Date: Tue 04 Dec 2018

Parental alienation

June Venters QC of Venters Solicitors and Lamb Building Chambers, a family law specialist, shares her views and her recent experience of a case establishing the existence of parental alienation. In particular, she explains how the experts came to be criticised.

Background

Parental Alienation - Where are we now at the end of 2018?

A number of very useful articles have been written on the subject within the last two years. However, are we any further forward in understanding what this truly involves and are the courts and professionals able/willing to recognise it?

The most recent review and which was undertaken on behalf of Cafcass Cymru was published in April 2018. The review was commissioned to provide an evidence base to guide their practice. Whilst the review found little empirical evidence of the prevalence of alienation, its effects, or the basis of any interventions, taking the child’s standpoint, it acknowledges that it is essential to differentiate between situations where children are justified in feeling estranged from a parent from situations where they may have no independent, rational reasons for taking that position.

Some practitioners have questioned the reliability of the Cafcass review and its findings, suggesting that a small number of authors with polarised views conducted the research. It is, nonetheless, worth consideration and includes a list of relevant cases that have been determined by the court.

The Cafcass current website refers to parental alienation and under the heading “How do we deal with parental alienation?” It states “Building on existing guidance, the Cafcass Child Impact Assessment Framework has been developed to help our Family Court Advisers (FCAs) identify how children are experiencing parental separation and to assess the impact of different case factors on them, including parental alienation.” Given the subsequent Cafcass Review in April 2018, I question the approach Cafcass are now taking to parental alienation and would be interested to know the training Cafcass is now delivering to its Family Court Advisers on this subject.

Somewhat more helpfully, I would suggest, is a keynote address by Lord Justice McFarlane on 25 June 2018, which he made shortly before becoming President of the Family Division. One of the subjects he addressed was parental alienation. He acknowledged the debate, which has exercised the minds of psychologists and psychiatrists for some time now as to whether or not parental alienation could be classified as a “syndrome.” He drew a comparison with the historical debate that existed in relation to “Munchausen’s Syndrome by Proxy” and whether this amounted to a mental health diagnosis. He noted how, in time and in relation to that issue, rather than entering the psychological/psychiatric debate, the courts began to focus on the particular behaviour of the particular parent in relation to the particular child in each individual case. If such behaviour was found to be abusive then action was taken, irrespective of whether or not a diagnosis of a particular personality or mental health condition in the parent could be made.

Lord Justice McFarlane’s views were that the approach to “alienation” should be the same. He readily accepted that in some cases a parent is able, either deliberately or inadvertently, to turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent; where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. He further acknowledged that in such a situation it is likely to be emotionally harmful for the child to grow up in circumstances, which maintain an unjustified and wholly negative view of the absent parent.

He was also of the view that where there are significant allegations of alienation, just as where there are allegations of domestic abuse, there needs to be a fact-finding hearing. Whilst Lord Justice McFarlane did not specify in this keynote speech the need for urgent consideration of a fact-finding hearing, it is implicit, I suggest, because of his comparison with alienation and domestic abuse and the court of appeal judgment of Re J Contact Orders Procedure 2018 EWCA Civ 15 over which he had presided. At paragraph 45 and in delivering that Judgment, Lord Justice McFarlane had referred to Family Procedure Rules 2010, PD12J (‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’) and in particular, paragraph 19 which requires the court, when a fact-finding hearing is considered necessary and amongst other things, to ensure that the hearing is held as soon as possible.

Thus, the need for a fact-finding hearing to take place in cases of significant allegations of parental alienation is both necessary and urgent. Something I continue to find, as a practitioner that is not easily or readily recognised universally around the country by both courts and professionals practising in family law. Nonetheless, there is clear senior judicial authority in support of a fact-finding hearing being held and practitioners should not be deterred in pursuing such a course of action in cases where it is justified.

