In our latest blog post, Evonnie Chan considers the court’s approach where there are allegations of parental alienation.
A review of Re S (Parental Alienation: Cult) [2020] EWCA Civ 568
In this article, I shall be considering the court’s approach where there are allegations of parental alienation, as considered in the case of Re S. As with many cases, the circumstances are fact specific. This case involved a mother who was heavily involved with a religious organisation (which the father considered was a cult) and consideration had to be given as to whether the courts had any right to interfere with the mother’s right to choose her religion. I would suggest that anyone who works in this area carefully reads the judgment to fully understand all relevant detail.
The first question to consider, before looking at the case in detail, is what is ‘parental alienation’? There are a number of suggestions within case law but no definitive answer. In my view, it is unhelpful to use such labels. What is important is that the court determines whether a parent’s behaviour is causing the child to be alienated from the other parent, whether that is deliberate or not.
This fits with what was said by Sir Andrew McFarlane when addressing the Families Need Fathers Conference (on 25th June 2018):
“I wish to say something now about ‘alienation’. For some time there has been debate as to whether or not the holy grail of ‘parental alienation syndrome’ actually exists. For my part, I have never regarded it as important to determine definitively whether or not psychologists or psychiatrists would be justified in attributing the label ‘syndrome’ to any particular behaviour in this regard. In time gone by, there was similar debate as to whether a diagnosis could be made of ‘Munchhausen’s Syndrome by Proxy’. In such cases the focus of the Family Court, rightly, moved away from any psychological/psychiatric debate in order to concentrate on the particular behaviour of the particular parent in relation to the particular child in each individual case. If that behaviour was found to be abusive then action was taken, irrespective of whether or not a diagnosis of a particular personality or mental health condition in the parent could be made.
In my view, ‘alienation’ should be approached in the same way. From my experience as a first instance judge, albeit now more than 7 years ago, I readily accept that in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. Further, where that state of affairs has come to pass, it is likely to be emotionally harmful for the child to grow up in circumstances which maintain an unjustified and wholly negative view of the absent parent.
The Women’s Aid research describes accusations of parental alienation being used against women who raise concerns about domestic abuse to the extent that allegations of abuse are ‘obscured by allegations of parental alienation against the non-abusive parent’.
Drawing matters together, that short quotation from the Women’s Aid research neatly points to a theme in this short address which is to stress the importance of fact finding. It is, as I have already observed crucial, both to the interests of the alleged victim and, in fact, to those of the alleged perpetrator, for any significant allegations of domestic abuse to be investigated and determined as matters of fact, similarly any significant allegation of ‘alienation’, should also be laid out before the court and, if possible, determined on the same basis.”
Re S shows that expert assessments remain important and in this case, an independent social worker was ordered. Case law shows however that the courts have permitted psychologists, psychiatrists, independent social workers and appointed Guardians on behalf of the child. The courts have clearly indicated that social workers and Guardians who have had experience in dealing with alienating behaviour are to be considered experts and their opinions are equally as valuable. Whoever is instructed to provide the expert report for the court must consider the evidence and offer a reasoned analysis as to the harm upon the child if alienating behaviour were to continue. Where there is a divergence of opinion, it will be for the court to determine the issue (see Re M [2003] EWHC 1024 (Fam)).
In Re S, the parents had agreed a shared care order in 2017 and the mother had agreed to prohibited steps orders barring her from involving Lara in the teachings of Universal Medicine, a religion founded by Serge Benhayon and which a New South Wales Supreme Court jury found was a “socially harmful cult”. The father continued to raise concerns about the impact of Universal Medicine on the child despite the PSO and contended she was breaching the terms of this. It was therefore essential that the issue was determined by the court.
HHJ Meston QC did go on to determine the facts. Significantly, he found, on the basis of the evidence available, that the teachings of Universal Medicine were having a detrimental impact upon Lara. He also found that the mother was an “uncritical adherent” of its teachings. The judge also found that “even though the mother does not see herself as alienating Lara from the father, that has started to occur”. Thus he made an actual finding of parental alienation.
With regard to the mother’s allegation that the father was controlling and coercive, the judge rejected those criticisms and considered that “he is a good parent”.
Having made those findings however, the judge then went on to determine the most appropriate orders for Lara’s welfare. The judge refused the father’s application to vary the 2017 shared care order on the basis that the mother provide undertakings in line with the evidence she gave orally to dissociate herself and Lara from Universal Medicine.
In my view, having reached his conclusions about the mother’s continuing involvement with Universal Medicine and the impact that was having upon Lara, including upon the relationship between Lara and her father, the court was under an active duty to use its powers to reverse that situation. Simply inviting the parties to agree some forms of undertaking was unlikely to achieve that goal. The parties had been in proceedings previously, the mother’s commitment to dissociating herself from Universal Medicine was weak and this would therefore continue to be a significant issue.
