What appears below is an amalgam of three cases – all concerning ongoing litigation about the same child. After more than a decade of litigation father is forced to give up on seeing his son again, and leave the court as just another ‘tearful and wholly-deserving father’. For my money, this is probably the most disgraceful family law case there has ever been.
Case 1 – TE and SH and S  EWHC 192 (Fam)
This case was decided in January 2010 and concerned a child, ‘S’ who was, at the time, 11 years old. The judgment concerns the father’s application for S’s residence to be changed. This case had been before this judge several times before – the father issued his first application for a contact order in June 1999.
The judge says:
‘141. Having listened to the father as he gave his evidence, he impressed me as a devoted father who is committed to his son. At times during his evidence he was quite tearful. He is clearly devastated at the breakdown of his relationship with S. He said, movingly, that this present situation isn’t just S’s tragedy or his tragedy but is a tragedy for S’s siblings, his grandparents, his cousins, his aunts and uncles. He said that ‘if ever we go out for a meal there is always an invisible guest there’.
‘142. However, it is also clear that the father has great difficulty in foreseeing the consequences of his actions. For example, whilst I have no doubt that his decision to seek DNA tests was, as he says, intended to underline to the mother the fact that he is S’s father, with all that that implies, I equally have no doubt that he gave no thought to whether that step might be perceived by the mother as a hostile step implying a slur on her character. In other words, he was unable to foresee that a step which he hoped would have positive consequences might in fact have very negative consequences. Similarly, his applications for permission to change S’s name and for him to be educated in the independent sector, no doubt both worthy aspirations in his mind, were likely to have and did have a negative impact on his relationship with the mother. Given that contact was at last progressing reasonably well at the time he made those applications, it is unfortunate that the father did not have the foresight to contemplate the damage that might be caused by making those applications.
‘143. The events of early January 2006 provide the most powerful testimony to the father’s inability to foresee the consequences of his actions. Although the description of his conduct as being ‘over-zealous’ still rankles with him, I am satisfied that it is an apt description. The repercussions have been profound. Having over the years put so much effort into successfully establishing a meaningful relationship with his son, all of that good work was undermined by his over-zealous response to S’s apparent disclosures. ‘144. That said, it would not in my judgment be either fair or appropriate to conclude that in terms of the complete and utter breakdown in the contact arrangements the father is wholly responsible.’
This kind of analysis of the father’s behaviour is wholly reprehensible. How the fuck do you expect a father to behave in these circumstances? Dad here is being marginalised, his relationship with his child deliberately derailed and frustrated, and then he’s criticised for losing his rag a bit now and then. I am tempted to wonder how old Cliff would react if we took his kids away from him, denied him contact with them, and messed him about for YEARS over contact issues. If any father reacts to such treatment with calm Bjorn Borg-like Swedish equanimity we would surely regard that father as a very weird fish.
Of the mother, Judge Bellamy is critical, enumerating several instances where mother frustrated contact and concluding:
Whereas I have found that some of the father’s actions have been carried out without any insight at all into the likely consequences, I am in no doubt that this mother does have insight into the likely consequences of some of her actions. In my judgment, when taken together, and in the context of the whole of the evidence before me, all of this strongly suggests that in truth this mother has no real wish to see contact restart.’
This was in 2007. Because of Bellamy’s limp-wristed approach, the matter came back to court and in 2009 indicated of mother that
“there are a number of factors in the evidence that lead me to believe that the mother is still not as enthusiastic about reinstating contact as she would have me believe. I list just six of them:
(a) For three months after my earlier judgment, her continuing refusal to accept voluntary maintenance pending the making of a new CSA assessment.
(b) Her response to S’s behaviour when Dr W visited her home.
(c) With respect to the planned encounter at the place of worship, her telephone call to Mrs K, rather than to the father, to discuss S’s distress prior to this event; her
decision to invite the father to the place of worship notwithstanding her awareness of her own father’s clear view that it was not the done thing for her and the father to be seen together at the place of worship.
(d) With respect to the planned encounter at the cross country event, her failure to tell S’s Head Teacher that she had invited the father to attend the cross-country race; her delay in telling S about this event; her decision to invite the father to this event notwithstanding her understanding of the importance of that event both for S and for the school; her attempt to discuss S’s adverse reaction with Mrs K on the morning of the event; her failure to discuss his reaction with the father.