Recent case

In a recent case in which I have been involved, allegations of parental alienation required determination:

D (A child: parental alienation) [2018] EWFC B64 (19 October 2018) - A case that addressed so many of the issues unique to parental alienation

This case encapsulates so many of the issues with which courts need to grapple when faced with allegations of significant parental alienation. It is a reminder to all practitioners of the need to familiarise themselves with all historical proceedings relevant to the case in question and to stand firm in the face of opposition when fellow professionals involved in the case dismiss allegations of significant parental alienation. It also illustrates the value of a child giving evidence and the benefits of a thorough ground rules hearing and the assistance and expertise of a skilled intermediary.

I represented the Father. After a contested hearing, the Mother was found to have “deliberately alienated” the child.

Although the case has been law reported, it is on-going with the welfare hearing yet to be determined. For that reason, I will confine this article, in the main to one of the issues that arose, which was the standard and quality of its experts, not all of which is confined to only those cases involving parental alienation.

Experts behaving badly

Before looking at what happened in this case, it is helpful to be reminded of what is stated in the aforementioned Cafcass Welsh Research. Para 6.2 states: “It is as well to remember that it is the judge who is responsible for determining disputed facts, not the family court adviser (QS v RS & Anor [2016] EWHC 1443 (Fam)). Although mediation and alternative dispute resolution can be appropriate and encouraged in family law, section 8 applications are still subject to the adversarial legal process and disputed facts about what a non-resident parent may describe as ‘parental alienation’ are for the court to settle, not a family court adviser. As Baker J said in A London Borough Council v K [2009] EWHC 850 (Fam) “No expert, however, experienced and however well briefed about the case, will be in a position to say where the truth lies. Only the judge sees and hears all the evidence.” [162]

In this case, four experts, in particular, were identified as justifying criticism:


1. The author of the Section 37 report [Social Worker]

  • Failure to acquaint herself with the historical evidence of this case

    It was clear from cross-examination on behalf of the Father that this social worker had not read the relevant historical papers in this case including previous judgments where serious criticism of the Mother had been made. Therefore, the social worker was assessing the case without relevant and proper knowledge of the facts. She was taking what the Mother was saying on “face value” and failed to observe the child with his Father.

    When commenting on this failure, the Judge concluded that “One of the most disturbing aspects of Miss S’s work was her failure to acquaint herself adequately with the relevant background papers. As I noted at the beginning of this judgment, in the period from 2008 to 2012 there were several contested hearings between the parents concerning [the child]. Those hearings took place before different judges. One of those judges, Recorder McLaren QC, rejected all of the mother’s allegations of violence by the father, including an allegation of rape. He also rejected her allegation that the father had physically abused [the child]. He made a number of withering criticisms of the mother.” [209]

  • A lack of significant experience, expertise or training in the field of parental alienation

    The Judge, when taking her evidence as a whole doubted that she had any significant experience or expertise in this particular area. She accepted that she had not undertaken any relevant training courses within the last 10 years.

    The Judge’s view on the failure of the social worker to acquaint herself with the history of this case, coupled with her lack of knowledge was to seriously question the judgments she had reached when conducting her assessment.

    The Judge said this “In this case, Miss S’s failure to read the papers carefully has meant that previous findings of fact and their current significance have not been taken into account. Previous judicial assessments of the mother (in particular) have also been overlooked and therefore have played no part in conclusions reached when undertaking an up to date assessment of her. When taken together with Miss S’s obvious lack of knowledge and experience in the area of parental alienation, the judgments she has reached become highly questionable.” [211]

  • A failure to be “open minded” when receiving a child’s disclosures

    Once again and as a result of cross-examination on behalf of the Father, it was evident that the approach of the social worker was a child’s disclosures should always be believed and that action taken should be on the assumption they were true. She openly admitted in her oral evidence that she believed the child.

