6 February 2018
Andrew McFarlane touched on this case in his keynote speech to the 2018 annual conference of NAGALRO, the Professional Association for Children's Guardians, Family Court Advisers and Independent Social Workers:
“The facts of Re J are sufficient to set the scene for today’s purposes. After a marriage lasting 19 years, the father moved from the family home in September 2014 leaving his wife and their three children aged 15, 13 and 8 years. The father was denied contact by the mother, who was granted a without notice non-molestation injunction. The father promptly applied for s 8 orders and made it clear that he totally denied the factual allegations that were made against him. Despite the fact that the Family Court was seized of these issues on an inter-party basis by the beginning of January 2015, no fact- finding hearing was ever conducted and the father has not seen any of his children since the day he left the house over three years ago.
In July 2015, nearly a year after the separation, rather than conduct (even at that late stage) a fact-finding hearing, the court directed that a report on the children’s welfare should be prepared by their NYAS guardian. When that was supplied, it demonstrated that the children had very deeply entrenched negative views about their father and that they were wholly against any contact with him. The judge proceeded on the basis that, because of the strength of the children’s views, a fact-finding determination was no longer necessary and he ultimately made ‘no contact’ orders at the conclusion of the case.
On appeal, whilst being highly critical of the failure to conduct a fact-finding hearing in the early part of 2015 and then determining interim contact in the light of any findings, the Court of Appeal [McFarlane and King LJ] accepted that it was now simply too late to reverse the effect of what had occurred and consider directing contact.
At the start of this address I indicated that I consider that there is much more of a link between these high-end private law disputes and adoption than might otherwise be appreciated. The link concerns the impact upon the relationship between the child and the absent parent.
The relationship that the father in the case of Re J had with his three children was, effectively, totally severed in September 2014 with, now, little hope that it may be resurrected in any way during the remainder of their childhood or beyond. On a scale, the impact of that state of affairs is not, in my view, un-akin to the impact generated by the making of an adoption order. Adoption orders are, rightly, regarded as the most Draconian orders that a family court, or indeed any court, can make. The adoption decision in every case is therefore afforded corresponding respect in terms of time, resources and judicial concern. Based on the evidence provided from the four recent cases that I have cited, I fear that the same cannot be said of potentially intractable contact cases.
No doubt judicial hearts may sink at the thought of a contested fact-finding – I know that mine has done so on more than one occasion – but the guidance in PD12J is both clear and correct in stating that, where such a hearing is necessary, it must be undertaken and undertaken very promptly in the early stages of proceedings. Not to do so simply stores up problems which become more and more difficult to unpick as the months, and years, go by. The interests of the children are not served and those who may be called upon to advise the court as to the children’s welfare, whether as CAFCASS officers or guardians, have no factual bedrock from which to work.
It is, in my view, unhelpful to look in every such case to see if it is possible to identify a formal label of “Parental Alienation Syndrome”. In such cases, that there has been ‘alienation’, with a small ‘A’, will normally be a given; it is that factor which will often render the case ‘intractable’. The existence of alienation of itself can only be damaging to a child. It must be grim to grow up having a profoundly negative view of one of your parents. In some cases such a negative view may be justified by the actions of that parent, but often life is not so black and white and a more nuanced, ordinary and tolerable view of both parents will have been justified had an imbalanced status quo as to contact not become established.”
He also referred to it in his speech to the 2018 Families Need Fathers conference.
21 February 2018
Judges: Andrew McFarlane and David Kitchin
Mother accused her own mother of parental alienation.
28 March 2018
Judge: Alison Russell
This is a follow up to [2017] EWFC 23, which was also heard by Alison Russell.
Russell was highly critical of the Anna Freud Centre and refused to order a transfer of residence from England to Sweden. This case follows on from [2017] EWFC 23.
Re M – A (A Child) [2018] EWCA Civ 896
25 April 2018
Judges: Peter Jackson, Nicholas Hamblen
PA v CK & Ors [2018] EWHC 2004 (Fam)
6 July 2018
Judge: Jonathan Cohen
Barristers (pro bono): Francesca Wiley and Rachel Gillman of 1 Garden Court Chambers
Family Law Hub: Father's appeal against a refusal to allow him direct contact with his daughter was dismissed.
