Re H-B [2015] EWCA Civ 389 – Disagreeing with Black LJ and Munby

It’s rare that I disagree with a judgment from the President of the Family Court or Lady Justice Black. This however is one such occasion where I feel their judgment is wide of the mark. There are some fundamental failures in the management of this parental alienation case.

The case details are depressingly common:

an incident happens, gets exaggerated;
friction between children and a new partner, children torn by loyalty, resident parent stirs the soup (usually due to jealousy);
then a mountain of false allegations are made;
the children are alienated by one parent’s manipulation;
the non-resident parent does the odd stupid thing which doesn’t help;
the courts fail in case management;
there is a failure to restart contact quickly (supervised, to also ascertain any inconsistency between the children’s expressed and ascertainable wishes), either due to delays in fact finding, the resident parent’s opposition or case management (or a mix of all three);
the resident parent fails in their responsibility to exercise parental control and promote contact;
therapy is undermined by the court having failed to address the issue of the parent’s ongoing alienation;
matters drift;
judges wring hands and make apologetic statements that too much time has passed and the situation is unrecoverable.

What a shame that the likes of Mrs Justice Parker and Lord Justice McFarlane’s more progressive approaches were not echoed in this case. Parker J takes a firm grip of a case. She brooks no nonsense, and will knock heads together when required.

The History

Below we briefly detail the history of the case:

The children had contact with the father from 2005 to 2008;
In June 2008, the father’s new partner pushed one of the children onto the sofa during an argument;
The mother made an application for residence, and the father an application for contact.
There was a hearing in February 2009, which considered the June 2008 incident.
Due to the children’s opposition to contact, direct contact wasn’t instigated in the interim;
There appears to have been a Guardian appointed in early 2009 (good!);
Dr Gay, child and adolescent psychiatrist was appointed, whose opinion was the children were being negatively influenced and who recommended counseling;
The case was heard first by HHJ Tyzack QC and then HHJ Neligan (what about judicial continuity… something particularly important in intractable contact disputes which various authorities support?);
The case then went from HHJ Neligan back to HH Tyzack QC;
The counselling was slow to be organised. It isn’t clear if the Guardian raised the problems of the slow start to organising counseling or asking for urgent directions to address this (which we would hope for);
Therapy finally started in September 2009;
Fresh (false) allegations were made by the children in February 2010 which halted therapy (involving sexual abuse by the father);
A third judge, Judge Wildblood, appears to have become involved;
A core assessment undertaken by social services concluded the mother was the source of the children’s allegations;
Back to Judge Neligan for directions in June 2010 with a full hearing listed before Judge Wildblood in October 2010 (whatever did happen to judicial continuity?);
The father’s request that Dr Kirk Weir provide a report regarding progressing contact was rejected in favour of Dr Gay;
In August 2010, both the Children’s Guardian and the psychiatrist, Dr Gay, recommended therapy restart.
Judge Wildblood refused to have therapy restart immediately commenting that “it can be highly damaging for children to receive therapy on the basis that allegations are true when they are not.” So there was another three month delay until a finding of fact hearing in December 2010 could consider the fresh allegations;
At that hearing, in summary, Judge Wildblood rejected as untrue or exaggerated much of what the mother alleged against the father, as well as the allegations made by the girls. However he did criticise the father for acting unwisely in a number of respects;
Despite having heard from Dr Gay, the social worker and the therapist, the judge was unwilling to act without hearing from the Guardian and said that he would be “very surprised if anything could be achieved without very skilled expert advice”. He therefore listed the case for further directions after Christmas and a further hearing of importance took place in September 2011… some 21 months after matters had first come to court;
A further report from Dr Gay said the children were not ready for direct contact and therapy was needed first. Judge Wildblood found that the children be made aware of the court’s findings in respect of the false allegations made against the father;
The judge thought indirect contact was an important way forward (something we’d disagree with and we explain why later on);
More negative comments were made about the father’s acting inappopriately by writing in a card to the girls “see you soon”, but we see nothing in the CoA judgment in respect of the mother having lied in court, raised and prompted the children to raise false allegations of sexual assault and physical battery;
Therapy for the girls finally started in March 2012 and ended after four sessions;
The father made a further application in November 2012;
More directions hearings ensued, a new Guardian was appointment, and there was a hearing to consider the substantive part of the father’s application listed for September 2013. The father did not attend as he had not been able to secure legal representation and had asked for an adjournment. I don’t think it unreasonable that in a case with this level of complexity, experienced counsel was needed!;
The matter of expert evidence and involvement was raised, but the CoA considers that no party (including counsel for the Guardian?) pushed the matter (should they have to, when the court can make any appropriate order in the children’s best interests);
The judge however concluded that “the girls were now entrenched in their fierce hostility towards the father and his family. Everything had been tried and there were no further suggestions from any quarter as to how progress could be made. He took the view that, after such lengthy litigation, the girls needed to know that the controversy was at an end and be permitted to pursue their education without constantly being the subject of proceedings” and yet again, indirect contact via post card was ordered.
The father then appealed, and Ryder passed it back to Wildwood with the suggestion that specialist mediation be considered.
Matters then dribbled on for months more while attempts were made to set up mediation, which (to our mind not unsurprisingly given the case history) failed.
A further appeal was was made by the father.

