PA cases to help with Applications for Contact T

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USING THE LAW

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The Children

Act 1989 (‘The

Act’)

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European

Convention on

Human Rights

1953

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CASE LAW

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RESIDENCE

ORDERS

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CONTACT

ORDERS

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JUDGEMENTS

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COURT

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CONTACT ORDERS

Home / THE SOLUTION / USING THE LAW / CASE LAW / CONTACT ORDERS

PA cases to help with

Applications for

Contact

Introduction

his is a less risky strategy than applying for change of

residence.

Most courts will give most absent parents contact, unless

there are serious allegations against the TP. This, indeed, is

why serious allegations are routinely made against absent

parents, that range from allegations of mental instability

and sexual promiscuity (standardly made against absent

mothers) to allegations of physical or sexual abuse (usually

made against fathers). They don’t stop there. Allegations of

rape, paedophilia and serial murder are not unknown and

there is even one case at least where an allegation was made

of cannibalism! Needless to say, by now we hope, all of

these allegations are groundless and are eventually shown

to be so. But in the meantime, you get no contact…

Courts are conservative. They like to go with the ‘no order’

principle, which, stated alternatively means ‘if in doubt, do

nowt’. If there is any doubt that you might be violent or

something of that kind, some courts may, without any

evidence, order no contact…for the moment…just to be on

PROBLEMS

SOLUTIONS

PATHOLOGY GET INVOLVED NEWS AND BLOG

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FOLLOWING

PRECEDENT

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TRANSPARENCY

– publishing

decisions

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APPEALS

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CLASS

ACTION

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TIPS FOR

DEALING

WITH THE

SYSTEM

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A NEW

APPROACH



REFORM

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TRAINING

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ADJUSTMENTS

TO THE ACT

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A NEW

STATUTE?

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the ‘safe’ side. But is it ‘safe’ to leave the child with a

sadistic narcissist?!

The problem with PA cases is that time is our enemy. The

longer the case goes on, the longer the child does not see

you, the deeper the alienation gets. Alienators know this.

Judges must know this too, as you will see from cases like re

S, and re A. And yet many simply stand by and watch it

happen…

Another reason to advocate this approach is our observation

made elsewhere, that courts can order whatever they like,

regardless of what the parties want, if another course of

action is in the best interests of the child. In other words,

you can apply for contact, convince the court that PA is

present and the court may order a TRO (Transfer of

Residence Order). Don’t hold your breath on that one

though…

The Case Law

Re T (A Child) [2002] EWCA Civ 1736

A case of a child, T, who was clearly alienated against his

father.

The child’s feelings switched from (according to his father)

this: “The last time I had seen JW — that is 4th July — he

had been hugging and kissing me and telling me how much

he loved and missed me” to this “When I tried to speak to

JW in the car park he told me I was a liar, was drunk all the

time and that nobody liked me. He told me never to call him

again.”

The relationship between the father and the child was fine

until the father and the mother fell out.

“…the judge failed to make a finding or sufficiently reasoned

finding on alienation by the mother or to make it clear that

he was not making such a finding”

The father was granted permission to appeal.

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M (CHILDREN) [2005] EWCA Civ 1090

“This is an appeal which has caused the

court considerable anxiety. It is another of

the apparently intractable disputes over

contact that, in this case, teenage children

should have with the absent parent. In

many ways the story is ultimately familiar,

save that in this case the absent parent is

the mother, not the father.”

The case involved two children aged 15 and 13.

The mother was accused of harming the children physically,

and of being mentally unwell and unfit, as well as trying to

‘abduct’ one of the children, an accusation described as “a

flagrant mischaracterisation of what took place” and “a

monster misunderstanding all round, with extremely

unfortunate consequences so far as these children are

concerned”.

These allegations weem only to have arisen when the father

had undertaken a relationship with another woman – the

“stepmother”.

A welfare officer concluded “… I have no doubt that there

has been no encouragement at all over the past two and a

half years by the father and stepmother to see her [the

mother] in a more positive light, rather than the reverse.

The children were completely unaware that their mother

had been sending them cards at regular intervals despite the

father’s avowal to the contrary.”

The trial judge ordered that the M was to have indirect

contact, quarterly. The children remained “implacably

hostile” to the idea of contact with M. There was “no

attempt on father’s part to alter this extreme mind-set”.

