Parenting post separation is undoubtedly a challenge. Physically sharing your children with someone who makes you feel angry, distrustful or impossibly hurt is incredibly difficult. However, in most cases, people can see the importance of their children having a positive and loving relationship with both of their parents and are prepared, with advice and support to work through some very tough emotions to ensure their children cope as well as possible with the changes to their family.
Implacably hostile parents
Those of us who specialise in long running and complex children disputes deal with those parents who cannot see any benefit to their children maintaining a relationship with the other parent after separation. These parents are said to be ‘implacably hostile’ to the relationship or actively alienating a child from the other parent. In reality, this means that one parent will go to any lengths to prevent or undermine a child’s relationship with the other parent.
The reasons for implacably hostility are many. It can be control, revenge or even, fear. It can be difficult to make the distinction between bad partner and bad parent. Often the continuing contact (however minimal) caused by co parenting post separation can just be too painful and parental wishes and feelings override a child’s needs. In many cases, the hostile parent will genuinely believe a child would be better off with no relationship with the other parent.
Putting the interests of children first
So how best to deal with cases where it is either clear or suspected that a parent is undermining a child’s relationship? It is tricky as often in these cases a child’s need to have a meaningful relationship with both parents will be in direct conflict with his or her expressed wishes and feelings which have been influenced by the hostile parent. It is essential not just to tackle the hostile parent’s behaviour but to support the child and promote a relationship with both parents without causing further trauma or distress. As family lawyers we tend to dread the Court coming to a conclusion that, however wrong is it a child has been manipulated, forcing contact on a child who does not want it will cause more harm than good.
Legal tactics for defeating implacable hostility
My experience tells me the following are vital:
- Enforce all breaches of orders – do not let this conduct continue under the radar. If the Court doesn’t know about it, it cannot do anything about it and early intervention is crucial
- Judicial continuity – the same judge hearing the same repeated protestations and allegations is likely to have a firm grasp on credibility and the willingness to promote a relationship between parent and child
- Findings of fact - if there are indistinct allegations hanging around, clear them up and prevent them becoming a distraction from the real issues
- Involve professionals as soon as possible – whether this is separate representation for a child, support for the child and parents via a befriending or family assistance type order, involving an independent social worker to support contact and report if CAFCASS or Social Services involvement will lead to delay and, if there is evidence that a child is traumatised, obtain a psychiatric report which can not only consider whether parental alienation is a factor but provide practical guidance on how best to support the child whilst the relationship is reinstated.
Even if one parent is found to be implacable hostile to a child having a relationship with the other parent, it can be complex to remedy. Committal to prison for repeated breaches of a child arrangements order is rarely in the interest of a child and therefore very unlikely. The Court can order that a living arrangements order is transferred so a child lives with the other parent but this is not always appropriate or possible.
The reported case of Re O (A Child) (Fact Finding) in which I was instructed by the father produced findings that mother’s inability to support the child’s relationship with father (a) amounted to significant emotional harm and (b) that the s31 threshold criteria was met. Therefore, mother was given a very clear message by the Court that, if she did not change her behaviour and support the relationship between father and child, the full range of the Court’s powers would be considered and that these extended to public law care and supervision orders as well as the remedies above.
With much political discussion at present about what constitutes ‘emotional abuse’, it is interesting to consider that the Court will accept that an inability or unwillingness to promote a relationship with the other parent can and will cause a child significant emotional harm to the extent that the s31 threshold criteria for care orders is met. And as Fathers’ and Single Parents’ groups push hard for its inclusion as emotional abuse in legislation, could we see the time when a parent who systematically alienates a child from his or her other parent is guilty of a criminal offence?