This judgment, startlingly, comprises 500 paragraphs, although with a helpful List of Contents added by HHJ Dancey, at Bournemouth Family Court. The case is called JD and another v VB and others [2020] EWFC 16.
The judge’s opening paragraphs [1-4] grab attention:
“In the battle between the parents both children risk being run over by the tanks”.
This prescient observation by a psychologist, Ian Stringer, in a report in this case as long ago as August 2015 remains true today, perhaps even more so.
After nearly 7 years of almost continuous litigation concerning an 8 year old girl, A, involving dismissed allegations of sexual abuse, transfer of residence from mother to father following allegations of parental alienation, breakdown of contact with the mother and allegations now of parental alienation by the father, with a successful appeal from an indirect contact only order made two years ago, I am dealing with a re-hearing on the question whether to vary an order for direct contact between A and her mother and 18 year old half-sister, B. A has not seen them since February 2018.
I make no apology for the length of this judgment. If there is one thing everyone is agreed on, this litigation needs to come to an end for the sake of A and all the adults involved in it…..
A’s family
The issue was whether A, aged eight, was to have direct contact with her mother and her 18 year old sister, B. A was at the time (January 2020) living with her father and stepmother and hadn’t seen her mother or B for nearly two years. The parents had separated when A was about 20 months old and initially A remained living with her mother and B. Acrimonious court proceedings ensued which involved allegations made by B against A’s father (her stepfather). When A was aged four, the court ordered a transfer of residence of A from her mother to her father and stepmother which took place. There was supervised contact between A and her mother and B for a time but proceedings continued. By the date of this hearing, there was evidence that the protracted proceedings had driven A’s father close to suicide. He told the court that if an order for direct contact was made he would not be able to cope with the continued presence of B and her mother in his life, and would have to give up caring for A at all. His wife agreed that his mental health would further deteriorate if direct contact was allowed.
The law
HHJ Dancey sets out (at paras 23-75) the relevant law relating to complex contact cases; the concept of ‘the reasonable parent’; the need for judicial strategy in complex cases; section 91(14) applications; non-molestation injunctions; and fact finding. The father was applying for a Children Act 19189 section 91(14) order to stop further family court applications regarding A and a Family Law Act 1986 section 46 non-molestation order to stop the mother and B from having anything to do with him.
The judge’s decision
After considering all the options, the judge decided ‘on balance that the risks for A around direct contact outweigh the immediate and long-term benefits that it would bring her’ and that therefore no direct contact with her mother and B was ‘the least worst outcome’ for A.
The mother was already subject to a prohibited steps order and a non- molestation order. These were continued. A section 91(14) order was made for four years to take effect until A had finished her second year at secondary school. The father had asked for five years but the judge felt this was excessive.
The judge sets out 11 matters that need to be addressed by the various parties if there is ever to be any hope of A resuming contact with her mother and B in the future. He also made a 12 month family assistance order to enable the local authority to provide A with the support she needs. This is to include life-story work to help A come to terms with her history and express herself more freely. There was concern about how she was internalising the conflict.
‘Was this a case of parental alienation?’
The judge asks this at para 411. His answer is ‘No’. The mother’s lawyer was arguing that the father may not have been actively alienating A from her mother but was subtly doing so. The father and step mother didn’t have lawyers and don’t appear to have accused anyone of parental alienation as such. Oddly, the lawyer for the Cafcass guardian said that this had ‘undoubtedly’ been a case of parental alienation by the mother but that A was now ‘suffering from parental alienation by the father’. The judge disagreed with all these claims, pointing out that:
Parental alienation is not defined. Cafcass understand it to mean “when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent”. Implicit within the concept of parental alienation is that the child has been ‘turned’ against a non-resident parent.
Alienation itself exists on a spectrum, ranging from the unconscious undermining of a child’s relationship with a non-resident parent (including the more subtle form described by [mother’s lawyer] to the out and out deliberate campaign designed to destroy the relationship…It is not uncommon to see cases which feature all, or any combination of, justifiable rejection, alignment, attachment and alienation. It is essential that the court understands, through findings if necessary, what it is dealing with. [413-414]
The judge based his rejection of the alienation claims on the fact that A was not unduly upset when she moved from her mother to her father when she was four (so wasn’t alienated against him) and is not currently hostile about her mother (so is not alienated by her father). Furthermore, the child psychiatrist in the current proceedings had not identified alienation in A.
Publication
Despite this dramatic opening, we haven’t seen the case featured in the media. It is clearly an extraordinary case, and may not have a wider impact on the law or other families in court. In the interests of transparency, however, the publication of the judgment is valuable in informing the public of the amount of time and resources that the family justice system is called on to invest in some families, and the care with which this judge (and probably all the other judges who have heard the case over the years) have taken to try to resolve matters. It’s difficult, in this particular case, to disagree with HHJ Dancey that A has not been failed by the system but by her parents.
It’s also interesting to see what the judge had to say about parental alienation, and that he seemed better acquainted with Cafcass guidance than the lawyer acting for the child and the guardian.
We’re pleased to see The Transparency Project cited in a footnote (our post of Sir James Munby’s speech on private law) and the way the judge has cited research and practice in his analysis.
We have a small favour to ask!
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