Ward LJ observed

“Here it seems to me the judge has fallen

into error. True it is that these are children

whose views ordinarily carry great

weight, but we have to bear in mind not

only their age, but their understanding.

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Their understanding in this case is

corrupted by the malignancy of the views,

with which they have been force-fed over

many years of their life, until so blinded by

them that they cannot see the truth either

of their mother’s good qualities or of the

good it will do them to have some contact

with her”

And

“There is, it seems to me, a further error in

the judge’s approach. He has

acknowledged the harm these children are

suffering and will continue to suffer and he

has acknowledged (with the benefit of

hindsight, true) the failings of the court

properly to have dealt with that problem. I

am afraid I am critical of that failure. I

have recited the history and it does not

bear much repetition, but having allowed

two years of relief from mother’s direct

pressure, that period expired in October

2000, that was the time to be more

robustly interventionist, to ensure that the

court delivered what the father promised

to deliver, but failed to deliver, namely a

change in attitude”

The court should leave no stone unturned in trying to

restore the children’s relationship with M – it should not

stand by and do nothing. The M’s appeal was allowed, and

the matter was transferred to a High Court Judge.

G (A CHILD) [2006] EWCA Civ 348

The principle outlined in the previous case was again

stressed here – no stone should be left unturned in trying to

keep the relationship between a child and its parents.

The trial judge had rejected F’s application for direct

contact. CAFCASS had supported no contact because, when

considering the stress of the proceedings on the child,

“enough was enough”. M had alleged that F had been

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‘harassing’ her. A clear case of an alienated child denied

contact with F. F appealed.

Appeal allowed, and a further assessment ordered.

Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056

The trial judge ordered no direct contact for F. He

appealed. The children were aged 10 and 12. The trial judge

was critical of M saying

“Her unilateral action in thwarting contact

has not helped, and her insistence upon the

involvement of the Domestic Violence

Intervention Project may not be the

panacea that she thinks it is.”

But the judge rejected F’s assertion that M was

systematically alienating the child. The social worker

recommended therapy for both parents, an option that the

trial judge did not consider adequately.

F’s appeal was allowed and a retrial ordered.

Burgess v Stokes [2009] EWCA Civ 548

This was an appeal from M who has persistently disobeyed

court orders and had been ordered to be committed to

prison for contempt. F indicated that he did not wish to

resist M’s appeal, who had a baby of three moths of age,

which she was breast-feeding. Although

“The days are long gone when mothers can

assume that their role as carers of children

protects them from being sentenced to

immediate terms of imprisonment for

clear, repeated and deliberate breaches of

contact orders.”

The CA nevertheless allowed M’s appeal.

IN THE MATTER OF D (Children) [2010] EWCA Civ 496

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This case involved two boys aged 12 and 9. F had been

found by a Circuit Judge to have sexually abused their half-

sister, something F consistently denied. On this basis, M

said that F should not be allowed to see his sons, and that

this prohibition should extend to F’s parents who M feared

would facilitate further abuse.

Dr Hamish Cameron was the expert.

“The judge found on advice from perhaps

the most distinguished experts in the

country when it comes to child and

adolescent psychiatry, one of them

certainly Dr Hamish Cameron, and a first

rate NYAS guardian, Mrs Val Proven, that

the children were effectively living a lie.

They were being forced by their mother’s

obsessional beliefs to satisfy her, to please

her and to accept what she believed even

though they did not believe it themselves.

The consequence was that when Dr

Cameron, who is a very moderate man,

came to consider all the evidence he

concluded, without hesitation, and he used

the phrase and I have queried it because I

was surprised that a man of Dr Cameron’s

moderation would use it, but when he had

a conversation with Mrs Proven about the

case on 31 October 2008 he used these

words:

“Dr Cameron and Mrs Proven consider

that abandoning [T] to the pressures of his

mother’s belief system would run a real

risk of distorting and warping his

psychological development so profoundly

that in his adult years, he could be

emotionally crippled and unable to form

trusting relationships with others.”

A psychiatrist of Dr Cameron’s distinction does not say

those words lightly and everyone in this court should listen

to them carefully and reflect.

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The trial judge ordered that the children live with the

paternal grandparents, and M appealed.