27 July 2018
Judge: Anthony Hayden
Barrister for father: Luke Eaton of 1 Garden Court Chambers
Cross-examination of victim by litigant in person. Hayden allowed the father’s appeal that the case be re-heard, but asked the Government to resolve the problem of perpetrators interrogating victims in the family courts.
Incidentally, Anthony Hayden is the judge who said, in another widely reported case, “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife”.
31 July 2008
Judge: John O’Hara
Expert: Mark Berelowitz, Dr Leddy, Helena Stuart, Denise McCartan
C v D & Anor [2018] EWHC 3312 (Fam)
28 September 2018
Judge: Frances Judd
Family Law Hub: “The court agreed that parental responsibility should be removed from the father and that the mother could change the child's surname.”
RR v MM [2018] EWHC 3252 (Fam)
18 October 2018
Judge: Philip Moor
Barrister: Sarah Phillimore pro bono
“Refusal by Moor J of a father’s application for permission to appeal, made in long-running private law proceedings, against an order under s.91(14), dismissal of an application for recusal, and refusal to reinstate direct contact with the child.
Proceedings, brought by the father, had been ongoing since 2008, one year after the child's birth. There had been some early interim supervised contact. Findings were made in 2010 against the father of domestic abuse; the father's appeal against the findings was largely unsuccessful. Contact had stopped in 2011 and the court directed that there be a two-year gap before revisiting the matter, on the basis of the child's negative reaction to contact and an expert's assessment of the mother's entrenched opposition to it. An appeal against this decision was dismissed.
The father's renewed application in 2014 was refused following a Cafcass report which concluded that direct contact was not in the child's interests. The Court of Appeal heard and dismissed the father's appeal but noted concern as to the 'two year gap' strategy and the mother's attitude, and mooted that a change of residence may prove necessary in due course. The father then applied unsuccessfully in 2015 for psychological assessment of the mother. The appeal of that decision was dismissed after again being heard in full by the Court of Appeal, on the basis that the first instance judge had been entitled to conclude that resuming contact was now infeasible and that continued proceedings were not in the child's interests.
The subject of this appeal was the father's further application for contact, which he had asked in a 'private' letter to the court to be heard by a different judge. This did not happen and he then applied for the judge to recuse herself. This application was refused and a s.91(14) order was made for three years. The judge concluded she could not make a s.37 order as the child was not coming to any harm other than not being able to see his father. No direct contact was ordered.
Moor J refused permission to appeal. There was no reasonable prospect of demonstrating apparent bias on the part of the judge, merely because she had made repeated rulings against the father [25]; it was further incorrect to assert that applications for recusal should come before a judge other than the one in respect of whom recusal was sought [26]. The assertion that the father's right to privacy had been breached because the first instance judge had read a letter by the father addressed to the court as 'private and confidential' was deemed 'hopeless' [27]. The judge had not predetermined the matter and in fact had given a careful judgment [29]. The s.91(14) order was made properly in the circumstances [31]. The Court of Appeal and first instance judge had both been entitled to direct that no further expert evidence was to be permitted [32-33]. Finally, the hearing had in no way been unfair under Article 6 [34].”
19 October 2018
Judge: Clifford Bellamy
Barrister for father: June Venters QC (who gave evidence to the Work and Pensions Committee inquiry into child maintenance reform in 2011)
Expert witness: Darren Spooner
The judge found the mother and son’s allegations of domestic and child abuse to be false and accepted Darren Spooner’s diagnosis of parent alienation. The judge ordered a transfer of residence to the father.
June Venters’ analysis in Family Law Week and the Law Gazette, where she proposed the criminalisation of parental alienation.
Analysed by Adrienne Barnett of Brunel University in “A genealogy of hostility: parental alienation in England and Wales (2020).
Professional responses to 'parental alienation': research-informed practice, Julie Doughty, Nina Maxwell, Tom Slater, 2020:
“…the potential problem of confirmation bias in appointing a ‘specialist in parental alienation’, of which some English judges are becoming aware (Re D [2018].”
18 December 2018
District Judge Bailey, Stoke-on—Trent
Parental alienation “expert”: Miss X