This is a post by Sarah Phillimore

On 1st March 2021 the President of the Family Division, Sir Andrew McFarlane, welcomed and endorsed the publication of the President’s Public Law Working Group (PLWG) report.

There are four further Best Practice Guidances

The application and case management

Support for work with families prior to proceedings

Section 20/section 76 accommodation

Special guardianship orders

This group was formed prior to the COVID pandemic to investigate the steep rise in public law cases and make recommendations to improve the system.

The President noted that the recommendations had come about ‘organically’ and by agreement which suggests that they are ‘both sound and necessary’. It was his ‘earnest hope and confident expectation’ that the recommendations would therefore but welcomed and put into effect by social workers, lawyers, judges, magistrates and court staff across England and Wales.

It is interesting to see the juxtaposition of ‘an earnest hope’ and a ‘confident expectation’. One does not sit easily with the other. It is also interesting to recall that the Norgrove Family Justice Review was only 10 years ago.

We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child.

This lead to the Children And Families Act 2014 which endeavoured to speed up care cases by permitting only 26 weeks from application to final order and requiring that experts are appointed only when ‘necessary’.

So what has gone wrong? Why only 10 years later do we have another comprehensive review? The problem appears to be twofold; the steep rise in the number of public law cases and the worrying evidence of significant regional variations that led some researchers to conclude, for example when looking at variations in numbers of Special Guardian orders, that “court and local authority cultures are more important than the perceived riskiness of the placement”.

The former President said this about excessive workloads in 2018:

My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one designated family judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term wellbeing of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”. Indeed, that is already happening and I could give you real examples of this happening now. 

47 core recommendations

There are 47 ‘core recommendations’. My vague plans to spend an hour or so going through the report thus withered and died on the vine. This weekend alone I will have to:

• draft a case summary and order
• Revise a schedule of allegations
• Check I have everything I need in the electronic bundle for another hearing
• deal with the emails that I received during an afternoon remote hearing

This is a light weekend. I hope to get all that done in 8 hours. If I was facing a contested hearing next week then I would be looking at closer to 12 hours work. So I gave myself 2 hours to write this. Excuse me if I am bad tempered. I do not know when I will find the time to read through this report with the care it deserves. I comment now on some key issues that jumped out at me. I do not do this in a spirit of cynicism or lack of respect for the hard work that has gone into this endeavour. However I can see immediately three key problems here:

• Recommendations which sound good – but what do they mean?
• Recommendations which sound good but which depend on a workforce with time to think about them.
• Recommendations we have heard before

And WHY the use of roman numerals? Seriously why? this is utterly exasperating in a report that recommends less reliance on jargon and clear explanations for parents.

Recommendations that sound good – but what do they mean?

Para 124 of the Norgove review stated: Children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it. Para 23(ii) of the PLWG states “ensure the voice of the child is at the centre of collective thinking”. What does this mean? In cases involving pre verbal babies and toddlers, what am I expected to do to make their ‘voice’ heard, what is ‘collective thinking’ and when is this to take place?

xxxix. the promotion nationally of consistency of outcomes – the report recognises that this is going to need some more work. But what does it mean? If every case is fact specific, as the report states, how is this ‘consistency’ to be measured and tracked? Given that the reasons for stark regional variations are not fully understood how will this be promoted?

Recommendations that sound good but depend on a workforce with time to think about them

xxix. renewed emphasis on effective IRHs

xxxvi. a shift in focus on bundles: identifying what is necessary

xxxvii. fact-finding hearings: only focus on what is necessary to be determined

xxxviii. additional hearings: only where necessary.

That word ‘necessary’ is a weasel word. Just like ‘abuse’ or ‘best interests’ it can expand and contract depending on the desires of who is using it at any given time. But one thing I know for sure – in order to make a good argument about what is or is not ‘necessary’ you must have time to know your case, know the issues, know the options. Do we have that time? I do not think we do. And when you do not have time to spend at least a couple of hours carefully analysing your case before each hearing, it is difficult to be ruthless about what the core issues are. The temptation is to chuck everything in and sort it out later, rather than risk not grappling with an issue which may turn out to be pivotal down the line.

