Family Procedure Rules
The Family Procedure Rules are set of rules that guide how family proceedings in the UK high court, county courts and magistrates’ courts should run.
People who are representing themselves in court for matters relating to their child may benefit from reading these rules to help them understand the court process and the types of things they should be asking for e.g. expert witness by a Clinical Psychologist, access to passports and fact finding where domestic abuse has been alleged.
Emotional Cutoff and the Law
In the UK most law is set by Parliament by way of legislation. Our senior courts can also change or clarifying the law through their judgements, thereby setting a precedent which other courts are bound to follow or apply in later cases, this is known as case law.
Legislation
The following legislation; exists to protect children from psychological abuse in the UK.
Section 1 of the Children and Young Persons Act 1933
it is a criminal offence for someone aged 16+ to be cruel to a child for whom they have responsibility. The act was amended by section 66 of the Serious Crimes Act 2015 to include psychological injury/suffering. If broken, parents are subject to criminal trial with penalties which include fines and imprisonment.
To date, there is no official record of a parent who has manipulated a child to emotionally cutoff from a normal range parent being prosecuted under this law. The severe psychological injury/suffering of approximately 18 000 children in the UK is ignored, Criminal law isn’t recognised by Family Courts so to prove it would require a trial in a criminal court, with evidence which includes a psychological assessment. Judges in Family Court can grant requests for psychological assessment and where child psychological abuse is found in these cases it would remain in Family Court but assessment is not ordered consistently despite the breadth of case law which cites it is best practice.
Asking the local authority/children’s services for support with child psychological abuse in the context of family separation is hit and miss too. Few Social Workers are trained to recognise this form of abuse and the harm it can do to children. Of all forms of abuse, local authorities are less likely to take action where there is suspected emotional abuse despite the fact childhood psychological abuse is as harmful to victims as sexual or physical abuse.
Case Law
The following is a sample of UK judgments relating to family separation and the rejection of a parent by a child. They may be useful to reference in position statements made to a judge in Family Court.
Re S Re S (Parental Alienation: Cult) [2020] EWCA Civ 568
This case clearly lays out the law concerning parental alienation in sections 7 to 13. Courts must do everything possible before severing a direct relationship between parent.
“In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance 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. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. 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. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.”
L (A Child) [2019] EWHC 867 (Fam)
Transfer of residency from mother to father after mother and maternal grandmother made it difficult for contact to take place over a court case spanning years. This judgement is significant for a number of reasons. Firstly, because it gives direction that a child’s stated wishes and feelings are not more important than their personal welfare. Secondly, that transfer of residence to a normal range/safe parent is not a weapon of last resort but a child protection measure and thirdly because there was no need to have to prove implacable hostility or “parental alienation”, the emotional abuse inflicted on the child was sufficient for a transfer of residence.
“Whilst having the greatest respect for the two judges who gave judgments in Re: A, I would wish to distance myself from the language used insofar as it refers to a decision to change the residence of a child as being “a weapon” or “a tool”. Whilst such language may be apt in discussion between one lawyer and another in the context of consideration of the forensic options available to a judge who is seeking to move a case on, such language, in my view, risks moving the focus of the decision-making away from the welfare of the child which must be the court’s paramount consideration… 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…”
Sir Andrew McFarlene, President of the Family Division
There is, therefore, an express duty placed upon a guardian in a case such as this to report on the child’s wishes. However, in my view, that duty must be tempered by the overarching requirement to afford paramount consideration to the child’s welfare.”
D (A child : parental alienation) [2018] EWFC B64
Judge finds mother has deliberately alienated child from his father over years of litigation where a number of false allegations were made.
Re C (A Child) [2018] EWHC 557 (Fam)
High Court upholds decision for transfer of residency from mother to father after mother made it difficult for contact to take place over a court case spanning years.
