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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> RH (Parental Alienation) [2019] EWHC 2723 (Fam) (03 October 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/2723.html Cite as: [2019] EWHC 2723 (Fam) |
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![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
HIGH
COURT OF JUSTICE
FAMILY
DIVISION
Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
____________________
![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
Applicant |
|
- and - |
||
TT |
1st ![]() | |
-and- |
||
![]() (A ![]() |
2nd ![]() |
____________________
Helen
Fitzsimmons
Family
Law) for the Applicant
The 1st Respondent
appeared in person
Ms A Musgrave (instructed by NYAS) for the 2nd Respondent
Hearing
dates: 20th - 22nd August and 20th September
____________________
HTML
VERSION OF JUDGMENT APPROVED
Crown Copyright ©
The Hon.
Mr Justice Keehan :
Introduction
The Law
"Having
considered the authorities to which I
have
![]()
referred,
and others, there is, in my view, a danger in placing too much emphasis on the phrase "last
resort"
used by Thorpe LJ and Coleridge J in
Re:
A. It is well established that the court cannot put a gloss on to the paramountcy principle in CA 1989, s 1. I do not
read
the judgments in
Re:
A as purporting to do that. The test is, and must always be, based on a comprehensive analysis of the child's welfare and a determination of where the welfare balance points in terms of outcome. It is important to note that the welfare provisions in CA 1989, s 1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court's authorisation to
remove
a child from
parental
care either to place them with another
relative
or in alternative care arrangements. Where, in private law proceedings, the choice, as
here,
is between care by one
parent
and care by another
parent
against whom there are no significant findings, one might anticipate that the threshold triggering a change of
residence
would, if anything, be lower than that justifying the permanent
removal
of a child from a
family
into foster care. Use of phrases such as "last
resort"
or "draconian" cannot and should not indicate a different or enhanced welfare test. What is
required
is for the judge to consider all the circumstances in the case that are
relevant
to the issue of welfare, consider those elements in the s 1(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."
Background
"Dad I am going to school, can you call my mum when your in Coventry see you then bye love you Ihaven't
seen you in so long"
Three weeks later, on 23rd May, H
sent a message to
his
father which, in complete contrast,
read
as follows:
"Sure you did, well it's always my fault you can't win with you and I give up, for all these years I've put up with you and your bullish blackmailing but I will no longer you want to see me? Well you can see me in court I'm not coming just to get drilled by you and yourfamily
and ganged up on just because you were the one being rude to me I did what I
had
to do if I wanted to pass my sats rather than you moaning at me constantly when I come down you moan at me all afternoon until I sleep for anything but when you'
re
an idiot to me it doesn't matter you threaten me 'smile for court/take my xbox time' you tell me to force my mum to do things and be rude to
her
and I was ill but you thought I was lying my mum tought me never to lie I
haven't
spoke you to you to concentrate well if my mum was amputated like you said then I will never talk to you again for what you said if I told my mum what you'
re
saying she would protect me from you and she would be angry at you"
This unfortunate and unhappy position was maintained until recent
months when
H,
once again, began sending WhatsApp messages and text messages to
his
father. The mother claims not to know what could
have
happened
in that three-week period to so dramatically alter
H's
view of
his
father; she said she
had
not questioned
him.
"Following on from your bullshit lies yesterday, and in case I cant get your backside in court beforehand,
you better get
H
to Cherwell on Friday 25th May. You screw that up and I promise you I will do everything I can to get
residency
I don't give a crap if you
have
![]()
had
your legs and arms amputated you
have
a legal
responsibility
to get
H
to Cherwell. Your in last chance saloon, so think about the judges words to you"
The fact that H
refers
to amputation in
his
message of 23rd May, can only mean the mother told
H
about the father's above email or she permitted
him
to
read
it.
Evidence
"PA is outgoing and gregarious, skilled in social interactions, socially buoyant, engaging others with infectious enthusiasm, attracting them intohis
causes, optimistic that others will view
him
favourably and treat
him
well.
He
builds strong
relationships
between
family
and friends, expending effort to achieve mutual warmth,
reciprocal
goodwill, congeniality and good cheer, strengthening
his
own self-esteem and sense of worthiness in the process. A concern for
his
own welfare may at times come at the expense of others, though PA feels especially good about
himself
when
he
![]()
has
been
helpful
to others, particularly when
he
is
recognised
or admired for
his
input."