Recommendations we have heard before

xxxii. experts: a reduction in their use and a renewed focus on “necessity”

xxxiii. experts: a shift in culture and a renewed focus on social workers and CGs;

xxviii. renewed emphasis on judicial continuity

When I was starting out I remember writing an article in 2001 which commented on the over-reliance on experts. I mused that this was probably due to the desire of many of us, who lack the time to be confident that we are making sound decisions, to ‘outsource’ that decision making process to someone else – who can then be blamed if it all goes horribly wrong. But its also due to the fact that many parents in care proceedings will suffer horribly from their own child hood trauma, leaving them with unresolved mental health issues that utterly blight their parenting prospects and will continue to blight them, absent some expensive and lengthy therapy which of course will never be provided because no one will pay for it. We will be circling this wagon indefinitely and will confidently assert that in the next round of reviews, reports and best practice guidance we will still be referring to this.

Judicial continuity – I am confident that many of the problems which drag the system down could be made much better if only we had judicial continuity. If we were able to bring urgent applications to a Judge who knew the case. If the Judge could work collaboratively with the advocates to move things along, rather than hearing things afresh at each hearing. Apparently there may be some more money being found for more judges but this has been on the wish list constantly since I started out, 20 years ago.

There is so much more that needs to be said

But I am frankly over whelmed by the sheer weight of all these recommendations and best practice guidances. It is ironic to think that the time I will need to spend reading about what my best practice must be, is time that will not be spent actually practicing better. I hope that this blog post will operate as a spur to me at least, to go back and read with some more thought and care.

But I find myself reluctant and resistant for this reason. Any system that requires frequent reviews and recommendations, when the ‘core’ recommendations number 47 and are accompanied by 4 separate ‘best practice’ guidances, is a system which is perhaps distracting itself from the key problems.

What many of the children I deal with need is not a pious exhortation that ‘their voice and lived experience’ will be central to our ‘collective thinking’. Rather they need urgent mental health intervention and safe accommodation and they need it NOW. Or they are babies about to be removed from their mothers in hospital and there are no mother and baby placements available, none at all. Or they are the children of parents with learning disabilities and there is no support available to support the parents to care for them.

I have made these points many times before in many different environments. Fundamentally I think the problem is this. We don’t live in a society that cares about children, other than as future economic actors. The rise in care proceedings shows this. Because if we really cared about children, wouldn’t we do more to prevent their parents sliding out of view?

EDIT March 9th 2021

I attended today the remote webinar introducing the key themes, recommendations and plans for implementation of the report and I am happy to say I feel more energised and positive now after the key note speeches of the President and Mr Justice Keehan. Please see these comments on the speeches.

https://threadreaderapp.com/thread/1369234969290227716.html

This is the text of a talk I gave at a Stowe Family Law Webinar on 24th February 2021. I discussed the often stark polarising views about parental alienation and how parents can attempt to navigate the court system. I stress that I am NOT talking about cases were one parent has been found to have caused serious harm to either the other parent or the child – these are not cases of ‘parental alienation’, these are cases where the abusive parent is rightly kept away from the children. But allegations that are not proved are not facts and cannot be used to justify denying contact with another parent.

Parental alienation – the development of the ‘two camps’ and how the court will manage these cases. 

What does ‘parental alienation’ mean and how has it developed? 

I use the term ‘parental alienation’ to mean when one parent acts without good reason – either deliberately or unconsciously – to persuade a child to think and act negatively towards the other parent to the extent that the child rejects any form of relationship with that other parent. 

Dr Childress puts it this way: ‘If a child is rejecting a parent, one parent is abusing the child. It is the duty of the court to find out which it is”

I could talk for hours about the development of ‘parental alienation’ as a concept. It has generated a huge amount of ‘research’ and discussion. But I do not want to get bogged down in arguing about labels. There are many in the ‘pro PA’ camp who are very keen for there to be a definition of PA in the Domestic Abuse Bill. I am afraid to say I think this is an example of ‘magical thinking’ – that by simply defining a term,  gives the courts the effective tools to change behaviour. 

What is crucial is that we identify the behaviour of some parents, its impact on the children and what we can do to get these very serious cases dealt with as quickly and fairly as possible. Time really is of the essence in such a situation; the more time that passes, the less likely you are to restore any relationship between child and alienated parent. 

The ‘two camps’ of thought. 

