Judgments which may prove useful to parents who believe their children to be being alienated from them. These include judgments which specifically relate to parental alienation, and those which involve wishes and feelings and intractable disputes.
R H (Minors) (Access) [1992] 1 FLR 148 at 153A; Re M (Contact: Supervision) [1998] 1FLR 727
"The possibility of short-term upset must be balanced against the long-term benefits which are likely to accrue if contact is established."
RE: M (CONTACT: WELFARE TEST) [1995] 1 FLR 274 AT 278-9, CA
"namely that the court should consider whether the fundamental need of every child to have an enduring relationship with both parents is outweighed by the depth of harm to the particular child that might thereby be caused by the contact order."
RE T (CONTACT: ALIENATION: PERMISSION TO APPEAL) [2002] EWCA Civ 1736 [2003] 1 FLR 531
Appeal allowed "I have concluded that 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". There was a serious breakdown in the child/father relationship and the judge failed in his quasi-inquisitorial duty to assess the origins of the breakdown.
RE S (Children) [2004] EWCA Civ 597 2 FLR 710
"It is essential that the passage of time should not become conclusive in depriving the children of a relationship with their father."
At paragraph 17 "It is a case in which the passage of the years has almost become conclusive and should not be allowed to become conclusive without a major judicial effort to rescue for these children a relationship with their father before it is too late."
A v A [2004] EWHC 142 (Fam)
The court found that a shared residence order ´removes any impression that one parent is good and responsible and the other is not, and has the benefit of being more realistic in those cases where the child is to spend considerable amounts of time with those parents´.
Lord Justice Wall further confirmed that shared residence orders may be made even when one parent is hostile to the idea (and otherwise the ´no-order principle´ would apply).
´If these parents were capable of working in harmony, and there were no difficulties about the exercise of shared parental responsibility, I would have …. made no order as to residence.´
RE S (CONTACT: PROMOTING RELATIONSHIP WITH ABSENT PARENT) [2004] EWCA CIV 18
[32] No parent is perfect but ´good-enough parents´ should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt.
The application by the father´s counsel for a psychological assessment is the possible key to a reconsideration of future contact...
M (Children) (Contact: Long Term Best Interests) [2005] EWCA Civ 1090
"Justice to the children and the deprived parent require the Court to leave no stone unturned that might resolve the situation and prevent long term harm to the children.” “Includes the Court directing a psychiatric or psychological assessment from an expert experienced in dealing with families with children with problems of this kind.” “…the Court should not stand by and take no positive action."
G (A Child) [2006] EWCA Civ 348
The Court should "pursue all possible avenues to the resumption of direct contact" established in particular in G (A Child) [2006] EWCA Civ 348. "Whatever the difficulties, however scant the prospects of success, the courts must not relent in pursuit of the restoration of what had been a natural relationship between father and daughter, absent compelling evidence that the welfare of the child requires respite."
Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056
"Where an intractable dispute has resulted in the children refusing to see their father, the court should not terminate direct contact until every avenue has been explored , including counselling or therapy for the parents." See paragraphs 37 & 38.
Re A (Suspended Residence Order) [2009] EWHC 1576 (Fam) COLERIDGE J
"a crucial measure of a resident parents ´good enough´ parenting is whether they promote frequent and continuous contact with the non resident parent." - Dr Cameron
Burgess v Stokes [2009] EWCA Civ 548
"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." - Ward LJ.S (Children) [2010] EWCA Civ 447
It would be "wrong to proceed on the basis of wishes and feelings alone.." and "...wishes and feelings are secondary to their welfare..".
TE v SH and S [2010] EWHC 192
"It would be ... inappropriate ..to proceed on the basis that expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of [S´s] age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them".
Re L-W (Children) [2010] EWCA Civ 1253
The resident parent's obligation (in this case the father) was to "allow" and make the child "available" for contact. This was the father's obligation under the contact order "no more and no less". There exists a defence of impossibility. Within the judgment, it was also noted that committal to prison remains an essential power of the court. The judgment includes opinion as to when committal can be appropriate for breach of contact and contempt of court.
The text of the judgment also highlights the possible use of suspended residence orders as a tool to encourage contact (paragraph 107):
"this court has endorsed the propriety in an appropriate case of making a suspended residence order, that is, an order providing for a future transfer of residence upon the happening (or non-happening) of a defined event: see Re A (Suspended Residence Order) [2009] EWHC 1576 (Fam), [2010] 1 FLR 1679 (appeal dismissed Re D (Children) [2009] EWCA Civ 1551), and Re D (Children) xxx (appeal dismissed Re D (Children) [2010] EWCA Civ 496)."
Re E (A Child) [2011] EWHC 3521 (Fam)
A recent judgment giving guidance for case management in parental alienation cases, and in particular noting that in such intractable cases it is important to to hear evidence on welfare matters at an early stage (rather than fact-finding) and that judicial continuity is important, but that the High Court is not best placed to provide that.
TCM Comment: It is worth noting the conflicting opinions of the Guardian and the expert in the case (the respected Mark Berelowitz), and that contact may have ceased had no expert been involved in this case (e.g. the judge was informed by the opinion of the guardian alone). It is worth remembering that a social worker/CAFCASS Officer is not an expert in child psychology, and there may be times when an expert opinion would be more appropriate, depending on the matters being considered (e.g. the psychological impact/harm on a child of cessation of contact and the risks and potential rewards of contact being resumed).
Where in the public domain, we provide full text case law. See our PA Case Law Full Text section where we also provide download links for printable versions of the judgments.