Parental Alienation and Reform – Asking the Right Questions


It was pleasant to read Anthony Douglas, Chief Executive of CAFCASS, acknowledging that parental alienation was a form of child abuse in this week’s Telegraph. Pleasant… although being honest the main emotion was irritation, as I read an article which did little and said less. Catch up! Alienation is recognised… this isn’t news. If you want a news piece, ask what’s being done about it?

Parental alienation is rarely a disease which strikes without warning. It’s an administered poison, which eats away at the child’s view of the world. As with any poisoning, earlier diagnosis, intervention and prevention presents the best hope of cure. Failing this, the child gets more ill and future interventions become less likely to succeed. What we often see is the judicial ‘doctor’, who has had the child as his patient for months or years blame the parent for the poisoning while abrogating himself of relationship deaths by ignoring his failure to diagnose and treat. For a classic example, read this where the President of the Family Court does this himself.

Remember the poisoning scene in the film Sixth Sense… Anthony Douglas recognises that parents are putting bleach into their children’s drinks. Bravo. This rather begs the question of what he and the President of the Family Court are doing to improve outcomes for the affected children, having responsibility for their respective organisations and child welfare. We’re well past the days when the senior courts didn’t accept parental alienation as a factor in intractable contact disputes. There’s case law confirming it can cause significant harm to a child. Training courses within the British Psychological Society (BPS) and judgments recognising the court’s failures. Click the links… read them.

It should come as no surprise whatsoever that Anthony Douglas and Sir James Munby (President of the Family Court) know very well what the problems are. Perhaps the journalist should be asking them what steps they’re taking to improve case management and judicial training to help prevent such harm being caused to children? In fairness to Anthony Douglas, I’ve seen far more improvement in CAFCASS reports in recent years than I have in judicial case management in cases involving alienation. Those improvements though, aren’t universal.

In September 2015 I was asked to write a report by a charity setting out the problems in intractable contact dispute and parental alienation cases. I know Sir James Munby has it, charity representatives met him to discuss the contents. I understand there wasn’t much disagreement about the issues when the report was discussed. You can read the report yourself… here. The Telegraph’s reported idea to have a panel of experts advise the courts and propose more effective interventions isn’t a new thing. In my report, I made the same suggestion, proposing Dr Kirk Weir, Dr Mark Berelowitz and Dr Sue Whitcombe (Dr Whitcombe is currently running the BPS training courses on understanding, intervention and treatment of parental alienation).

In February 2016, a number of the problems my report listed were the subject of judicial acknowledgment in F (Children) [2015] EWCA Civ 1315. Be assured, the problems are known beyond Munby. How many years does it take to turn recognition of a problem to improvement in case management? Case law is all well and good, but unless the lower courts are aware of it, and the guidance it contains, what benefit? How many litigants-in-person know how to present it, if they’re even aware it exists themselves.

Sorry to say that the Telegraph’s article didn’t fill me with hope. It underlined to me that the problems are well know, but there’s a lack of capability, resource or motivation to address them. Perhaps the very structure of the Family Court and Family Justice system prevents professional management of such cases due to poor communication and training? Does individual judicial discretion prevent more professional process being accepted? Does convention trump welfare or is there another reason the same old tired mistakes are made again and again? These are questions I’d like to see posed in the Telegraph… and some answers too.


Brexit – Family Law Perspectives


My first thoughts on Brexit news today was sympathy for parents whose children have been removed to other European countries following leave to remove decisions. The decision last night will be causing them uncertainty and anxiety.

One of the the best EU regulations from a family law perspective  (or bureaucracy that was forced upon us as some would say), were the Brussels II Revised Regulations. Article 21 of those regulations make contact orders made in one EU country (excluding Denmark who opted out) enforceable in another EU member state. Will we lose those protections? Will a replacement to that agreement be made between the UK and EU? Will this protection be removed entirely, and will the parent facing the high cost of legal proceedings in the UK then face the daunting cost of starting again in a foreign jurisdiction with a UK order not worth the paper it’s written on? One can only hope this is not forgotten in the Brexit negotiations which follow. I wish I had the answers to give assurances, but no-one does nor will for some time.