"Takinghis
![]()
responsibilities
seriously, if progress is slowed, blocked or complicated, PA's
high
investment can precipitate intense frustration, and where criticism is directed
his
way,
reflexive
![]()
hostility
rather than openness to self-evaluation may follow. That said,
his
![]()
recent
experiences with
H
![]()
have
led to a much greater willingness to
reflect."
"Under duress,he
can insist on getting
his
way; a more turbulent and aggressive personality then emerging, and it is
hard
to decide
how
much of this
reflects
a temporary state rather than long term trait. At present, PA is fragile and
has
been easily provoked into
retaliatory
anger, with an undercurrent of defensive vigilance and
hostility,
![]()
ready
to deprecate those challenging
him."
"PA's frustration and lack of control overhis
![]()
relationship
with
H
then,
has
probably intensified any prior temperamental vulnerability, with the aggression noted in the documents a desperate attempt to control and
regain
power. On the matter of its degree,
however,
mother
reported
threatening messages, but the police disclosure document did not support this,
reporting
'aggressive, but not threatening', even though it did not 'excuse the aggressive nature' in expressing
his
frustration."
"Until now, PAhas
been so busy fire-fighting, that
he
![]()
has
struggled to acknowledge
his
own end of
responsibility
for any personal and
family
difficulties.
However,
![]()
his
despair at
H's
predicament now looking more set on a trajectory of loss of the paternal
relationship,
![]()
has
triggered more
reflection,
![]()
remorse,
sadness, and a wish to
re-establish
![]()
his
connection without interference."
"Having
described PA's childhood in wholly negative terms, TT described
her
own
family
![]()
history
in idealised superlatives 'absolutely great, very loving…a team… my
parents
could not live a day without each other… inspirational to my upbringing.' She
had
the 'latest dresses and toys…always dressed me up to look so pretty'. She said 'I was my father's favourite child out of the siblings' and
her
mother was 'over the moon about my achievements'. There were 'never any disagreements, fall outs or dull moments.' She and
her
siblings always played together with many toys, some
her
siblings 'studious…
head
buried in books'."
"I wondered, in light of this beautifulfamily
profile, why she was not living in the maternal
family
![]()
home
where all the
rest
of
her
![]()
family
are, benefitting from emotional and practical support and why she was the only child who would not inherit any part of the
family
![]()
home.
She assured me that this was culturally appropriate and that she
had
matured into wanting
her
own independent space with
H.
I confronted TT onhow
this idyllic
family
profile did not fit with the documented violent incident where
her
brother pushed their mother over, breaking
her
glasses, then punching TT (who somehow, through no fault of
her
own became involved) some 10-15 times. She said that at 'all other times',
he
was good, and they were close, and that 'when someone's a diabetic you gotta let them
have
their breakfast' and that in the case of
her
mum's part 'my mum
has
a bit of blood pressure'. Of
her
own injuries in the incident, she said 'I bruise very easily Dr Braier'."
"TT begins from a compensated position of poor self-worth, with self-doubt and jealousy,her
interaction with others framed within a constricted mind set. She
has
an obsessive concern that PA (and particularly
his
mother who deems inflences
him
unduly) are malevolent in nature. Beginning from a position of feeling put down by others, with a conmpensating need to prove
her
worth,
her
sense of right/wrong and good/evil lead
her
to view the paternal
family
all things bad. There is splitting, with idealising and denigrating; a problem of integrating angry feelings with love"
"Explanations of TT sustainingher
views of the father and transferring them onto
H
may indicate a wider problem of
reflective
function. Mentalising is the process we use to understand our own and others' mental states, intentions, feelings, thoughts, desires and beliefs. TT does not always make
reasonable
links between mental states and behaviour, creating
realities
![]()
reflecting
what she wishes or fears, rather than what others are likely to intend."
"She experiencesherself
as a victim, badly treated by others, rising above it in a saintly manner in
her
mind, but not in practice. TT constructs narratives based on
her
feelings, projecting
her
concerns and convictions out on the world, so that others' behaviours fit
her
own preconceived ideas and concerns.
There is difficulty shifting that perspective in light of any new evidence. TT'sreflective
function can be distorted, unintegrated and almost bizarre at times, particularly when applied to the paternal
family.
![]()
Her
narratives are designed to
reveal
![]()
herself
in the best possible light at the expense of any plausible understanding of the
relationships
around
her,
to the point where fantasy and ideals may impact on
her
grasp on
reality
at times.
People with such difficulty mentalizing may assume that what exists in their mindreflects
what actually exists in the world, so their internal ruminations can prevail
regardless.
