for another sad example of the limitations of the court process in attempt to resolve disputes between parents.
See Re C (A Child)  EWHC 557 (Fam) – Unsuccessful appeal to the High Court by a mother against a decision which transferred the residence of C, aged six, to her father, in light of the mother’s opposition to progressing C’s contact with her father. Permission to appeal was refused as being totally without merit.
See this article from the Custody Minefield about how intractable contact disputes can go wrong or get worse.
Review of the law and practice around ‘parental alienation’ in May 2018 from Cardiff University for Cafcass Cymru. There is a very useful summary of the relevant case law in Appendix A. The report concludes at para 4.7:
There is a paucity of empirical research into parental alienation, and what exists is dominated by a few key authors. Hence, there is no definitive definition of parental alienation within the research literature. Generally, it has been accepted that parental alienation refers to the unwarranted rejection of the non-custodial parent and an alliance with the alienatingparent characterised by the child’s extreme negativity towards thealienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent. Yet, determining unwarranted rejection is problematic due to its multiple determinants, including the behaviours and characteristics of the alienating parent, alienated parent and the child. This is compounded by the child’s age and developmental stage as well as their personality traits, and the extent to which the child internalises negative consequences of triangulation. This renders establishing the prevalence and long-term effects of parental alienation difficult.
With no clear accepted definition or agreement on prevalence, it is not surprising that there is variability in the extent of knowledge and acceptance of parental alienation across the legal and mental health professions. The research has however, provided some general agreement in the behaviours and strategies employed in parental alienation. This has led to the emergence of several measures and tests for parental alienation, although more research is needed before reliability and validity can be assured. Many of the emerging interventions focus upon psycho-educational approaches working with children and estranged parents, but more robust evaluation is needed to determine their effectiveness.
The Cafcass Child Impact Assessment Framework (CIAF) sets out how children may experience parental separation and how this can be understood and acted on in Cafcass. The framework brings together existing guidance and tools, along with a small number of new tools, into four guides which Cafcass private lawpractitioners can use to assess different case factors, including:
- Domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control.
- Conflict which is harmful to the child such as a long-running court case or mutual hostility between parents which can become intolerable for the child.
- Child refusal or resistance to spending time with one of their parents or carers which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason.
- Other forms of harmful parenting due to factors like substance misuse or severe mental health difficulties.
A case where shared residence was agreed after 10 year dispute – see Re J and K (Children: Private Law)  EWHC 330 (Fam)