Parents whose children are relocated to other EU states may face higher air fares (Europe saw the end of bi-lateral air service agreements); they’ll face travel insurance costs (while at the moment there are reciprocal agreements); and then there’s the loss of protected rights in terms of travel to other European countries. Will their children be able to return to the UK if they so decide when they reach adulthood? Maybe only if they have the requisite skills to meet an immigrant quota system. School choice and subject choice could become far more important for parents who remain in the UK. Will there be a right to involvement in those decisions? Will that right be enforceable in a foreign jurisdiction? Unlikely.

In terms of protections against international child abduction, we’ll stay part of the Hague Convention on the Civil Aspects of International Child Abduction, but I’ve no doubt that membership of the Brussels II Regulations gave British parents (and all European parents other than the Danish) greater protection. The Hague Convention as we all should know, is no guarantee of having your child returned.

I’ve no doubt that membership of Europe made it harder for the Tories to pursue their wish to extract the UK from the Human Rights Act (and EU Convention on Human Rights). It is the UK’s being subject to the European Court of Human Rights which freed Sir James Munby to insist on legal aid being given to two parents with learning difficulties who couldn’t afford legal representation, who faced their children being permanently removed from them by social workers, but had had their right to legal representation taken away by Government. They faced a Local Authority with a full legal team. Our judges could challenge the decision of Government on human rights’ grounds, because those rights were protected despite what was undeniably a democratic decision to strip those rights from two, vulnerable parents who lacked the capacity to conduct their own case. Democracy isn’t always a good thing or democratic decisions defensible. Europe at least gave a check and balance against human rights abuses. A chance for the man or woman in the street to stand up to large institutions and fight injustice.

I know some who view Brexit as a good thing. In terms of the microcosm of family law, it is not. My thoughts today are with the parents it affects, and who will be affected in the future.


Parenting Stereotypes and Alienation


A powerful talk by Dr Jennifer Hardman on parenting stereotypes and alienation, given at an independently organised TED talks event. Dr. Harman is an Associate Professor of Psychology at Colorado State University and is the Program Coordinator for the Applied Social & Health Psychology Program.

A number of interesting features for me.

  • Parenting stereotypes;
  • The importance of parenting time as a tool to address alienation;
  • Alienation as child abuse and domestic violence.

My thanks to JUMP for emailing this to me.


New Guidance on Psychologist Experts – Part 2


Rarely I write two articles on a single subject in one day (and certainly not this late at night). However, I’m genuinely enthused about this latest initiative by the Family Justice Council and British Psychological Society. It’s a matter I’ve been talking and writing about for the past two years.

Last year, I worked with Families Need Fathers making proposals for improvements in family law related to contact disputes and cases involving child alienation. These were presented to the President of the Family Court at a meeting last September. My belief (then and now) was that there should be greater collaboration between the courts and organisations such as the British Psychological Society to develop and share best practice to improve outcomes. It’s a belief which is clearly shared and worked upon by others and I thank them.

In 2014, Practice Direction 25B, ‘The Duties of an Expert’ was a welcome step forward, but there needed to be more done to ensure practice directions are followed and due diligence done when practice directions are at times ignored in court proceedings. That, I believe, is a matter for Family Justice Councils to pursue.

Best practice sharing, feedback mechanisms and agreed standards are essential tools in improving outcomes and introducing consistency into court proceedings. This becomes even more important amongst the chaos caused by court closures, cutbacks and fewer parties having representation.