With
reduced
ability to take the perspective of others, there is greater difficulty for TT in making coherent sense of the emotional world in a manner which can act almost like a sensory deficit.
TT disavows anyresponsibility
at all for what is
happening
between
H
and
his
father, suggesting it is entirely between them, with no personal role at all. What makes this bizarre is
her
failure to grasp that professionals will all
have
access to a documented
history
pointing to
her
own
historical
behaviour around contact as a more plausible explanation. This is the case, notwithstanding PA's own lack of sensitivity and loss of child-focus with argumentative/aggressive sibling-like behaviour with
H
in attempting to
resolve
matters."
"H's
current expressed wishes may
reflect
mother's difficulty in providing
H
with an accurate mirror of
his
own feelings as a child. She would
have
been exploring and
redefining
![]()
H's
experiences in terms of
her
own deeper concerns and needs, gradually changing
his
perception of what
happens
to
him
with
his
father (and possibly others) to fit
her
own view of
herself
as protector, so that she can continue to provide the special nurturing she feels
H
needs to feel safe and cared for.
This is likely tohave
made it
harder
for
H
to make coherent sense of
his
own world and
relationships.
![]()
His
world is now also populated by a
hero
and villain view of
his
![]()
parents,
and is likely to generalise into wider black and white thinking. There is a risk of
H
developing rigid schemas precluding
him
from making good enough sense of
his
social and emotional world to negotiate
his
![]()
relationships
successfully as
he
matures.
TT is unable to useher
professed principles of love, wisdom and tolerance,
reportedly
learned from
her
![]()
family,
to make sense of others' intentions. There
has
been no forgiveness or tolerance for any of the father's weaknesses to
help
![]()
H
sustain a loving connection when things go wrong."
"Expressively defensive, TT's personality contains paranoid and narcissistic features. She is vigilantly guarded and alert to warding off expected derogation and malice and possible deception. A very traumatic background of being badly burned and victimised byher
peers, whilst being cared for and made to feel special by
her
father,
has
led
her
to compensate with an undisciplined imagination of immature, self-glorifying fantasies, taking liberties with facts, create an idealised fantasy childhood, with grandiose ideas which can be irrational and flimsy, constructed to
redeem
lost pride, substituting for the painful
realities
she
has
endured"
"Ather
worst, TT is cognitively suspicious, construing innocuous events as signifying malice, with a tendency to magnify tangential or minor difficulties into proof of treachery or malevolence, especially
regarding
fidelity or trustworthiness. She is prone to feeling personally deprecated by innocuous actions and events arising from
her
own underlying discontented self-image. She may exaggerate
her
own misery by
recalling
past injustices and anticipating future disappointments, seeing
herself
as a misunderstood victim, unappreciated and demeaned by others.
Projection dynamicshowever,
mean that TT may be blind to
her
own unattractive behaviours and characteristics, whilst over alert and
hypercritical
of similar features in others. She actively disowns
her
undesirable personal traits and motives, attributing them to others, so that by means of this
reversal,
she can then justifiably act out
her
own anger, feeling vindicated."
"H's
presentation suggests that
he
is triangulated within
his
![]()
parents'
conflictual
relationship.
![]()
His
angry
rejection
of
his
father serves a function for
his
mother within the
parental
separation.
H's
own emotional needs, including
his
right to
have
a
relationship
with
his
father, is being ignored by TT in order to serve
her
conflict with PA.
H
is currently prioritising
his
mother's needs over
his
own, and no longer sees
his
![]()
relationship
with
his
father as bringing anything but pain and complication into
his
life. Such children can become unduly anxious, going on to develop a need to compulsively
rescue
those who seem weak or needy, with a
host
of somatising complaints themselves."
"H's
![]()
responses
from the Child Attachment Interview, perception of
parents
scale and the Bene Anthony
Family
![]()
Relations
test were all consistent with those typically seen in
alienated
children, with exclusively negative messages to
his
father and paternal
family
(no outgoing or incoming positive items at all, 9 negative outgoing, 5 negative incoming, 3 outgoing negatives to
his
grandmother, 1 incoming negative) and almost exclusively positive incoming and outgoing items towards
his
mother.
This lack of ambivalence makesH's
presentation more likely to be
alienation
than estrangement
resulting
from
his
father's behaviour.
His
![]()
response
is extreme and excessive, a presentation not seen in children whose
parents
![]()
have
been neglectful or abusive."
"When I told TT thatH
was presenting with the kind of extreme views typical of an
alienated
rather than abused child, and asked
her
to
reflect
on
how
this can be a
response
to
high
conflict when a child tries to make their environment feel safe, TT could not accept that I could
have
formed that view from
H's
own presentation.
