This is a guest post by Madeleine Whelan. Madeleine is a family law barrister at 14 Grays Inn Square Chambers. She co-hosts the family law podcast, Professionally Embarassing, and tweets as @Maddie__Whelan2

X, Y and Z (Children: Agreed Transfer of Residence) [2021] EWFC 18

It is not uncommon to hear the phrase “parental alienation” in family courts in England and Wales. It is a term used to describe all manner of sins, ranging from minor parenting disputes to broad, unmitigated emotional and psychological harm to children. There has been much, and continues to be much, use of the phrase in discussions around the various issues facing the family courts and the appropriateness of the judicial remedies available to counteract it.

It was against this background that a judgment was quietly published on 26 February 2021, which totals some 245 paragraphs, carefully considered in the High Court, dealing with a severe case of what would be considered “parental alienation”. In my view, it is an important and helpful judgment to allow lay people, and users of the family courts, to understand exactly how the court is equipped, or not, to solve complex emotional battles between parents. It concerns three children, X, Y and Z, aged 12, 10 and 8 respectively. The parents of the children were previously married and had divorced; what followed was a long and complex set of family proceedings which began in March 2015 and concluded, finally, in February 2021. These children had therefore, in the case of Y and Z, been in litigation for more than half of their lives.

The case makes extremely distressing reading in relation to the level and extent of alienation perpetrated by the father as against the mother, which includes the parties’ 12-year-old daughter, X, allegedly saying the following things to her mother at a contact handover:

I said hello to X and asked her to please come out of the car. She stated the following whilst crying.

• She hated me, that she did not want to see me. That daddy said it was her choice to see me or not. It was not for the judge to make the decision.
• She did not want me in her life, Daddy had other women who could do the jobs a mummy did, like his friends and granny. She did not need me. 
• She wanted nothing to do with me, I was to leave her alone forever. 
• I had thrown her father out of the house and told her he had gone to Australia. That I had tried to replace him. 
• I was an evil witch and should not be around children. 
• I had hit Z a lot around the head with a bed post. 
• I had not seen them for four years and that she had brought Z up. She knew Z better than me, that I did not know any of them. 
• The judge did not know what she was talking about, she was being bribed. 
• She did not need her maternal family, she had all the family she needed. 
• Nobody understood her like daddy. All she needed was her daddy.

This is compounded by the father’s behaviour during the older child’s limited contact with her mother, where the father would continually text and call his daughter causing her to emotionally separate from her mother and fail to engage with the contact. The court does find that the mother caused the children harm during an incident in August 2018 where she was intoxicated and neglected the children’s needs, precipitating the involvement of the police and the local authority and that this undoubtedly caused the children considerable upset. Nonetheless, the events since that incident have been destructive for the children, such that the court finds they have unequivocally been alienated by their father, most significantly X, the oldest child. In fact, the alienation is so great that the court considers it the primary problem in this case, despite the previous history with the mother, as follows:

“X appears to have been severely affected by alienation, in that she is rejecting of M and the maternal family…It is well documented that the children suffered previous harm in M’s care, including neglect of their basic needs and being physically hurt when she was intoxicated with alcohol and suffering from poor mental health in 2016 and 2018. That was confirmed in the local authority assessment completed in 2018. However, the guardian evaluates M’s alcohol use as a static risk factor and observes that she accepted she is an alcoholic during the fact-finding hearing. She knows she must abstain from alcohol and there is no evidence to suggest that she has relapsed since these proceedings have been underway”

“The guardian rightly stresses that this is not to say that the children have no memories of what happened with their mother in the past (albeit that M says many of these memories are distorted), but it is the harm caused by the established alienation that must not be ignored.”

And thus, the court is tasked with solving this impasse. The mother seeks for all three children to move to her care (known as ‘transfer of residence’) whilst the father initially sought for the children to remain living with him and for the contact with their mother to build back up to shared care. It would appear, on the face of it, that since the father has been found to have perpetrated such significant harm on the children, the court must remove them from his care, but of course this is balanced against the impact on the children of such a move if it is not handled extremely sensitively. Essentially, without the full engagement, reflection and commitment of both parents, any plans for the children would be catastrophic and the court would essentially be hamstrung, having identified harm but being in no position to remedy it. The court employed one of the most successful tools at its disposal to assist with this case – the instruction of experts. In this case, the ongoing help of Dr Berelowitz, a child and adolescent psychiatrist at the Royal Free Hospital. Dr Berelowitz was keenly involved for many months with the case, which allowed the court to understand the emotional and psychological dynamics between the family in a way that would be otherwise undoubtedly murky. It is clear from the judgment just how valuable these experts are, most notably, the judge highlights as follows:

“Dr Berelowitz is of the opinion that the degree of alienation is such and the stakes are so high for the parents and the children that the range of effective solutions is now limited. He is also refreshingly frank when he says it is important to be clear that within his wider professional field there is little research and little agreement about what would constitute the best way forward at such a time. To the best of his knowledge there is no good quality information available about the outcomes of particular interventions and/or about the outcome of not intervening”.

