03 April 2020 - Article
The children of a mother who was ‘more like a friend than a parent' were moved from living primarily with her to live with their father. That is how The Times reported the case of RS v SS on 18 February 2014. The article focused on the children's mother's permissive parenting style; how she would head off to bed after school, leaving the children to watch television and play on their x-box. The judge praised the children's father for his insightfulness and persistence in seeking residence, and made a Residence Order in his favour. On the face of it, the case could simply be interpreted as the triumph of middle-class parenting values. If you are a divorced parent and your children spend the majority of their time with you then let them watch too much television at your peril! But this superficial analysis belies a far more complex picture that is painted when one reads the case in detail. The children in this case were apparently alienated from their father by a manipulative mother, who coached them to believe that their father had been neglecting them. The judge described the mother as a ‘very and angry and willful woman', who had 'significantly failed these boys_'. Her hatred of the father was _‘almost pathological'. Living with their mother was so detrimental to their welfare and their relationship with their father, that the Judge was satisfied that it would be better for them to move home, school, and town to live with their father.
In recent years there has been a significant shift in the Court's attitude towards alienated parents. Any decision the Court makes must put the child's welfare as its paramount concern, and it must apply the welfare checklist set out in section 1(3) of the Children Act 1989. One of the key considerations on the ‘checklist' is the child in question's wishes and feelings. However, when a child has become alienated from a parent, as the children were in this case (to the point that they were reported as saying that their father was, among other far more shocking things, a ‘_psychopath_' and a ‘_retard_'), to what extent can the child's wishes and feelings be relied upon?
In Re S in 2010 the judge said this:
‘_S's [the child's] wishes and feelings must be assessed in accordance with his age and understanding. It is here that the assessment becomes more difficult. I have found that S has become alienated from his father. S has said that his father is a 'monster' and that he 'hates' him. It is clear from Dr. W's evidence that such behavior fits within the pattern of behavior of children who have become alienated from their non-resident parent. In his report of 18th July 2008 Dr. W was very clear. He said that: “it is also important for both parents and for all professionals working with the child to recognise that the child's expressed wishes and feelings are irrational and should form no part in the Court's decision making.”_'
More recently in the Court of Appeal case of Re H (judgment was handed down on 5 June this year), a Judge's decision to make an interim residence order in favour of a father where contact was being deliberately obstructed and undermined by a mother was upheld. The Court of Appeal in this case sought to protect '_recruited children_' from a parent whose approach damaged the relationship with the non-resident parent. In this case the Judge at first instance was critical of the professionals involved who did not appear to see the damage the mother was doing to the children. She commented that it was the ‘ascertainable' rather than the ‘expressed' wishes and feelings of the children that were important. She said: ‘_Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this._'
Alienation is not an issue in many cases but when it arises it can come to dominate not only a case, but the entire family structure and the children's lives going forwards. In cases where alienation is arising as in impediment to contact, the Courts are becoming increasingly willing to intervene, even to the extent of making Orders in the face of apparently significant opposition from the children involved.