Expert reports are variable in quality and the joy of this new initiative and the intentions behind it are to not only set appropriate standards for psychological assessments, but to introduce feedback mechanisms to improve standards in expert reporting. The guidance goes further in giving examples of what psychological assessments should include (see the image below… the example being for contact/residence disputes). Make sure you read it!

crdPoor quality assessments, and the appointment of practitioners lacking the requisite skills and/or experience causes delay (often months), the need for additional assessments (costing the parties thousands), and risks poor outcomes for families. Delay in itself makes it more difficult to resolve cases. Past research showed 20% of those involved in court work as experts lacked the necessary qualifications, and a further 20% lacked the necessary experience. I doubt enough people carry out due diligence when proposing or considering an expert.

To assist with due diligence, we have updated our own guide on Psychological Assessments which can be found in the Crisis Menu of our online guides. We have included:

  • A download version of the new Psychologists as Expert Witnesses in the Family Courts Guidance
  • Links to registers for psychologist practitioners.
  • Links to relevant registering bodies for child psychotherapy, systemic family therapy, and other therapist counsellors who may be considered for appropriate family court work as experts. Bear in mind Practice Direction 25B sets out that the term expert includes a reference to an expert team which can include ancillary workers (in addition to experts) who may be considered experts in their own field.
  • Links to professional conduct hearings and findings for each of these organisations.
  • A download version of Practice Direction 25B, which includes the standards to which all experts in family proceedings should adhere and all those involved with cases involving experts should be aware.

Guidance on Expert Witnesses in Family Proceedings


A guide has been announced today by Courts and Tribunal Judiciary for all stakeholders specific to the use of psychologists as expert witnesses. The guide provides discipline specific information in relation to regulation, codes of conduct, competencies, supervision/peer review and quality of service.

The guide will be added to our Psychological Assessments page and can be downloaded via the following link:

Psychologists as Expert Witnesses in the Family Courts

Standards, in respect of all expert witnesses were updated in 2014 via Practice Direction 25B and consideration of these should form part of due diligence for the appointment of experts in proceedings, not least to avoid proceedings being delayed and unnecessary costs to litigants.

Practice Direction 25B includes “Subject to any order made by the court, expert witnesses involved in family proceedings (involving children) in England and Wales, whatever their field of practice or country of origin, must comply with the standards.”

These are:

      1. The expert’s area of competence is appropriate to the issue(s) upon which the court has identified that an opinion is required, and relevant experience is evidenced in their CV.
      2. The expert has been active in the area of work or practice, (as a practitioner or an academic who is subject to peer appraisal), has sufficient experience of the issues relevant to the instant case, and is familiar with the breadth of current practice or opinion.
      3. The expert has working knowledge of the social, developmental, cultural norms and accepted legal principles applicable to the case presented at initial enquiry, and has the cultural competence skills to deal with the circumstances of the case.
      4. The expert is up-to-date with Continuing Professional Development appropriate to their discipline and expertise, and is in continued engagement with accepted supervisory mechanisms relevant to their practice.
      5. If the expert’s current professional practice is regulated by a UK statutory body (See Appendix 1) they are in possession of a current licence to practise or equivalent.
      6. If the expert’s area of professional practice is not subject to statutory registration (e.g. child psychotherapy, systemic family therapy, mediation, and experts in exclusively academic appointments) the expert should demonstrate appropriate qualifications and/ or registration with a relevant professional body on a case by case basis.  Registering bodies usually provide a code of conduct and professional standards and should be accredited by the Professional Standards Authority for Health and Social Care (See Appendix 2). If the expertise is academic in nature (e.g. regarding evidence of cultural influences) then no statutory registration is required (even if this includes direct contact or interviews with individuals) but consideration should be given to appropriate professional accountability.
      7. The expert is compliant with any necessary safeguarding requirements, information security expectations, and carries professional indemnity insurance.
      8. If the expert’s current professional practice is outside the UK they can demonstrate that they are compliant with the FJC ‘Guidelines for the instruction of medical experts from overseas in family cases’.
      9. The expert has undertaken appropriate training, updating or quality assurance activity – including actively seeking feedback from cases in which they have provided evidence- relevant to the role of expert in the family courts in England and Wales within the last year.
      10. The expert has a working knowledge of, and complies with, the requirements of Practice Directions relevant to providing reports for and giving evidence to the family courts in England and Wales. This includes compliance with the requirement to identify where their opinion on the instant case lies in relation to other accepted mainstream views and the overall spectrum of opinion in the UK.