    She took the view that the child had been consistent in his evidence, when, in fact when assessing the whole of the child’s evidence this was not correct but even if it had been the Judge expressed the view that the social worker had failed “to consider the possibility that what she regarded as consistency could, in fact, simply be rehearsed.” [212]

  • Childs’ wishes and feelings

    Previous articles written on this subject have warned of the need for caution when considering a child’s wishes and feelings. Unfortunately, this social worker appeared utterly oblivious to such need. As the Judge observed “She also appeared to take the view that it is not D’s welfare that is paramount but his wishes and feelings.”

  • A failure to see the child with each parent

    Another serious failing was not seeing the child with his Father and only seeing the child with his Mother. This was even more significant because the consultant psychologist who had seen the child with each parent had commented in his report how the child’s behaviour with each parent was very similar, dispelling the suggestion the child was making about the fear and intense hatred he had for his Father. The psychologist had the benefit of comparing the child’s behaviour whilst in the company of each parent. The social worker did not.

  • The Judge’s summary of the value of the section 37 investigation

    “With respect to this finding of fact hearing, there is, I regret to say, nothing whatsoever in Miss S’s report that assists me in determining whether any of the factual issues I am investigating are true. Neither would I be assisted by this report if I were dealing with welfare issues. The report is based upon an inadequate reading of the background papers, a flawed understanding of the background history, a lack of relevant experience or expertise in dealing with cases of parental alienation and a flawed understanding of the approach that should be taken in evaluating and responding to disclosures made by a child.” [214]

  • Lessons learned

    In my view, much should be learned from this experience by all professionals involved in cases where significant allegations of parental alienation have been made, the most important of which, I suggest is the need to approach such a case with open-mindedness.

    Sadly, it also highlights the need for better training of all professionals in this field. Whilst the Cafcass review aforementioned has determined that cases of parental alienation are rare, such cases, as illustrated here exist. They are complex and require expertise and experience by all professionals involved in the case, including the legal representatives. They should not be treated as “children arrangement disputes.” They go well beyond such cases.

    For those cases where parental alienation truly exists, the effect on the child, if left unaddressed could be lifelong. Alienating a child from a parent risks serious emotional harm and future mental ill health in adulthood.


2. The community paediatrician who conducted the child protection medical

  • A failure to follow the guidance provided by the Child Protection Companion published by the Royal College of Paediatrics and Child Health.

    The Judge was at pains to remind all paediatricians involved in child protection cases that “The Royal College of Paediatrics and Child Health has published the Child Protection Companion, setting out on-line guidance for paediatricians. This is an invaluable on-line tool for all paediatricians, continuously updated. It should be regarded as compulsory reading for all paediatricians who are routinely involved in safeguarding.” [150]

    In this case and from the disclosure provided, the paediatrician failed to:

    • Follow the Compendium’s guidance with regard to the taking of medical photographs and as such they did not assist the Judge in the forensic process [153]
    • Record whether the photo documentation, in this case, represented what she saw at examination
    • Failed to properly record a description of the alleged injuries
    • Failed to seek a photograph of the object onto which it was alleged the child had been pushed allegedly causing the alleged injuries [a coffee table]


3. Consultant Paediatrician – Expert

The Judge provided permission for a consultant paediatrician to be instructed as an expert in these proceedings to undertake a paediatric overview of the records relating to the injuries allegedly sustained by the child. He had a significant medico-legal practice.

The Judge found that this expert’s approach fell below the standard one would normally expect of an expert witness.

The failings of this expert can be best summarised as follows:

  • Straying outside his expertise
    This expert strayed into the field of biomechanical engineering when considering causation of the alleged injury. He accepted that he had no training or experience in such field.
  • Forming a view despite a lack of evidence
    The injuries seen by the child protection hospital paediatrician some days after the alleged injury had been caused were unable to be timed and dated scientifically.

    This expert accepted in his oral evidence that the only photograph available of the alleged injury at the time of this expert’s assessment did not support the description in the report of the child protection hospital paediatrician and that description, in any event, was seriously lacking in detail.