The CA, (Wall LJ) said:

“The idea that these children should regard

their grandparents as effectively ogres

who are likely to facilitate and connive

them being abused by their father is

fanciful and absurd and I do not give it

credence for one moment” and M “has

inflicted on these children a belief system

which, in the words of the consultant

psychiatrist, might well involve them

becoming emotional cripples.”

M denied permission to appeal, the children to remain with

the paternal grandparents.

In the Matter of the L-W Children [2010] EWCA Civ 1253

The resident parent in this case was F. F appealed against

enforcement orders made against him for failing to comply

with court orders. The appeals were granted.

The trial judge had observed that this case involved PA.

There were two children, a girl, ‘E’, aged 9 and M, a boy,

10. M lived with F and E with M.

The court had to rule on M having contact with her son, and

E with her father. F was not cooperating with contact, and

breached court orders six times and was sentenced to 28

days in prison for each infraction. F was obviously

alienating M from his mother, and M was using

inappropriately sophisticated language to express his

feelings.

“The social worker, Mr Stevens then talked

to M about the contact that was due to take

place on 14 July 2010:

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“M told me he would not go to see his

mother, at which time I reminded him the

Court expects his father to ensure he does

attend. M replied ‘I don’t care’. M told me

he did not feel his mother was being ‘co-

operative’.”

Whatever view I might ultimately have

come to in the absence of that report, its

very worrying contents to my mind quite

plainly tip the balance heavily against

committal”

Sedley LJ said this in allowing F’s appeal:

“If, as happened here and must happen in a

good many cases, the judge legitimately

forms the view that it is the father who is

obstructing contact by transmitting to the

child his hostility towards the mother, the

judge may well make a coercive order

against the father. From that point the

judicial die is cast: subject to accidents,

failures of contact will be the father’s fault,

and punishment will if necessary follow.

But this paradigm of fault omits something

which may well be, or become, critical –

the child’s own feelings and attitude. Even

if, as Judge Caddick strongly sensed, it was

from the father that the boy had picked up

not only his view of the mother but the

vocabulary in which he was expressing it,

by the time committal was on the agenda it

was very plainly the boy’s own refusal

which was impeding contact.”

He goes on to say:

“There are at least two morals. One is that

before deciding that a parent is the author

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of a child’s resistance to contact and so can

be made the subject of a coercive order, the

court needs also to be sure that the parent,

by one acceptable means or another, can

still reverse the child’s attitude. The other is

that even then a court, despite the affront

to its dignity, may have to be prepared, if it

comes to the point of committal, to accept

that the predictive premise on which it

initially acted has turned out to be wrong:

that, for example, the child has internalised

the custodial parent’s hostility, so that

punishing the parent can no longer

produce the intended outcome and may

produce its opposite.”

This, then, is a case where all judges, at upper and lower

levels, recognise the alienation of the child, but nevertheless

refuse to punish the alienator.

D vs H 2011] EWHC 3521 (Fam)

A clear case of alienation, albeit less malignant perhaps than

some. Hedley J observed:

“The second thing to say is that the child’s

undoubted superficial opposition to contact

provides a convenient cloak at the present

time behind which the mother can shelter

her concerns about contact. I do not believe

that she has deliberately manipulated E’s

views to those which that child now

expresses but, on the other hand, I have no

doubt whatever that she not only has

strong views against contact but that she

does not mind who knows those views. It is

beyond question, in my judgment, that E

has fully absorbed not just the views but

the force with which they are held and that

the mother’s attitude and the mother’s

making clear to E that contact was in fact

a matter for her choice amounts in practice

to an implicit encouragement to resist

contact.

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I do not think that those views are

maliciously formed, nor do I believe that

they are maliciously perpetrated, but I do

believe that they are obstinately held and

obstinately persisted in, irrespective of the

impact that has on E herself. The mother’s

present views remain deeply entrenched

but – and this is an important ‘but’ – I

think it is probable that if the child were to

be of the view that she, E, would like

contact, the mother’s opposition would not

in fact go so far as to overrule the child’s

expressed wishes. I say that not just

because that is what the mother said to me

but because I suspect that is what has

happened once before in this family, and it

seems to me that is something that the

court ought to take on board.”