Karen Woodall – BACP Sanction Compliance Notice Published

We make this announcement following an invitation from Karen Woodall’s solicitors to announce details of her compliance with the sanction made against her by the British Association for Counselling and Psychotherapy.

The details of the hearing, decision and sanction were published by the BACP in July 2015 with the decision of the Panel being “Accordingly, the Panel was unanimous in its decision that these findings amounted to professional malpractice on the grounds of recklessness and the provision of inadequate professional services in that the service for which Ms Woodall provided fell below the standard that would reasonably be expected of a practitioner exercising reasonable care and skill.”

Details of the complaint and decision of the BACP were linked with our original piece on this matter, also published in July 2015. The BACP removes details of hearings and decisions from their website once the sanctions set out by the Association have been complied with. The BACP then post a notice of compliance which is published for a minimum two month period.

The sanction set out by the BACP required Ms Woodall to write a submission which evidenced her immediate reflections on, learning from and understanding of the issues raised within the complaint. Additionally, she was required to attend a CPD course of a minimum of 1 day’s duration (the course to cover working within closely contracted and negotiated boundaries). Further to attendance on the course, Ms Woodall was to write a report demonstrating her learning.

In May 2016 the BACP posted a sanction compliance notice on their site announcing they were satisfied that the requirements of the sanction have been met. That notice can be viewed here.


Help: Non Molestation Orders and Without Notice Applications


Data from a Freedom of Information Act request for non-molestation order applications (in 2014) shows that of the 21,162 applications (included in the statistical returns) a little over 60% were made ‘without notice’ (12,769 applications).

Without Notice applications to the court involving claims of domestic violence often result in injunctive orders being made without the accused having had the opportunity to present their own evidence in defense at the time the order is made (the orders being made ‘ex-parte’ which means without the other party being present). Typically, those applications are for non-molestation orders and occupation orders.

These orders have serious implications and can impact upon the respondent’s family life, restrict their freedom of movement and carry a power of arrest if broken.

When such injunctive orders are granted, the applicant is then entitled to legal aid and professional representation. The accused is not. This gives the accuser advantage in future proceedings/hearings if the accused then seeks to challenge the making of the order or there are contested proceedings over arrangements for children.

As well as injunctive orders being made ‘ex-parte’, on occasion hearings are listed on short notice giving the accused little or no chance to prepare. Where orders are made ex-parte, the court is unlikely to have heard any evidence which challenges the allegations. In cases where there is genuine risk of violence to the applicant, there is good reason for the accused not being ‘tipped off’ in advance of the court making precautionary orders. Such caution however has its risks in that, when allegations are false, this can result in the court being a party to coercive control and the accuser having unfair advantage in future proceedings.

Such injustices do arise. In R v R (Family Court: Procedural Fairness) [2014] EWFC 48, Jackson J lists a catalogue of errors by the lower court, and gave comment (at paragraph 1(5)):

“The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.”

In that case, the court’s guard was clearly down. That case, sadly, was not exceptional.

There are procedural checks and balances which should mitigate risk. The accused should have a further hearing listed where there is the opportunity to defend themselves. They should be notified of, and have sight of all evidence which was put before the judge when the order was made. They should have the opportunity to file their own evidence. Sadly, such procedures are not always followed. This compounds the injustice caused by one party being represented while the accused is often not.

In B v A [2012] EWHC 3127 (Fam), Charles J states:

“11. Both Theis J and I (in B Borough Council v S) point out in restrained terms that the principles and  procedures in respect of without notice applications that are clearly established by authority are regularly not followed in the Family Division.