J (Children) EWCA Civ 115 [2018]
Judiciary failed to follow procedure in ordering a without notice molestation order for too long and by not instigating fact finding with regards to allegations made by mother. Because of the age of the children (18, 16 and 11) and the negativity they held towards their father, no contact was awarded.
Neutral Citation Number: [2018] EWFC 36 Case No: SA16C00956
Mother’s application to discharge care order in a public law case.
“The court must be on guard against subtle and insidious forms of social engineering (as to which, see also para 180 of Lady Hale’s judgment) in favour of new, “better” parents. Rather, the court must recognise that the state has no right to deprive a natural parent of the right to bring up his or her child unless it can be shown that the exercise of that right would “endanger” the child’s moral or physical health.”
M (Children), Re [2017] EWCA Civ 2164
Transgender woman was denied direct contact with her children on the basis that it might cause her children to be ostracised by their community and cause them psychological harm. The Appeal Court referred the case to the High Court.
“In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.”
H (Children) [2014] EWCA Civ 733
“I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. The recent decision of the Court of Appeal, Re M (Children) [2013] EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. 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.”
Mrs Justice Parker
M (Children) [2013] EWCA Civ 1147
Father appealed order refusing father’s contact with his three sons, aged 7, 5 and 3.
“… significantly in this case, and non controversially inter partes, the court must address Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom in respect of mother, father and each child; those ‘Convention’ rights undoubtedly engaged by the prospective court order. The child’s rights take priority above those of his parents. See more recently YC v United Kingdom (2012) 55 EHRR 967 at para 134.”
“I conclude that the appeal should succeed on the ground that whilst the judge describes Dr Bester’s evidence as “balanced and focused on the children’s psychological well being” and that it would be “highly desirable” if contact “can be achieved without undermining other aspects of their welfare”, she fails to adequately address why the children’s safety and the management of mother’s anxieties cannot be achieved under any circumstances of supervision.”
“… there is no question but that an order that there should be no contact between a child and his non residential parent is draconian.”
YC v United Kingdom (2012) 55 EHRR 967
Mother appealed placement of child in care as violation of UN Article 8 as a result of the refusal of the domestic courts to assess her as a sole carer for her son. This case confirms the state must do everything possible to preserve familial relationships.
“… the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).”
W (Children) [2012] EWCA Civ 999
Appeal by father against an order for no contact to his daughters aged 9 and 6.
“…I would refer to the pithy, but nonetheless correct, distillation of this approach in the judgment of Ward LJ in Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 at paragraph 38 where it was said that “contact should not be stopped unless it is the last resort for the judge” and (paragraph 36) until “the judge has grappled with all the alternatives that were open to him”.
“Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be “a very big ask”. Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.”
Doncaster MBC v Haigh, Tune and X [2011] EWHC B16 (Fam)
Mother lead a public campaign based on false allegations against father and encouraged daughter to make false allegations of sexual abuse that never happened. Court ruled that details should be made public to counteract the damage done to father’s reputation.
Re E (A Child) [2011] EWHC 3521 (Fam)
“…it is extremely important, both for courts and advisers, to try to spot at an early stage those cases which have the hallmarks of difficulty, let alone intractability about them.”
“I am entirely satisfied that the court could not justify at the present time abandoning the quest for contact. It seems to me that the court is confronted with circumstances in which this father has something to offer to this child. It may be pretty limited, but he has something to offer to this child and that is an important aspect, by no means the most important, but it is an important aspect in this child’s long term welfare.”
TE v SH and S [2010] EWHC 192 (Fam)
Father won appeal for transfer of residence from mother because she had obstructed contact.
“… it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value. They need to be assessed in the light of S’s age and understanding. The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them.”
“I am satisfied that S has suffered emotional harm. I am also satisfied that if he remains alienated from his father he is at significant risk of suffering the kind of psychosocial harm (behavioural and emotional disturbance, academic under-achievement, relationship difficulties) described Dr W in his evidence…”
Re S (Transfer of Residence) [2010] 1 FLR 1785
Court ordered transfer of residence from mother to father after a child had been subject to court proceedings for almost a decade. The child was in foster care and was having contact sessions with his father. On witnessing the child’s emotional distress at contact, the Guardian felt a change of residency was not in the child’s interests. Two experts on parental alienation disagreed on if the transfer should take place or not. Due to the psychological harm experienced by child, father agreed residency should remain with mother.