Of the expert, Dr Berelowitz, the judge said this:

25. “I had the advantage of hearing the

evidence of Dr Berelowitz, a

distinguished consultant child and

adolescent psychiatrist who has

considerable experience of the cases

that come before this court. He had a

number of observations to make

which were of some importance. In

particular, he heard of the child’s

opposition to contact but had two

particular observations to make

about that. First, the child had said

on one occasion that she may never

see her father again, and he detected

more wistfulness than determination

in that expression of view. Secondly,

he said that he could find no

objectively comprehensible reason for

the child’s opposition. The child had

expressed as a ground the fact that

the father had threatened on one

occasion to ‘knock mummy out’.

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According to Judge Harris’ findings,

the father had indeed done that in

December of 2007. The difficulty with

it being a comprehensible reason for

objection is the reaction of the child in

contact in April 2008, and Dr

Berelowitz’s view was not that this

child was merely parroting other

views but that he could, nevertheless,

not discern any, as I say, objectively

comprehensible reason for her

opposition.

26. The second set of views expressed by

Dr Berelowitz which are of

importance in this case was this. He

said that although the experience of

being caught up in conflict of this sort

was always harmful to a child, and

that E was no exception in that

regard, nevertheless, there was not

the evidence one might expect to find

had significant emotional harm been

inflicted on E by it, and, accordingly,

this is not a case in which the court

can or should resort to the assistance

of the local authority. Moreover, said

Dr Berelowitz, some further attempt

to effect contact would not produce

significant harm. It will, of course, be

harmful but that the harm that might

be suffered is a harm that would be

more than offset by the advantages of

a renewal of contact.

27. The third thing that Dr Berelowitz

said of importance was this. He

thought that it was too early to

abandon the quest for contact

because the benefits of contact, as he

saw them, merited some further

attempt being made in that direction.

What he did say, however, was that

he was not the right person to effect

that, this was not the task of a child

and adolescent psychiatrist but was

the task of a psychologist, or, as the

Guardian said, it was a pure social

work task. I think that is a correct

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assessment and I acknowledge that

Dr Berelowitz probably has nothing

more to contribute at this stage to

this case.

28. It has to be said, in fairness to the

parties, that Dr Berelowitz’s evidence

did rather read as though he was

saying that no attempt at all should

be made to further contact in this

case, but that was clearly not his

intention, as became manifest at a

very early stage of his oral evidence.

He was asserting that he had nothing

further to contribute, not that there

was nothing further to be done.”

Of the Guardian, the judge commented as follows

“The Guardian’s view is that the mother

has throughout done all that she can to

make contact difficult and that the way of

addressing the position in which

everybody now finds themselves is

fundamentally an issue of social work

rather than medicine. I accept that the

reasons for these endless difficulties over

contact, and everything associated with

contact, are for the most part, though not

quite exclusively, to be ascribed to the

mother, but, as I indicated, that is not as a

result of malice but is the result of an

obstinate determination to see through

what she thinks is right in this case”

The Court ordered further professional guidance, and for

the parties to consult and come up with a plan for contact.

Not a helpful judgement at all, given the findings that M was

being obstructive over contact.

W (Children) [2012] EWCA Civ 999

Two children, 6 and 9. F alienated, but M had concerns that

were not without foundation about F’s temper. But F had

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addressed those issues and his demeanour improved

markedly. F now gave evidence calmly and

“I found F’s account to be an honest one,

and his beliefs genuinely held”.

M broke down in the witness box and the judge found

causes for concern in her evidence. McFarlane LJ

comments:

“Finally I would refer to the pithy, but

nonetheless correct, distillation of this

approach in the judgment of Ward LJ in Re

P (Children) [2008] EWCA Civ

1431, [2009] 1 FLR 1056 at paragraph 38

where it was said that “contact should not

be stopped unless it is the last resort for the

judge” and (paragraph 36) until “the judge

has grappled with all the alternatives that

were open to him”.

F’s appeal was allowed. The judge had not ´grappled with

all the alternatives that were open to her´ when refusing to

order direct contact. A retrial was ordered before a different

judge.

F (Children) [2015] EWCA Civ 1315

A case of an alienated M. F had alleged that she was having

an affair with one of her step-children, but the trial judge

indicated that

“There is almost literally no evidence to

support that proposition … [the father] has

built a sand castle out of nothing, it seems

to me.”

F did not engage with the court process. McFarlane LJ

ruled:

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