12. This case provides an example of this.  To my mind, this regular and flagrant failure by many practitioners and judges is contrary to the public interest.  I, and some of the other judges of the Division, try to bring about necessary and much needed changes when dealing with without notice applications (particularly in the Applications Court).  But sadly, this case is a clear demonstration that we have not succeeded and that a number of our colleagues do not take the same approach.  So the serious failings are endemic amongst many family practitioners and judges who have been family practitioners.”

The frustration held by some campaigning groups is acknowledged and shared among senior judiciary.

Difficulty for the unrepresented accused comes from a lack of knowledge as to whether the correct procedure has been followed by the court (and/or applicant and their legal representatives). This inevitably interferes with their defending against the order due to their ignorance of procedural irregularity. While instances of procedural unfairness/irregularity do result in successful appeal, a litigant-in-person is often oblivious to the grounds which may exist in their case. Not so much ‘ignorance is no defense’ but ‘ignorance prevents defense’.

Many of these cases are heard in the lower courts where knowledge of correct process can be lacking. Additionally, we see growing instances of complex cases being handed down to magistrates who lack the experience and training of more senior judges. Such occurrences are likely to become more common-place as a result of court closures, austerity and cuts. Unless there is radical change, or legal aid awarded to the accused as well as the accuser (highly unlikely in the current political climate), it is for the litigant-in-person, whether a plumber, cab driver, hairdresser or unemployed to get to grips with complex areas of law when unable to afford legal assistance. In such circumstances, it’s impossible to see how justice in England and Wales is compliant with the human rights act and a right to a fair hearing.

There has been an ‘explosion’ in the number of non-molestation orders being made by the court since legal aid was limited to cases involving domestic violence. The Daily Mail picked up on the subject of a series of articles we ran last year… see ‘Daily Mail: Huge Rise in DV Claims after Legal Aid cuts‘.

To help in these cases, we have a new section in our web site, under our Case Law Menu, entitled Without Notice And Non-Molestation Order Case Law. The purpose is to inform both sides involved in these proceedings as to the correct procedure which should be followed by both the court and applicant in respect of without notice applications for injunctive orders. We will be expanding upon this section in the coming weeks, and also providing a dedicated guide and support tools. In the meantime, we have also made reference in that section to rules related to applications for these types of order (made under Part IV of the Family Law Act 1996).

You may also wish to refer to our existing guides on Domestic Violence, Non Molestation Orders, Occupation Orders, Undertakings, False Allegations and our Occupation Order Case Law Menu.

We also recommend you pay particular attention to paragraphs 13 to 16 of KY v DD [2011] EWHC 1277 which is included in our new section.


New interim regulations related to domestic violence and evidence for legal aid


Evidence is required to help secure legal aid funding for victims of domestic violence in private family proceedings. Interim changes are currently being introduced to regulations which relate to this evidence, pending a final decision by the Government (so there may be further changes). These interim regulations include:

  • The time limit for the validity of evidence related to domestic violence being increased from two years to five years (changed on 25th April 2016);
  • A new category, ‘Financial Abuse’ is added (changed on 25th April 2016);
  • Violent offenders orders are included as an accepted form of evidence (changed on 25th April 2016);
  • Female genital mutilation protection orders are included as an accepted form of evidence (being introduced on 16th May 2016).

Changes are introduced via regulation 2(2) and 3 of the Civil Legal Aid (Procedure) (Amendment) Regulations 2016 concerning evidence which must be provided to help secure civil legal aid funding where domestic violence is alleged. The wording for the new regulations are provided below:

(2) For the purpose of paragraph (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—

(a) a relevant unspent conviction for a domestic violence offence;

(b) a relevant police caution for a domestic violence offence given within the sixty month period immediately preceding the date of the application for civil legal services;

(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;

(d) a relevant protective injunction which is in force or which was granted within the sixty month period immediately preceding the date of the application for civil legal services;

(e) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996(2) (or given in Scotland or Northern Ireland in place of a protective injunction)—