The father appealed on the basis that this decision did not address the growing harm the child was suffering and the Court of Appeal allowed his appeal, agreeing that HHJ Meston QC was wrong to proceed in such a way.
Despite the mother not seeking permission to cross appeal, she sought such at the father’s appeal hearing. This was refused for a number of reasons. Notably, throughout the various proceedings, the mother had referred to the father co-sleeping with Lara and how she considered that inappropriate. The mother never sought an allegation of sexual abuse but this had certainly been implied. When pressed by King LJ, counsel for the mother accepted that there was not enough evidence of sexual abuse but questioned was there something more sinister taking place?
Having already considered above the necessity for courts to determine allegations by all parties before then considering the welfare of the child, there can be no room for ambiguity. Either one is making an allegation or one is not. One cannot pursue a case by continuing to make vague references to “inappropriate behaviour” unless such has an impact upon the welfare of the child and in which case a determination by the court is required. This, in my view, did not assist the mother’s case and only sought to strengthen the father’s case that the mother’s behaviour was alienating Lara from him.
In this particular case, it was abundantly clear from the written and oral evidence that the mother was a firm believer in Universal Medicine. Despite the significant decision of the Australian court, the mother continued to practise its teachings. Although she contended that she had not yet read the decision, what is clear is that she was aware of its existence and had chosen not to consider it. This demonstrates her strong commitment to the organisation in my view.
The Court of Appeal agreed that HHJ Meston QC had correctly identified the harm to Lara and that there had been alienating behaviour on the part of the mother. Further, the Court of Appeal did not consider that the lower court had taken sufficiently effective steps to counter such. These findings were not surprising in light of the evidence. What may be considered surprising is its decision in how to deal with the proceedings practically. It had already determined that the findings HHJ Meston QC had made would not be disturbed. It therefore had the option to remake the decision. However, instead, the court allowed the mother one further opportunity to completely distance herself from Universal Medicine.
Without such “wholesale transformation” the mother was warned that there would be no alternative but to transfer residence to the father. The court therefore afforded another few months to the mother to prove that she could abide by the previous PSOs made by DJ Alderson and allow Lara to continue the shared care arrangement without issue. The court clearly had in its mind that Lara wanted a relationship with both parents and that the order that would best meet her needs was for the shared care order agreed in 2017 to continue.
Was that the right decision in the circumstances? The Court of Appeal had already criticised HHJ Meston QC for allowing the parties to agree to undertakings given the mother’s entrenched views about Universal Medicine. From the time the judge gave his decision on 16th December 2019 to 15th January 2020, when the parties submitted various undertakings they each required the mother to give, it was clear that the mother was not committed to engage in any necessary therapy to disassociate despite agreeing to do so in cross examination.
By 12th February 2020, in her statement for the Court of Appeal, she stated “All this has nothing to do with me or Universal Medicine as he is implying” and counsel for mother contended “that there was not enough evidence to sustain the judge’s findings about Universal Medicine being dangerous. The Australian decision was the decision of a regional court of equivalent standing to the county court in England and Wales. Ms Ware is not an expert in cults, and her investigation of Lara’s situation was insufficient… The mother does not accept that she needs therapy and she takes issue with the father demanding it. She is nevertheless willing to go to therapy and make any promises necessary to prevent Lara’s removal.”
Firstly, if the mother was willing to attend therapy, why did she refuse to provide an undertaking in line with the father’s suggestion in January 2020? Secondly, why was there any reference to the judge erring in finding that Universal Medicine was dangerous? If the mother did not accept such a finding, why was she agreeing to disassociate from its teachings? It seems illogical and perhaps demonstrates, even more so, how entrenched the mother’s views about Universal Medicine are.
The Court of Appeal has highlighted the active duty on our courts to ensure that where there is evidence of parental alienation, that there are powers used to counteract such. The sooner that is done, the less harm in the longer- term. In this case, there had already been evidence established of the damaging effect upon the father’s relationship with his daughter. She was attending at his home but was unsettled and tearful and saying that she missed her mother. She was angry and rude, and the father considered that Lara no longer saw him as a true parent figure. One could argue that the mother had already been provided with an opportunity to abide by the terms of the PSOs in 2017, and she had demonstrated her inability to do so. Why then was she given a further opportunity in 2020?
It will be interesting to see what happens in this case. The matter has been remitted to the President for a 2 day final hearing in July to consider whether the mother can make a “wholesale transformation”. If she continues to impart her beliefs in Universal Medicine onto Lara, whether knowingly or not, the Court of Appeal has made clear that the mother will not be able to play a significant part in the life of her daughter and the transfer of residence to the father will be effected.
Evonnie Chan
18 St John Street Chambers
Links to judgments cited:
Re S: https://www.bailii.org/ew/cases/EWCA/Civ/2020/568.html
Re M: https://www.bailii.org/ew/cases/EWHC/Fam/2003/1024.html
Evonnie Chan is a member of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.