The Judgment on Final Appeal

In essence, the judgment on appeal is that it’s not the court’s fault, there is no failure in case management, the parents are entirely to blame, hindsight is a wonderful thing and what can be done?

Lord Justice Vos comments “I was surprised [really?] that counsel for the mother submitted that this court should refuse an order for direct contact with the father on the grounds that J and K would not attend any such contact in compliance with such an order. It is part of the mother’s parental responsibility to do all in her power to persuade her children to develop good relationships with their father, because that is in their best interests. It is quite unacceptable for the mother to accept, let alone promote, J and K’s apparently entrenched opposition to contact with the father and his family. I very much hope that the mother will, once she has digested the judgments of this court, change her approach; that would, I am sure, go a long way towards ameliorating the emotional harm that J and K are suffering or will otherwise suffer.”

Given the mother’s behaviour throughout proceedings, her stance should come as no surprise at all! Despite the noble Lord Justice saying it is unacceptable, it seems that the court has accepted her unreasonable position since proceedings began. It is the very lack of strategy in this regard which underlies the abject failure which has left the children unprotected from and subject to harm.

Why did the father need to seek a return to court once therapy broke down? Surely there should have been a review hearing listed. Shouldn’t the Children’s Guardian have had continued oversight as the therapy commenced, and returned matters back to court when therapy broke down? What is the point of involving a Guardian if matters are then left to the father?

Indirect Contact

It is perhaps worth reminding ourselves of Mrs Justice Bracewell’s words in V v V [2004] EWHC 1215 where she considers indirect contact to be the “worst of options in addressing intractable cases“. Her sentiments predated the new powers afforded to the court by the Children and Adoption Act 2006, which introduced contact activity directions into the Children Act 1989.

Intractable Contact and Alienation Cases

One significant failure in this case, to my mind, was at the hearing in February 2009 and the decision not to order at least supervised contact immediately. Once the psychological report found the mother was unsupportive and/or held to be the source of the alienation she needed firmer handling. The court should not be shy in telling them they must change their behaviour, with the consequences explained if they don’t:

Those consequences can include:

Community Service;
Attendance at PiPs (a weak option if the parent is particularly intransigent as the mother appears);
Suspension of their residence order;
Placing the children in temporary foster care to remove them from the alienating parent’s influence;
Imprisonment.

The court is no longer powerless to address such matters, but we can see little evidence in the Court of Appeal judgment of the court getting to grips with this at all.

Such steps DO happen in cases, which is why I’m not picking them out of the air. Invariably, they are successful in my experience, but where the alienating parent’s behaviour is not addressed, the court ends up sticking a finger in a leaking bucket and ignoring the holes on the other side. Little wonder that the bucket runs dry, as it did in this case.