Sadly, in so many areas of life and law, our ‘public debate’ appears to descend into pushing and shoving between two distinctly opposed groups. 

Group one call for greater recognition of the prevalence of parental alienation and the harm it does. For example, in 2020 Good Egg Safety CIC produced a report about parental alienation and its impact, concluding that parental alienation was: 

A devastating form of ‘family violence’ with psychological abuse and coercive control at its heart 

Of the 1,513 who responded to the survey, parental alienation was a live issue for 79% of respondents who were split 56% male, 44% female. 80% experienced an adverse impact on their mental health, 55% an adverse financial impact. 58% saw court orders breached.

But Group Two either denies the existence of parental alienation or claims it is a ‘charade’ or a ‘tool’ used by abusive men to hide their abuse. This view has some very high profile support, including the Victim’s Commissioner for London who tweeted in approval on February 4^th an article which demands ‘parental alienation’ must not be defined as ‘abuse’ in the Domestic Abuse Bill.

The power of PA is that it seems like a reasonable concept; you can imagine scenarios where one parent acts to exclude another. Yet PA has instead become a smokescreen, a tactic to obfuscate custody hearings and garner sympathy from judges and custody evaluators who may have an instinctive suspicion towards women. Its objective is to make abusive men the victims and protective mothers the perpetrators. Although PA proponents use gender-neutral language, empirical studies have demonstrated that its impact is gender-specific.

This is quite an odd article – the language used is alien to the English court system –  ‘custody’ and ‘custody evaluators’  – and the author is an academic in Australia. This is perhaps ironic considering the reasons why England and Wales abandoned the terms ‘custody’ and ‘access’ in the Children Act 1989, due to fears that this type of language increased the risk that parents would see children as property, to be passed back and forth like parcels. Needless to say, I do not agree with what the article says. 

It is a great shame that we have ended up in these polarised camps. I have been a family lawyer since 1999. I have dealt with 100s of private law cases, acting for mothers, fathers and children. I have absolutely no doubt, because I have seen it many times, that mothers and fathers act to deprive the other parent of a healthy relationship with their child and do this for no good reason. And equally, there is no doubt that some abusive parents will use claimed parental alienation as a smoke screen for their own abusive behaviour. But the latter does not negate the existence of the former. 

So how do the courts identify parental alienation?

You can find a useful review of the case law up to 2018 in the  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:

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.

Two more recent authorities are;

• Transfer of residence of child from mother to father – RH (Parental Alienation)  [2019] EWHC 2723 (Fam) (03 October 2019)
• Re S (Parental Alienation: Cult)  [2020] EWCA Civ 568 – child ordered to live with father if mother continued to refused to give up her adherence to a ‘harmful and sinister’ cult.

The CAFCASS assessment framework for private law cases has a useful 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 one 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 factors operate AGAINST proper resolution of cases involving parental alienation? 

‘Structural problems’ 

You must be aware of the way the court system is structured that operate against effective resolution. It is clear that an adversarial court environment is not a good place for angry or frightened people to be.  Even the physical environment of many courts operates to reduce the chances of effective negotiation and compromise, with no where private to sit and talk. Of course, remote hearings don’t make any of that any easier.  But on a positive note the findings of the Nuffield Observatory indicate that the perception at least of such hearings is that they are fair most or all of the time.

The key point is that the courts are overwhelmed and never more so than now. 

There is a huge backlog of cases throughout the system and urgent public law cases will get priority. So dire is the current situation that recently HHJ Wildblood QC felt it necessary to publish a judgment warning parents off coming to court to argue about trivial matters ,such as the precise location of pick up and drop off.  See: B (A Child) (Unnecessary Private Law Applications), Re [2020] EWFC B44 (25 September 2020).

The problem is that mostly these arguments are not about handovers at all – they are simply a manifestation of many years of emotional pain, frustration or desire to control – all of which can feed into the developing situation that is very serious and risks causing significant harm to the children. 

It’s always good to remember that the courts are pre-disposed to want you to go away. There may be initial resistance to identifying a case as a serious example of risked emotional harm. You must hit the ground running with a clear case, effectively presented.