She commented that PAhad
'got to you too, like Billie',
refusing
to give
headroom
to the possibility of an environment in which she
herself
![]()
had,
inadvertently or otherwise, been fuelling the very allegations she contended must be true, simply because
H
said them."
"TT feels proud and takes credit for many ofH's
achievements, but partly does so to display the father by contrast. She presents as distraught at the prospect of anything
happening
to
her,
lest
H
be left without a carer. She positions father as unreliable, neglectful, aggressive/
hot
tempered, a disorderly alcoholic, seemingly incapable of caring for
him
at all and
requiring
therapeutic input.
However,
she also spoke about father not being there for
H,
fearing
he
is suicidal and unable to cope with life because of
his
![]()
health.
I could not find evidence of a mental
health
problem of this extreme nature, neither in my assessment, nor in PA's medical notes."
"There is lack of insight into any possibility thather
beliefs could be self-serving or even
have
a psychological context, with no room for disconfirmation. TT presents with as if the consequences of a false negative (deciding there is no aggression/alcoholism, when there is) is much more dangerous than a possible false positive (deciding there is aggression and alcoholism, when there is not), ignoring the potential
harm
of
her
own actions and beliefs in colluding or co-creating these allegations and depriving
H
of
his
father, despite the Fact Finding saying they are unsubstantiated."
"Mother's opinions about the fatherhave
been transferring to
H
gradually over time, and are now complete, with
his
independent
rejection
of contact. Mother
herself
would say that this is the
result
of
H
seeing 'who
his
father
really
is', but
H's
presentation suggests it is more likely to
reflect
![]()
alienation.
Mother's views of the father are entrenched, and the prognosis for any shift in that view, if
H
![]()
remains
with
his
mother, does not look promising."
"Unfortunately, therapeutic intervention aimed at arestoring
![]()
H's
![]()
relationship
with
his
father whilst in the care of
his
mother is ill-advised, not only in light of the
research
evidence, but the failure of any previous threat of change of
residence
to change the course of this case or mum's stance, with the consequence that
H
now
has
no
relationship
with
his
father.
Even though there may be transient distress, particularly asH
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 the consequences of complete loss of
his
dad."
"H
is currently prioritizing
his
mother's needs over
his
own and no longer sees
his
![]()
relationship
with
his
father as bringing anything but pain and complication into
his
life. Development of such rigid schemas may, among other difficulties preclude
him
from making good enough sense of
his
social and emotional world to be able to negotiate
his
![]()
relationships
successfully as
he
matures."
"I am less optimistic about TT's capacity to ceasehostility,
even with support, as she is more deeply worried about PA and the risks she deems
him
to pose to
H,
seeing
herself
as an important (and sole) protective factor.
Her
thoughts on this are far less open to challenge, and it is therefore
hard
to see
how
TT will not continue to act to obstruct the
relationship
with the father, all the while believing she is doing so protectively and in
H's
best interests.
TT's conviction about the father's problems make continued allegations byH
more likely, as a
result
of which, the child is now
alienated
from
his
father. She would say that
H
![]()
has
finally seen who the father is as
he
![]()
has
matured and professionals
have
not so far managed to
reassure
![]()
her
on these concerns over the years."
"H
![]()
has
and is likely to continue suffering significant social
harm
with the current arrangements, exposed to conflict from both
parents
because of
his
mother's excessive unwarranted concerns, which
have
led to problems with contact. Mother is less
responsive
to
H's
emotional needs than she believes, blurring boundaries between the child's needs and
her
own, operating within a constricted, inflexible frame, where she is uniquely placed to love and protect
H,
seeing
him
as particularly vulnerable with
his
'unsafe' father as a
result
of
his
special needs.
Her
views and actions, as well as the father's unhelpful and intense attempts to convince
H
of 'the truth',
has
![]()
resulted
in dysfunctional attachment strategies in
H
of anxious conformity, psychosomatic symptoms, triangulation within
his
![]()
parents'
conflictual
relationship
and rigid schemas. A child's
alienation
from one of
his
![]()
parents,
in the manner which
has
now finally
happened
to
H,
is associated with a
higher
risk of long term problems of poor mental
health
and
relationships."
"Motherhas
implied that
his
father is unsafe, exposing
H
to inappropriate
parental
conflict, under the guise of the same protection, not distinguishing between
her
own emotional needs to be the only
parent
![]()
H
needs and
his
![]()
real
emotional needs for
his
father. TT was bullied as a child and as an adult, felt demeaned by
H's
father and
family.