Once it was clearly established, as it was in 2010, that the mother was the source of the children’s opposition to contact, firm warnings followed by sanctions should have followed, especially after the children’s therapy broke down.

Mrs Justice Parker’s words echo in my ears from the case H (Children) [2014] EWCA Civ 733:

“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.”

and

“74. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.”

Disagreeing with Munby

Sir James says in judgment “With all respect to those who might seek to contend otherwise, the stark truth is that responsibility for the deeply saddening and deeply worrying situation in which J and K now find themselves is shared by their parents and by no-one else.”

The reason for matters coming to court, and for the continued problems during proceedings is in large part due to the parents. The failure to come to grips with them is, in good part, the court’s.

Yes, the step-mother shouldn’t have pushed the child. True, the father shouldn’t have deluged his children with phone calls when he was missing them. Against this is weighed the mother’s having alienated the children, encouraged false allegations of the father beating the children and sexually assaulting them, and having committed perjury. Her having obstructed contact and refused to engage with CAFCASS. Is it fair to hold both parents ‘equally‘ to blame and then say it’s up to them to sort this out themselves? Is it right for the court to essentially say ‘we’re leaving the children subject to this abuse‘, because have no doubt, that is what they are saying!

The court, like the parents, has a responsibility to the children’s welfare. Indeed, it is the court’s paramount consideration (or should be) once proceedings commence. Further, there is a duty laid upon it to be mindful that ‘time is critical in a child’s life‘. The court is granted powers to make any appropriate order… not just ones which parents apply for. Should a judge be more expert than a litigant-in-person in handling alienation and proposing remedies? I don’t think that an unreasonable assumption!

One other matter needs pointing out to Sir James. The timetable for the case management in this case is ridiculous. I accept it’s not unusual, but it’s ridiculous nonetheless. If the system isn’t fit for purpose in respect of timetable management (especially when alienation can become quickly entrenched), then some blame, surely, must rest on the shoulders of the judiciary themselves. I accept resourcing is an issue for the court, but then Munby should be critical of the Ministry of Justice, and not simply be placing the full weight of blame on the parents alone, and abrogating personal responsibility as President.

Munby’s Shock Warning

I sometimes hear parents say they want their children to read case paperwork to learn what a bitch the mother was, or what a bastard the father was. My stock reply is “Don’t you love them?” Yes! “Well why would you wish to hurt them?” Involving children, even as adults, in their parents’ disputes is extremely damaging, regardless of the sense of justice the parent might feel they achieve.

At paragraph 80, Munby says “Sooner or later, and it may be much sooner than the mother believes or would wish, the children will come to discover the full story of their parents’ failures. Sooner or later, and it may be much sooner than the mother believes or would wish, the children will demand to see the court papers and to read the judgments.” This may be true, but the courts too have left the children in this intolerable position.

Munby also says at paragraph “There are occasions, though I hope that the introduction in 2014 of the Child Arrangements Programme will make this increasingly a thing of the past, when a parent can truly say that they have been failed by the family justice system.” Such were also the hopes, dreams and aspirations when the Children and Adoption Act came into force.

I can assure Sir James that there are still cases where, unless matters are very firmly raised in argument which requires detailed knowledge of case law which escapes most litigants-in-person, the court fails to implement any robust strategy to deal with alienation. As a friend of mine says, you don’t get a car running again by giving it a new bonnet.

A final point… parents do ill-advised things all the time. It’s part of being human. In an intact family, it’s just a part of normal life. When parents are separated, such things can be blown out of all proportion. When one parent seeks to use such incidents to alienate the children, that toxicity can cause the children life long problems. It’s child abuse and a form of domestic violence. Isn’t it time the courts and society routinely treated it as such? In fairness, some judges do, but it’s a lottery, and Munby and Black’s findings in this appeal do nothing to improve prospects for children caught up in this maelstrom.

Further reading

If you wish, you can read the judgment via the following links:

For somewhat more useful case law, please refer to our libraries and guide below:

The following guides may also help you:

There’s also our quiz which includes, as a question, steps the court may consider in addressing parental alienation…

Intractable Contact Dispute Quiz