In this case (re L [2019] EWHC 867 (Fam)) the Court transferred residence of the child from the alienating (?) mother to the father. The mother appealed. The appeal was dismissed. There is some discussion about whether and to what extent the mother’s behaviour could be described as PA, or implacable hostility. In my view this is a red herring really. The point is that the mother obstructed contact and turned the child against the father for no reason. It was found that the mother had harmed the child emotionally, something she did not challenge, saying that she had ‘got it wrong’ and that she needed help.

There are a couple of observations made by the judge that are particularly apposite. Firstly, paragraph 59:

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 “

This is a great point, isn’t it?

Next, at para 66:

Further, I accept the submission of Mr Veitch and Ms Musgrave which focusses on the word “ascertainable”. In the professional opinion of the Guardian, it was not possible to ascertain L’s wishes and feelings on the central issue without causing him emotional harm. It was also the view of the Guardian that L’s position was such that any expression of wishes would be unlikely to represent his true wishes and feelings, and, to that extent it would not be possible to ascertain the child’s genuine view.

Again, the point is made (as Mrs Justice Parker did in Re H 2014) that the child’s best interests are not necessarily what the child says he wants! That, indeed, is the point!

One thing I am sure of, is that a robust decision like this will lead to fewer contact applications and less court time, because invariably narcissistic parents obstruct contact, and parents that are pathologically normal do not. On balance, a child is much more likely to be able to see both parents if the TP has control of contact. Whenever the AP has control over contact, problems will continue and repeated applications will need to be made…

Published by neopolitic

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