“…it is essential that the court has the benefit of professional evidence from an expert who has personal experience of working with alienated children”
S (Children) [2010] EWCA Civ 447
Intractable contact dispute where father argued that by making up to the children to decide if they wanted contact or not was tantamount to having no order at all.
“…what about his wishes and feelings? My response to that is that they are trumped by his welfare.”
“…whilst it seems on the face of it to conform with the children’s wishes and feelings, in reality it burdens them with a responsibility that they should not be asked to bear at their respective ages of 12 and 13.”
“It is perhaps with the advantage of hindsight regrettable that a consultant child and adolescent psychiatrist has not been previously introduced into the case.”
Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056
Appeal by father against indirect contact and seeking to have details of child’s school.
“…as the hearing progressed I became more and more concerned that the true underlying issue has not been fully or properly dealt with in a way which enables me to be satisfied that the judge has grappled with all the alternatives that were open to him, the most obvious of which was fully to explore, with the help of the guardian and through examination and cross-examination of the parties, the extent to which they would be willing to subjugate their intense personal feelings, their passionate conviction that each of them is right, to admit the possibility that they may be wrong, to admit the possibility that change could come about and to demonstrate that by undertaking some form of counselling.”
“It is enough to make any ordinary man just a little bit angry, but that anger has to be contained, and sadly this father at the moment shows no capacity for containing that anger; hence the need for him to subject himself to what may be the humiliation of counselling and therapy, in order that he might begin to see how the other side view his behaviour and having some understanding of what the other side think of him is vitally important, and it enables changes to be made where reasonable changes are necessary. So that was not fully explored at this hearing, nor was the mother, it seems, sufficiently challenged by her need to undergo some form of therapy and counselling, her need to participate in a programme of help which might go some little way to assuaging the father’s implacable conviction that she is a woman with severe mental problems such as spill over to the detriment of his children.”
“In my judgment contact should not be stopped unless it is the last resort for the judge…”
“…I have concluded that the learned judge failed to bear in mind that important element of the case, the help that could be given through counselling and, in failing to take into account that relevant factor…”
G (A Child) [2006] EWCA Civ 348
Appeal by father because the court had not per sued all possible avenues to re-establish direct contact.
“Whatever the difficulties, however scant the prospects of success, the courts must not relent in pursuit of the restoration of what had been a natural relationship between father and daughter, absent compelling evidence that the welfare of the child requires respite.”
RE S (Children) [2004] EWCA Civ 597 2 FLR 710
Mother was implacably hostile to contact between father and child.
“It is a case in which the passage of the years has almost become conclusive and should not be allowed to become conclusive without a major judicial effort to rescue for these children a relationship with their father before it is too late.”
T (A Child) [2002] EWCA Civ 1736
A case where mother, maternal grandparents and a scorned paternal uncle made allegations against father which contributed towards severance of his relationship with his child. Father did eventually develop a substance abuse problem and was seeking to overcome the problem. The appeal was granted to give psychological support for the child and an opportunity for father and child to reconnect.
“Surely he should have addressed the prima facie case created by the chronology. Surely he should have considered whether the mother was the unwitting agent of P’s malignity. Surely he should have considered whether the maternal family environment was a contributing factor.”
RE: M (CONTACT: WELFARE TEST) [1995] 1 FLR 274 AT 278-9, CA
“Where, as in this case, the court has the picture that a parent is seeking, without good reason, to eliminate the other parent from the child, or children’s lives, the court should not stand by and take no positive action. Justice to the children and the deprived parent, in this case the mother, require the court to leave no stone unturned that might resolve the situation and prevent long-term harm to the children.”