As such,
however,
she
has
unwittingly encouraged
H
to see
himself
as a bullied victim of
his
father, so as to protect
him.
I do know that she loves
H
deeply and is not consciously prioritising
her
own needs over those of
her
child, so that she may find it
hard
to
recognise
the
harm
she is creating, and may feel offended and upset by what I am saying."
"As Ihave
already said,
H's
presentation suggests that
he
is triangulated within
his
![]()
parents'
conflictual
relationship.
![]()
H's
own emotional needs, including
his
right to
have
a
relationship
with
his
father, is being sacrificed in
his
angry
rejection
of
his
father, which serves a loving function for
his
mother within the
parental
separation."
"H
completely left
his
father out of
his
description of
his
![]()
family,
as if
he
did not exist, identifying many negative experiences, minimizing, dismissing or making empty any positive experiences
he
![]()
had
with
his
father in the Child Attachment Interview.
He
also produced exclusively negative views of
his
father on the Perception of
Parents'
Scales and Bene Anthony
Family
![]()
Relations
Test."
"Cases like thisrequire
practitioners with considerable experience and specialised training in the area of implacable
hostility
and
alienation,
within the legal framework, with judicial oversight, with
restoration
of
H's
![]()
relationship
with
his
father as the primary consideration, to protect
him
from further
harm.
![]()
There are very few practitioners able to provide this kind of work, whichrequires
![]()
residential
therapy with
H
and
his
father in the
family
paternal
home,
in the first instance, over at least 4 days and 4 nights, with a 12 week follow up of therapy sessions. I
have
provided two possible sources."
"Ihave
no evidence from my assessment that this mother is well placed to use any psychological work which would
help
change
H's
current perceptions or predicament. She genuinely feels that
H
![]()
has
arrived at a place of protecting
himself
from problems in
his
father which are serious enough to warrant
him
keeping away. Any mmotivation to participate therefore needs to be externally driven by the Court."
"The probability of TT being a genuinely active or willing participant in a process ofreuinification,
where she can accept
her
own contribution, even inadvertent, is currently very low. The therapist will need to evaluate the extent to which she can is able to manage in practice. I
hope
she can because ultimately, it is not going to be
helpful
for
H
to swap in a
heroes
and villains scenario and
he
needs to
have
both
his
mum and
his
dad in
his
life."
"It is very likely now that ifH
![]()
remains
with
his
mother,
he
will not enjoy a
relationship
with
his
father, so that a transfer of
residence
is, sadly, the only feasible route to
re-unification
at this stage."
i) the failure in her
report
to raise the issue of a lack of time to complete
her
enquiries or to write the
report;
or
ii) for the change in the recommendations
now made.
D accepted she had
solely focused on the father's role and
had
not addressed at all the mother's role. In the light of Dr Braier's
reports,
this is a startling and serious omission. When asked why she
had
not instructed counsel at the beginning of this
hearing
to
request
an adjournment of this final
hearing,
she could not give a cogent answer.
i) she sought to sidestep the question every time counsel for the father put the issue of fault to her;
ii) on each occasion whilst she said that she accepted some blame she then proceeded to give a lengthy catalogue of the alleged failings of the father and of his
family;
and
iii) finally, she said to the court "I do not know what answers you want from me" - to which the simple answer is I expected her
to tell me the truth.
Analysis
i) her
denial of speaking with
H
about the father's email of 25th May is false.
How
else would
H
have
known the contents of it? The father did not copy
him
in to that email;
ii) the mother's assertion that she described her
concerns about the state of the father's mental
health
in the past tense and not as appeared in Dr Braier's
report
in the present tense. I am satisfied that Dr Braier would not
have
made such an error without acknowledging the same; and
iii) her
oft
repeated
claim that she accepted some of the blame in the breakdown of contact was undermined by the contrary accounts which dominated
her
evidence that the father was entirely to blame.
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
fathers 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.
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.
Conclusions
i) the mother has
alienated
H
from this father;
ii) she does not support the father having
a role in
H's
life;
iii) the absence of the father from H's
life
has,
is and will cause
H
emotional and social
harm;
iv) if H
remained
in
his
mother's care, the prospects of
H
having
a meaningful
relationship
with
his
father are, at best, poor; and
v) the only means by which H
can enjoy a
relationship
with both of
his
parents
is to transfer
residence
to the father; nothing else will do in the welfare best interests of
H.