There was a remarkable judgment from the English Appeal Court last week. Its 71 pages include cult loyalty, freedom of religion versus best interests of a child and unsupported and unfounded allegations of improper conduct against a father all wrapped up in a remote hearing with a bit of COVID-19 thrown in for good measure.
It was an appeal case in the Family Division in England and Wales but there are serious points that Scottish judges and Scottish family solicitors ought to take on board. So should the Scottish Government and MSPs in their current consideration of the Children (Scotland) Bill currently before the Scottish Parliament.
The Appeal Court is almost the top of the judicial pyramid in England and Wales. Only the UK Supreme Court can unpick its decisions. It is not, therefore, a campaign or a pressure group.
The whole matter of its deliberations in the case of Re: S is Parental Alienation.
In Scotland even the phrase Parental Alienation seems to induce vapours. We have heard of sheriffs slamming their fist on the bench defying a party in a contact/residence case to use the phrase again or risk the entirety of his case. Solicitors routinely advise their clients against using the term ”because the sheriff doesn’t like it.”
The Scottish Parliament Justice Committee published its Stage 1 Report on the Children (Scotland) Bill on May 1st, 2020, in the same week as this judgment. A Stage 1 Report is the culmination of a committee’s review of a Scottish Government Bill after taking evidence from a variety of witnesses and written submissions.
Shared Parenting Scotland pressed for parental alienation to be included in a check list of matters a judge should take into account when assessing the best interests of a child where arrangements are not agreed between the parents.
On page 40 of its report the Justice Committee declines to recommend to the Scottish Government to amend its Bill to include Parental Alienation on the list.
It says, ”The Scottish Government consulted on the inclusion of a specific factor relating to parental alienation but ultimately decided against it. Scottish Government officials told the Committee that the term parental alienation is ‘much disputed’ and therefore the Government concluded that it would not be appropriate to include it in the Bill.”
Shared Parenting Scotland has been aware throughout the prolonged process of getting the Bill to this stage that the Scottish Government does not like the term or want it to appear in legislation.
It seems curious at the least therefore that in Scotland the government and Justice Committee find Parental Alienation just too difficult while just down the road in England and Wales the second highest court in the land seems to be very comfortable that the phenomenon is defined, that judgments can be made and interventions ordered.
So let’s have a look at how the Court of Appeal set about its task in an unhappy case.
There is a background to the disagreement between the parents involving the mother’s involvement in what is asserted to be a cult. The details aren’t relevant here other than the clear statement by the court that “In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.”
More important for present purposes the court then goes through the law and English court decisions on parental alienation. Note for Scotland, there have been many such decisions. The concept is well established in the courts south of the border and judges seem comfortable with it.
In Paragraph 8 the court says, ”For working purposes, the CAFCASS definition of alienation is sufficient: ‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”’
So there is a working definition.
In Paragraph 12 the court observes, ”Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship.”
This is the foundation of observations later in the judgment that the longer a case drags on with parental alienation being neither acknowledged nor addressed the more it works against the best interests of the child into adulthood, long after the judges have gone home and the solicitors have closed the file.
In Paragraph 11 it continues [The court]” … will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become. It must take a medium to long term view and not accord excessive weight to short-term problems.”
This is particularly important in the context of the discussion elsewhere in the Children (Scotland) Bill and the Stage 1 Report on the importance of according a voice to the child.
The Scottish Government and the Justice Committee should take note of the court’s Paragraph 13: ”The situation calls for judicial resolve because the line of least resistance [when a child says, for example, s/ he hates the other parent and just does not want to see him/her] is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. …
Above all, the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent’s right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. … but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken.”
The final decision in this case on whether to transfer residence of the child from the mother to the father or to give her one more chance to put the interests and health of their child ahead of her own is of course particular to the facts set out.
The final judgment isn’t the point of this blog. The point is that it seems perverse that the very idea is still resisted in Scotland while decisions are being made about it in England and Wales.
And there is a final shot across the bows for lawyers who think they are doing their job by passing on poisonous but unsupported suspicions of the other parent.
In Paragraph 84 the court says, ”the mother has continued to trail her coat on this point, with clear insinuations in counsel’s submissions … that something improper may have been going on. We agree that this submission is an unjustified slur that should never have appeared in professionally drafted documents.”
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