(i) by the individual (“B”) with whom the applicant for civil legal services (“A”) was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and
(ii) within the sixty month period immediately preceding the date of the application for civil legal services,

provided that a cross-undertaking was not given by A;

(ea) evidence that B is on relevant police bail for a domestic violence offence;

(eb) a relevant conviction for a domestic violence offence where B was convicted of that offence within the sixty month period immediately preceding the date of the application for civil legal services;

(f) a letter from any person who is a member of a multi-agency risk assessment conference confirming that—

(i) A was referred to the conference as a victim of domestic violence; and

(ii) the conference has, within the sixty month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;

(g) a copy of a finding of fact, made in proceedings in the United Kingdom within the sixty month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;

(h) a letter or report from a health professional who has access to the medical records of A confirming that that professional, or another health professional—

(i) has examined A in person within the sixty month period immediately preceding the date of the application for civil legal service; and

(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence;

(i) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the sixty month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);

(j) a letter or report from a domestic violence support organisation in the United Kingdom confirming—

(i) that within the sixty month period immediately preceding the date of the application for civil legal services, A had been accommodated in a refuge;

(ii) the dates on which A was admitted to and, where relevant, left the refuge; and

(iii) that A was admitted to the refuge because of allegations by A of domestic violence;

(k) a letter or report from a domestic violence support organisation in the United Kingdom confirming—

(i) that A was, within the sixty month period immediately preceding the date of the application for civil legal services, refused admission to a refuge, on account of there being insufficient accommodation available in the refuge; and
(ii) the date on which A was refused admission to the refuge;

(l) a letter or report from—

(i) the person to whom the referral described below was made;

(ii) the health professional who made the referral described below; or

(iii) a health professional who has access to the medical records of A,

confirming that there was, within the sixty month period immediately preceding the date of the application for civil legal services, a referral by a health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence;

(m) a relevant domestic violence protection notice issued under section 24 of the Crime and Security Act 2010(3), or a relevant domestic violence protection order made under section 28 of that Act, against B within the sixty month period immediately preceding the date of the application for civil legal services;

(n) evidence of a relevant court order binding over B in connection with a domestic violence offence, which is in force or which was granted within the sixty month period immediately preceding the date of application for civil legal services;

(o) evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters, where that evidence dates within the sixty month period immediately preceding the date of, or is dated on the date of, the application for civil legal services.”.

 (3) In regulation 33(3) (definitions)(4), in the definition of “protective injunction”, after sub-paragraph (i) insert—

 “(j) a female genital mutilation protection order under paragraph 1 or 18 of Schedule 2 to the Female Genital Mutilation Act 2003(5);

(k) a violent offender order within the meaning of section 98 of the Criminal Justice and Immigration Act 2008(6);”.



Courts don’t deal with perjury or enforce contact?


W v G [2015] EW Misc B47 (CC)

It is unusual to see judgments published by the County Court so this case may have escaped you (it did me and thank you to the person who tipped me off yesterday). The case concerns an intractable contact dispute made more complex by the subject children having a half‐sister who also lived with the mother who lives some distance from the father.

In earlier proceedings, the court had made an order for shared living arrangements as a result of the mother´s failure to promote the children´s relationship with the father or properly recognise his role in their lives. The mother was also referred to the Crown Prosecution Service by the judge in those earlier proceedings for having committed perjury. Continue reading Courts don’t deal with perjury or enforce contact?


MAAPP – The Multidisciplinary Agency App for Social Workers


In an age when resources and support are cut as a result of austerity, we welcome work done by individuals and organisations to help share information and best practice to improve outcomes for children. An underlying goal for us has been to put family law at people’s fingertips and empower others. MAAPP, the Multidisciplinary Agency Application, built by social workers for social workers, takes this concept into the social work profession and does so well.

The MAAPP site can be found at Continue reading MAAPP – The Multidisciplinary Agency App for Social Workers