Parental Alienation: Transfer of Primary Care and Termination of Contact

In May, Nazmun Ismail wrote about the new Cafcass guidance on parental alienation. In this article, Emily Landale looks at two cases that have involved serious findings of parental alienation, and how the court dealt with the child arrangements in those situations.

Emily Landale

Parental alienation cases are complex, requiring very finely balanced assessment and decision making. The decision of the Court could have a life-changing impact upon the child and also the parent who is found to be alienating the child against the other parent.

Transfer of Primary Care

Where a child is being alienated by the resident parent against the other non-resident parent, a move as drastic as a transfer of primary care could be sanctioned. This would be in order to prevent the relationship between the child and the alienated parent deteriorating further, if the alienating parent cannot change their ways. This would also prevent the child from being further emotionally harmed in the care of the alienating parent.

MFS (Appeal: Transfer of Primary Care) [2019] EWHC 768 (Fam)

In September 2018, an order was made which provided that the child would live with his father. The child had previously lived with his mother. The child would have contact with his mother, and that contact would be supervised to begin with. His mother sought leave to appeal against the order.

The case involved a s.37 report that expressed concerns about the mother’s negativity towards the father, and concerns about the mother’s capacity to promote contact. An expert had also independently concluded that the mother had alienated the child from the father. 

The Local Authority, the Guardian and two experts held the view that the mother was unable to promote the child’s relationship with the father, and that the failure to do so would cause emotional harm to the child.

The judge accepted that the child had been subject to parental alienation by the mother. The allegations the child was making against his father were held to be unfounded.

The Guardian considered the potential effect on the child of leaving his mother’s care and moving to the care of his father against the risks of him remaining in his mother’s care and being further alienated from his father.

The social work assessment identified that the mother was not in a position to promote contact over the long term despite there being a period of time after the court hearing in which she had adhered to the contact arrangements put in place. The mother could not evidence insight into the manner in which she had affected the child’s view of his father.

Both experts supported the need for the change of residence. Both identified that the child was suffering emotional harm, and that that harm was likely to continue in the absence of any evidence of insight or change by the mother.

There was overwhelming evidence that supported a change of primary carer. This was further supported by the mother’s position at the final hearing that contact between the child and his father should in fact be reduced. She continued her negativity towards the father and further evidenced an inability to take on board the views of experts and professionals.

Held: the decision that had been made was one which “almost every judge would have reached”. A decision to leave the child with his mother “would have been a most unusual outcome on that evidence and would have called for a very clear explanation support”. The change of primary carer was in the child’s best interests and was proportionate on the evidence. The appeal was dismissed.

Termination of Contact

Re (A Child – Appeal – Termination of Contact) [2019] EWHC 132 (Fam)

This case involved a long history of litigation. In 2013, the mother alleged that the father had physically abused the child. She told the police. No further action was taken by the police or the local authority. Then, in 2014, the mother and maternal grandmother made further allegations of physical abuse against the father. These were found to be untrue. In 2014, the parties separated.

The mother imposed a period of no contact, after which the father issued an application for a live-with order. Contact then progressed for the father and the child from supervised to supported and then unsupervised. Contact was taking place regularly, and including overnight stays between July and November 2015. The mother then made an application for an occupation order.

There was a supervision order, because it was held that by being drawn in to conflict, the child had experienced emotional harm. Contact was ordered to continue, and it did, but with some difficulty.

In 2017, contact was stopped again and the father issued enforcement proceedings.

Findings were made against both parents. Those that related to the father were limited, but the findings against the mother were of parental alienation. It was said that the child “…has suffered and/or remains at risk of suffering from significant long term emotional harm as a result of the mother’s manipulation; this is against the background of the mother’s strong and firmly held (although incorrect) belief that the father is a risk to R”.

The child was to continue to live with his mother, and only have indirect contact with his father. A s.91(14) order was put in place for 12 months for the spending time arrangements, and two years for the live with arrangements.

The father appealed against the decision that he should only have indirect contact. He also appealed against the making of the s.91(14) orders.

 The expert had been clear in her evidence that the child should have contact with his father, and that further work should be undertaken so that it could progress. That work was to be with the mother in particular.

Held: that there had been a failure in the necessary balancing exercise to weigh up the harm that would be caused by continuing the process of seeking to re-establish contact between the child and his father, versus the risk of harm to the child of there being no direct contact and him remaining in the sole care of his mother. There had not been a full exploration of all of the options available to the child to have direct contact with his father.

The s.91(14) order in relation to the spend time with arrangements was discharged.

This case highlights the importance of exhausting every possible option before concluding efforts to re-establish contact between a child and a non-resident parent. This is particularly important in a case involving parental alienation, in order to prevent continuing harm being done to the child, and further damage to their relationship with the other parent.

Emily Landale is a second-six pupil at Central Chambers. Her pupil supervisor is Kirstin Beswick.

Her pupillage is a mix of criminal and family practice and Emily takes instructions in both areas of practice.

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