Lack of objectivity

It is rare – I would say impossible – for any case to involve someone who is 100% a victim of another’s behaviour. Clients must be encouraged to look with realism about their own contributions to any breakdown in the adult relationships and do what they can to mitigate this. A key responsibility for us as lawyers is not to engage personally and I know this is often difficult to guard against when we feel instinctive sympathy for a client denied any relationship with his or her children for no good reason that we can see. 

However I am often taken aback by the tone of correspondence I see between solicitors. It is clear that anything that operates to increase the emotional tension between the parties is likely to prolong and exacerbate existing difficulties. 

Delays in finding of fact hearings. 

It seems likely that most cases will require a finding of fact. These are not cases where the alienating parent is likely to ‘let go’ of any allegations and the court will need a firm basis on which to proceed if considering a change of residence. 

And do not wait until the outcome of the fact finding to consider the next steps. Some cases will require input from the LA as to whether they will consider care proceedings and provision of foster placement.  Be ready to make the request for a section 37 report. 

Lack of exit plan 

So you have navigated the fact finding process and a court has determined that the child’s residence needs to change.  Depending on the length of time a child has been alienated and the degree of opposition expressed, you may need expert help on the ground. This will require careful thought as there are sadly many examples of when attempts to change residence went wrong – one example is Re A (Children) (Parental alienation) [2019] EWFC

There is a serious problem is the shortage of available expert practitioners in this field and risk that those who do operate are partisan. Check CVs carefully! Do not instruct anyone who purports to offer psychological help but who is NOT subject to scrutiny by any external regulator.

What about costs? 

I have only had two cases in my career where costs were ordered against a parent (both mothers) who were found to have deliberately obstructed the court process. I have no evidence to support my feeling that this may become an increasing trend, but be aware of the potential for a costs argument and be ready to make it. And don’t – as I did! – neglect to consider the rate of interest to be attached to a cost order and the time from when it starts running. 

Basic principles. 

Costs orders in children’s cases are exceptional but possible. 

The Family Procedure Rules adopt most of the costs rules of the Civil Procedure Rules with one important distinction. FPR r 28.2(1) disapplies r 44.2(2) of the CPR; being the ‘general rule’ that the unsuccessful party will pay the costs of the successful party. There is thus no general assumption in family proceedings that ‘costs follow the event’. The general rule is instead that parties have a  ‘clean sheet’ i.e. there is no presumption as to whether or not there will be a costs order. 

The Judge retains a general discretion to make a costs order in family proceedings– as set out in primary legislation (see s51(1) SCA 1981) and repeated at r28.1 FPR. 

The conduct of the parties is a relevant factor at CPR r44.2(4)(a), which is not disapplied by FPR r 28.3. ‘Conduct’ is further defined at CPR r44.2(5):

1. conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
2. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
3. the manner in which a party has pursued or defended its case or a particular allegation or issue; 
4. whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim. 

See principles derived from Re R(A minor) [1996] EWCA Civ 1120 and  In the matter of S (A Child) [2015] UKSC 20 :

1. The child’s welfare is paramount, the court adopts a quasi-inquisitorial approach and there are many possible outcomes;
2. The court generally needs to hear from both parents: ‘no one should be deterred by risk of having to pay other sides costs from playing their part in helping the court achieve the right solution’;
3. The court can assume that the parties are not generally motivated by malice;
4. The parties need to work together and one should not be stigmatised as ‘the loser’;
5. Costs orders can reduce funds available to the family.

How does the court identify ‘unreasonable conduct’ which would make it appropriate to order costs?

The Court of Appeal in R (a Minor) considered it in this way:

Of course, the parties should not be deterred by the prospects of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success… in other words there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of his child’.

The decision in Re R has been followed and endorsed in a number of cases; for example, see Re F (Family Proceedings: Costs) [2008] EWCA Civ 938 and G (Children) [2013] EWCA Civ 1017.

The court does not need to make a finding that the party acted maliciously or in deliberate bad faith; a party may genuinely believe their actions are reasonable but in reality they are not. 

In G (Children) cited above, a costs order was upheld against the father because it had not been necessary for him to ‘launch these proceedings’ and the proceedings had been used as a vehicle for ‘getting at the mother’. There was ‘absolutely no merit’ in the case bought by the father. Thus the father had acted unreasonably both in starting the proceedings but more importantly in the way he had conducted himself throughout the proceedings.

Sarah Phillimore 

St Johns Chambers

20^th February 2021