It is entirely right to say that the academic information available as to (i) the remedies available in extreme cases of alienation and (ii) the likelihood of success of any available remedy is woeful. The court is, to a large and acknowledged extent, feeling in the dark for the answer, for which a reliance on experts is crucial. Pausing there, it is worth highlighting that the full judgment in this matter contains reference to the instruction of an ISW who had to be discharged when it became clear that they did not accept the court’s findings and differed with the court on the finding that the father had alienated the children. This highlights one of the difficult features of emotional manipulation cases and managing its effects: it affects everybody in different ways and professionals can be just as vulnerable to reinforcing the alienation as the children. Further, a counsellor who was assisting one of the children also expressed belief in the veracity of the child’s allegations about her mother, despite the court’s findings, and began reinforcing those views during their sessions (Dr Berelowitz was clear this was not a criticism, merely an accepted drawback in alienation cases). It is very difficult, much like holding water in one’s cupped hands, to find a consistent view and understanding of the psychological abuse precipitant on alienation. Further, it is acted on by judges, who presumably also remain fallible to its pitfalls. Unlike more ‘traditional’ forms of abuse, it is very difficult to create a uniform view – in this case, the three children had all been affected in different ways by the ongoing conflict between their parents and meant that the court had to come up with different strategies to ensure protection for each child. Further, and perhaps most pertinently, the solution for alienation relies on the adults to listen, reflect and change – this is no mean feat for parents who have been in and out of family courts for half a decade and whose views undoubtedly become more entrenched the longer the adversarial process persists.

And so, what to do? The court sets out that there were four realistic options for this family as follows:

1. All the children continue to live with F
2. A shared care arrangement for all three children (50:50 split)
3. All children transferring to live with M
4. Splitting the children so that Y and Z move to their mother, whilst X remains with her father

Ultimately, the decision was taken out of the court’s hands as the father’s position changed part-way through the final hearing such that he accepted that the children should all move to the care of their mother. It was communicated to the court that the father had had a ‘wake-up call’ during the final hearing and accepted he had harmed the children and wished to make things right. The court endorsed this and the judgment ends with the information that the transition was managed well and appears to be positive.

There is further comment from the court and Dr Berelowitz about just how little empirical evidence there is about alienation and success of any proposed ‘remedy’, with Dr Berelowitz informing the court:

“Dr Berelowitz was asked how the children would each be likely to respond to an order for transfer of residence. He advised that there is no data available from any source on outcomes of change of residence. He could speak anecdotally of the cases with which he has been involved, which he thinks are about 20, and he said that in all of those cases all of the children settled more readily than he feared they might. The one case where it did not work was a case in which he had not been involved from the outset. That was a case of the most extreme alienation that he had come across where the child had no contact with their father for five years. In another case where he knows that the transfer did not work that was due to undermining by the other parent. In that case there were secret telephones and secret meetings at school and a phone was even found under the child’s pillow.”

So the answer is there – on the pages of a recent judgment and echoed by the expert – we need more transparency. We need studies, data and numbers to investigate and show whether the remedies the court adopts (which could include separating sibling groups and removing children from parents with no state intervention) actually work. In this case, it seems clear that the key factor was the last-minute, final, commitment of the father to the plan, but it would remain untested after so many years of conflict and it is a rare beast indeed for a parent in alienation proceedings to change their mind so fully. Often, remedies are forceful, emotionally fraught and can be traumatic for the children (for more on this see recent Channel 4 Dispatches: Torn Apart Family Court Uncovered); they should obviously be avoided, but is there an adequate alternative? Without more judgments like this one, and more case studies into what does work in high conflict emotional abuse cases, it is very unlikely the court can improve its established approach.

[Editing note: See also this post regarding lack of research on this topic.]

Image: Creative Commons at Pixabay – Thanks

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