Alienation, Strategies and Pessimism


There are strategies which aid in successful resolution of cases involving implacable hostility and children being cognitively manipulated to oppose contact (commonly referred to as parental alienation). While there is case law to support these strategies, they’re not rocket science (but just because they’re common-sense doesn’t mean they don’t sometimes need spelling out):

  • it is important to hear evidence on welfare matters at an early stage;
  • in cases where alienation is entrenched “it is essential that the court has professional evidence from an expert who has personal experience of working with alienated children”;
  • there needs to be early finding of fact concerning allegations;
  • the court must look at a child’s ascertainable wishes and feelings and consider whether they are rational and proportionate (and if not, consider why not);
  • judicial continuity is important;
  • a review and monitoring of strategies for the resumption of contact is important where the court has reason to suspect parental engagement is uncertain;
  • the longer it takes to establish contact, the more likely it is that positions will entrench and the more difficult it becomes to get contact (re)started – contact needs to be restarted early;
  • the court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems;
  • if therapeutic interventions and/or the staged reintroduction of contact are ordered, there should be a mechanism in place for matters to return swiftly to court if these strategies fail and/or there is non-compliance;
  • that therapists need to have the requisite expertise in respect of working with alienated children;
  • where an implacably hostile parent obstructs the court’s strategy, the court must warn of consequences and see through those consequences if non-compliance continues.

Where the above steps are not taken, cases become more likely to fail. When the court fails to introduce a strategy for addressing the alienating parent’s behaviour, attempts at reintroducing contact and/or therapy become nigh on impossible.

The recent case, Re Q (A Child) [2015] EWCA Civ 991

There has been a deal of negativity this month about this case. It’s one where matters have been in court for years with little progress, and a final order which has received criticism.

It’s apparent that part of the delay in proceedings stems from false allegations, a failure by the parents to agree on who the therapist should be (ordered in 2012), and delays caused by the parents’ failure to attend more than one session of joint therapeutic mediation (in 2013). Looking at the time delays, it’s hard not to suspect there were failures in case management or question whether the court took a sufficiently robust approach early in proceedings. That said, it’s conjecture without sight of the full history or knowledge of each of the steps the court did take (the judgment refers to there having been many attempts).

While social media abounds with posts that proceedings shouldn’t have concluded before contact was re-established, it is worth noting Ryder LJ’s comments at the permission to appeal hearing that matters can be returned (swiftly) to court if therapy fails. The therapists recommended that proceedings needed to halt during therapy. The Guardian too made submissions that “the order was effectively not final, contemplating, as it did, the possible resumption of litigation in future.”

The reality of the situation is that the child has been left subject to what is accepted as significant emotional harm caused by the mother’s implacable hostility toward the father and the court’s strategies so far have been ineffective. More information in the published judgment about what other steps had been tried would help there be more informed discussion, and personally I’m left wondering (among other things) why it took three years to start therapy (delays which more effective monitoring, timetabling and conditional orders couldn’t have addressed) and what steps the court took in respect of addressing the mother’s alienating behaviour.

As with the case H-B [2015] EWCA Civ 389, I’m left with a sense of disquiet when appellate judgments are bereft of objective criticism concerning case management when proceedings have dragged on for years.

Addressing some of the comments in social media

Comments that you can’t find justice in the family court and that it’s futile to use courts to resolve disputes are wrong. Outcomes aren’t guaranteed. Your chances increase when the arrangements you propose are reasonable, when you act reasonably, and are active in recommending strategies for the court to consider if contact has broken down and/or is opposed. Your prospects diminish when you are unreasonable, enter court without preparation and lack objective advice. In some cases, there are bad outcomes for a variety of reasons. In many, there are not. Perhaps the only thing more tragic than a worthy case lost is one not argued which might have been won. Guarantees of outcome (whether negative or positive) are rarely wise even when you have specific case details. Made in general terms, frankly, it’s madness.

As for there being no winners in intractable contact disputes, the parent and child previously denied contact do win when relationships are restored and repaired. The child wins when alienation stops. Mediation is a wonderful tool when both parents engage. In absence of that engagement, the court is a necessity (since the time of Solomon and before) and must sometimes wield both the carrot and the stick as it takes on the role of parent to adults who at times need telling to behave. In 2000 years, human behaviour hasn’t changed and isn’t likely to soon.