News and insights from our Family law team
Changing which parent a child lives with - parental alienation
- AuthorNeil Denny
Parental alienation continues to be increasingly recognised by the family courts. What is more, judges are taking increasingly robust steps to resolve situations where one parent turns a child or children against the other parent.
In the recent case of PA v TT the High Court ordered that a twelve year old boy would move to live with his father with immediate effect. Social workers subsequently collected the child from his school that afternoon and delivered him to his father’s home later the same evening.
It is an indication of how seriously the courts take these matters that this order was made notwithstanding the following issues, as set out at paragraph 31 of the judgment:
i) he has lived all of his life to date with his mother;
ii) he is settled in school and has an established group of friends;
iii) he has many interests and is a member of a Taekwondo club;
iv) he has lived the majority of his life in City B in the Midlands albeit he has visited and stayed with his father in City A in the South of England;
v) he will have to accept his father’s and paternal family's home as his new home;
vi) he will have to settle into a new school part way through a new school term;
vii) he will have to make new friends; and
viii) he will have to familiarise himself with his new environment and locale in City A in the South of England.
The Judge, Mr Justice Keehan, decided that the immediate removal and change of residence for the boy was in his best interests. He explained, at paragraph 32, that the son, referred to as “H”:
i) H would be fully supported by his father and the paternal family;
ii) H will have the support and guidance of an independent expert in this field;
iii) it is most likely that his former close relationship with his father will be restored in very short order; and
iv) any trauma and/or stress is likely to be of short duration only and will resolve when he settles into his father's care.
A short, but concentrated period of therapeutic intervention was put in place for the first four days and nights of living together, with further sessions for the next twelve weeks.
The mother had tried to argue that contact between son and father should be gradually resumed – it had not taken place for 18 months.
The court agreed with an expert, Dr Braier, who found that any attempt to reintroduce contact while the child remained in his mother’s care was bound to fail. The mother’s opinion towards the father had been (in the words of the appointed expert) “transferring to H gradually over time, and is now complete, with his independent rejection of contact”.
The expert report went on to recommend immediate and outright change of home for the son in the following, clear terms:
“Even though there may be transient distress, particularly as H is now settled in his secondary school, with friends, this needs to be weighed against the need for removal from his mum, to protect him from further harm, in the form of consequences of complete loss of his dad”.
It remains true that every family law case depends upon its own facts and circumstances and that transferring residence from one parent to another is never going to be lightly or quickly undertaken. The courts, however, are moving away from the position where changing the parent with whom the child shall live is no longer just seen as a “last resort” or “Draconian” measure.
The judgment in an earlier decided case of Re L was quoted in this current decision with the reminder that the court must:
“… consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the s1(3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs”.
“The welfare check list is essential,” explains Neil Denny, a senior family law associate with Roythornes Solicitors in Nottingham. “Judges have generally been very slow to change which parent a child or children should live with due to the potential impact of change. Careful consideration of the check list is required. It will also be necessary to work with professionals and independent experts who are aware of the dynamics in parental alienation and intractable (sometimes called implacable) hostility cases.
The judge in this recent case was highly critical of the social worker who had written a report, and also of the National Youth Advocacy Service case worker. Both were criticised for only making passing references to the report and recommendations of the parental alienation expert, Dr Braier, and (in the case of the social worker) for having had no previous experience of parental alienation cases.
The main elements of the welfare checklist are set out below:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
The court’s decision and the change of address for this boy was made on 20 September 2019. The reported judgment, dated two weeks later, concludes on this optimistic note:
“I have been informed that that process proceeded without incident and the transition plan to date has been effective”.
If you are going through a separation and struggling to get to see your children, or know somebody who is, then get in touch with one of our expert family lawyers in Spalding on 01775 842505 or Nottingham on 0115 945 4425.