    At the time of his report and his oral evidence, no body map had been produced and no photographic evidence of the object [a coffee table] onto which the child had been allegedly pushed, causing his injuries was available. [The Father at the request of the Judge subsequently produced a photograph of the coffee table].

    The Judge’s opinion of this expert’s evidence is as follows:

    “… I found it surprising that [this expert] was able to say that he agreed ‘that there were 3 lines of bruises and the cause of such bruising is blunt force trauma via a linear object’ and that he also agreed with [the child protection hospital consultant’s] professional opinion that the ‘the conclusion of non-accidental injury is most likely’. In my judgment, there is insufficient evidence concerning the alleged injuries to enable [either paediatrician] to come to that conclusion.” [Para 158]


4. Consultant Psychologist – Expert

Whilst the consultant psychologist instructed as an expert in these proceedings was criticised by the Judge it was not because of the standard of his assessment or the quality of his reports or oral evidence. In fact, it was entirely unrelated to his expertise and instead arose because of an email he sent to counsel representing Mother who had clearly caused this expert some annoyance by suggesting that parental alienation was his “hobby horse.” The expert subsequently emailed this counsel very shortly after concluding his evidence the word “muppet.”

The Judge determined that whilst his email to counsel required judicial condemnation it did not make his assessment unreliable.

The sending of that email was clearly an error of judgment and inappropriate and has resulted in this expert no longer being permitted to assist with this case. It is a lesson in the exercise of restraint!

Conclusion

Putting aside those experts in this case who were criticised for their standard of work, which was not specifically relevant to parental alienation, as a practitioner representing a client alleging parental alienation I was disappointed at the unwillingness of professionals to approach the case with an open mind. Indeed, as was determined by the Judge, the author of the section 37 report believed the child, which meant she disbelieved the allegations of parental alienation.

For any parent who finds himself or herself in the same position as this Father, seeking to overcome such prejudice is formidable, and at times, a soul-destroying task. This is made even more so with the removal of legal aid from such cases leaving parents in a position often having to represent themselves and dealing with law and procedure with which they are unknowledgeable and unfamiliar and with professionals who are unlikely to believe in them. Legal representation is essential in such cases and preferably by those experienced in this field.

My experience of cases involving parental alienation, highlighted by this case is that there needs to be a culture change among all those who work in the field of family law. There needs to be a greater understanding of what it involves and how it manifests itself. Currently, it would seem there is little or no training on the subject and thus it is hardly surprising there is such little understanding. There also needs to be an awareness of how this is likely to adversely impact on a child and their adult life and in particular, their own relationships and mental health, if unresolved and untreated.

In the year 2000 and following the case of Re: L (Contact: Domestic Violence); Re: V (Contact: Domestic Violence); Re: M (Contact: Domestic Violence; Re: H (Contact: Domestic Violence) [2000] 2FLR 334 (“Re L”), the landscape of Domestic Violence and how it was to be treated by the courts and practitioners changed dramatically. The Court of Appeal provided clear guidance

A key message from the judgment was that the courts, family lawyers and other agencies involved with families and the public need to be more aware of the issue of domestic violence and the effect on children of assaults, threats and verbal abuse of one parent by the other. From that decision, practice directions and family court rules evolved which further developed the court of appeal’s guidance.

In my view, parental alienation and the behaviour associated with it also needs a change in the landscape. Just as with domestic violence, allegations of this nature need to be treated seriously and considered at the earliest opportunity following the issue of proceedings and most importantly, professionals involved in this field need training.

Just as with domestic violence, there may be occasions when the allegations are unfounded but they should not be disregarded or dismissed out of hand. They require a prompt, fair investigation by the court.

We hear much about mental health awareness but I am of the view awareness is only a part of the issue causation is another part. Much mental health illness emanates from family relationships and the abuse children suffer within them. Parental alienation is a part of that and is another cause of child abuse. We owe it to the child, the family and society as a whole to treat such allegations seriously and which in my experience is currently not happening universally around the country.


June Venters QC

Read the Law Gazette Article

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