In Part 1 of this blog post, we provided an update on policy and practice regarding issues of parental alienation.

Re D [2018] EWFC B64 is a very lengthy (64 pages) fact-finding judgment by HHJ Clifford Bellamy in Chesterfield Family Court, delivered on 19 October. As well as a detailed analysis of the evidence in the context of claims of alienation, the judgment is notable in recording some unusual (and quite unhelpful) practice by some of the professional and expert witnesses.

Background to the case

D is now aged 13. Court proceedings between his parents, about who he should live with, have been ongoing since 2008, with a four-year break between 2012 and 2016. That period followed an unsuccessful application by D’s mother for leave to appeal against a residence order in favour of the father. Contact between D and his mother was, however, fairly regular, in accordance with earlier orders.

Late in 2016, D began to spend more time with his mother, for successive days, with the father’s agreement. However, in November 2016, D’s school made a child protection referral to local authority children’s services because D was telling  professionals that he was frightened of his father and did not want to return to the father’s  home. From that time, while the dispute between the parents returned to court, D lived mainly with his mother, having contact with this father. D was made a party to the proceedings under Family Procedure Rules r 16.4 and had been allocated a Cafcass guardian to convey his views to the court.

Decision

There are very many pages in the judgment describing the more recent history and the evidence presented to the court, which although essential to the court’s conclusions on the facts, we are not going to attempt to summarise. The points we would highlight are:

1. This judgment is the conclusion of a fact-finding hearing, not a court order about D’s arrangements. These are yet to be agreed/decided.

2. The judge makes two very important observations in his closing paragraphs [260-261]:

Neither of these parents is entitled to legal aid. Both are out of scope financially. The father told me that he has spent in excess of £200,000 on this litigation since 2008. The mother has spent over £120,000. That is an eyewatering amount of money to spend in a battle to win the heart and mind of a child. These parents now need to invest their resources in trying to undo the immense harm that has been caused to this very likeable young man. They need to do that in partnership. D needs to see them working together for his best interests. It is clear that he has seen very little of that in the past.

Given D’s age and the fact that the process of alienation has now gone on for some two years, repairing the damage caused is likely to prove challenging in the extreme. I doubt the prospects of success are good though I have no doubt that a serious attempt must be made. It is to that issue that attention must now be turned.

3. The matters on which HHJ Bellamy was making a determination on the facts were:

• The Cafcass guardian asked the court to make a finding that the father had abused D.
• The father asked for a finding that D’s mother had alienated D from him.

With regard to first of these, it was the guardian who had been asked to submit a ‘schedule of findings’ for the judge to consider, because the mother would not agree to do this.

4. After oral evidence from both parents and the father’s partner, D himself gave evidence to HHJ Bellamy in court, with the assistance of an intermediary. The guardian and the mother had opposed D giving evidence but the judge concluded that he should, with assistance.

5. The decisions made in the fact-finding were (a) that the guardian had failed to prove the father had abused D, as itemised in the schedule and (b) the mother had alienated D from his father because she had always wanted D to live with her.

Comment

HHJ Bellamy made several observations about what had gone wrong with the case. One of these was that it was highly regrettable that there had been no early finding of fact, emphasised as essential in recent case law and the Cardiff University research review. Another was that the court had no information about the mother’s partner.

Although the judge applied recent publicly available research (the review by Cardiff University) and guidance on good practice (the Cafcass CIAF) to help inform his conclusions, it appears that the lawyers representing the parties were relying on surprisingly old commentary on parental alienation. The mother’s barrister, Mr Hadden produced:

‘an article published by Carol S Bruch in 2001, Parental alienation syndrome and parental alienation: getting it wrong in child custody cases, in which the author systematically demolishes Gardner’s approach, which she refers to as ‘junk science’. For my part I have no difficulty in accepting Bruch’s criticisms of Gardner’s work in that area. That does not, though, diminish the very real concerns about the problem of alienation in general and parental alienation in particular.’ [para 167]

It’s not possible for us to examine the evidence base drawn on by the expert witness, Darren Spooner, as, of course, his report is not published.

Overall, the court (and the family) does not seem to have been well served by expert evidence in this case. The parties were given permission jointly to instruct Mr Spooner, a clinical psychologist, to undertake an assessment of D and of both parents. About an hour after cross examination in court by Mr Hadden had finished, Mr Spooner sent Mr Hadden a one-word email: ‘Muppet’. Mr Hadden showed this email to the judge, who describes this cross examination as having accused Mr Spooner of being ‘blinkered, rigid and dogmatic’ and riding parental alienation as his ‘hobbyhorse’, to which the judge assumes ‘muppet’ was a reaction.

Although HHJ Bellamy commented that the email was gratuitous and unprofessional, he concluded that Mr Spooner’s evidence should not be discounted; that would have created unnecessary delay while a new expert was agreed, met the parties, and did the report. Mr Spooner was not a dogmatic or unreliable expert to the extent that meant his opinion about D and the family should be dismissed. So, neither the flaws in Gardner’s original concept of alienation, nor the criticism of Mr Spooner, overrode the evidence available to the court of the mother’s alienating behaviour.

However, the judge enquired of Mr Spooner:

How do you make a 13-year-old, even if I were persuaded that the 13-year-old should live with his father, how do you actually make that happen as the judge? It is easy if he is a seven-year [old].

Mr Spooner: Yes I agree, your Honour, and I agree that such a move is potentially fraught, but what the science is crystal clear about is that leaving a child in the care of an alienating parent just perpetuates harm and therefore an attempt to rescue the child from that situation is better than leave the child there.’ [para 198]

It is not our understanding that any crystal clear science exists about the impact on children of alienation or of being moved to live elsewhere

Of the social worker, the judge said:

she has experience of dealing with other cases in which parental alienation was alleged, taking her evidence as a whole I am doubtful that she has any significant experience or expertise in this particular area. She accepted that she has not undertaken any recent (within the last ten years) training courses on this topic [para 208].

Furthermore,

‘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.’ [para 214]

The evidence from two paediatricians was also unsatisfactory. Dr G, the community paediatrician, said that she observed marks on the back of D’s right shoulder but her description of what she saw was poor and of little forensic value. (D had stated that his father had pushed him backwards, causing him to knock his shoulder on a coffee table.) An independent paediatrican, Dr Austin, was asked only to give a view on a photograph of D’s shoulder, but the photographs Dr G took did not comply with Royal College of Paediatrics and Child Health guidance.

The judge did, however, find the Cafcass CIAF helpful in evaluating D’s evidence and that of the parents and the father’s partner.

Conclusion

This is not a case of a father alleging ‘parental alienation’ as a knee-jerk response to allegations of abuse toward the mother, but one where the evidence does point to alienating behaviour by the mother. It is a fact-finding hearing at family court level and fits with the President’s guidance on the type of case that should routinely be sent to BAILII. However, although such decisions are being made all over the country, it is very unusual for a judge to take the trouble to publish one. Furthermore, the particular nature of the relationships in this family, and the problems with some witnesses, mean there are limits on how much it can help us understand what courts are doing, in general, about using the CIAF and/or research, or how often they hear directly from the child. We hope that more judgments might be made available in future, so that a fuller picture might be possible.