(e) With respect to S’s education, her rejection of the father’s request that he should attend Parents Evening with her; her failure to consult the father about choice of secondary school; her general failure to recognise the significance of shared parental responsibility in matters relating to S’s education.
(f) With respect to indirect contact, her failure adequately to reprimand S for his rudeness to the father during telephone conversations and for his failure to acknowledge gifts received from his paternal family.
And yet that
Having said all of that, I do accept that the mother has made some progress since the last hearing. I do accept that she has tried, though I am not wholly convinced that her intent has been to commit to making contact work. It is equally possible that her efforts have been intended to persuade the court that she has tried her best to make contact work.’
Astonishing. How many times does old Cliff have to be told before he gets it? And in the meantime, the alienation deepens, as we shall see. Is he just S-T-U-P-I-D?
Two experts were involved, a social worker called Ms K from NYAS (useless, woolly-headed and over-involved) and a ‘Dr W’ whose evidence, broadly, was accepted by old Cliff. I don’t know, but I am willing to bet that Dr W was Dr Kirk Weir, a renowned expert in the field and well-known to my own judge, judge Stewart, apparently. Dr Weir is excellent though unfortunately now retired.
But he seems to have bottled it – Dr Weir said:
‘I would support a change of Residence if there was evidence that S suffered emotional harm and/or abuse as a result of care given by the mother. I would not regard the presence of “alienation” in S as sufficient to conclude that the mother caused emotional harm and/or abuse.”
“On 13th December 2007, by consent, I made a residence order in favour of the mother. The father had indicated through his counsel on the first morning of that hearing that he would consent to that order. I said that I had ‘no doubt it was right for the father to agree to a residence order in the mother’s favour’ (paragraph 145). However, it was clear that the father’s consent to that order was, in one sense, tactical in that he hoped that by making it clear that he was not intending to disturb the residential status quo S and his mother would feel more secure and that S’s approach to contact may soften. In her evidence the mother herself had said that the making of a residence order would ‘go a huge way to help S to feel secure’ (paragraph 112). Despite the making of the residence order in favour of the mother, S’s approach to contact did not soften.”
This is a paradigmatic error. And one that I made myself, and later on advice from a barrister, Gemma Bower. That is, that by ‘backing off’ APs see reason and ‘soften’ or that judges see you more kindly as having taken the high ground – THEY DO NOT. Your ‘backing off is not perceived as reasonableness, but as weakness. Problems with contact increase, not decrease, and the alienation deepens. Perhaps I can be forgiven for my naïveté but Gemma Bower can’t and nor can old Cliff.
Judge Bellamy goes on to accept the summary of his earlier findings by F’s lawyer:
“Miss Ball has gone through my earlier judgments with care and on the basis of that analysis she submits that the court has already reached a number of significant conclusions. She sets out seventeen in total. They may be summarised, briefly, as follows: that the mother is more culpable than the father for the breakdown in contact and the failure to restore it; that whereas the father has lacked insight the mother has been well aware of the likely consequences of her actions and has behaved wilfully; that the mother’s behaviour has created antipathy and coloured S’s thinking about his father; that although in recent months there have been some signs that the mother may have been attempting to change course, the reality is, as she herself admitted in evidence, that she has now lost control of S; that the consequence of all of this has been that S has become alienated from his father; that S has been emotionally affected by being at the centre of parental conflict and is at risk of future harm if he is unable to enjoy a meaningful relationship with his paternal family; that the court is pessimistic about the mother’s ability to change.”
The judge then goes on to accept summaries of his findings regarding the mother, adduced by the mother’s barrister:
“She says that
(a) What is equally important is the findings that the Court has not made as these must be considered when balancing all factors of the welfare checklist by way of example. (sic)
(b) The court has not found that the mother is responsible (or solely responsible) for the alienation of S from his father.
(c) The court has not found that S suffers any disadvantage in any other areas of his life.
(d) The court has not found any exposure of S to distorted belief systems or false allegations from the mother.
(e) The court did not make its order for sibling contact based on any assertion by the mother, or assumption by the court, that this would lead on to contact between S and his father.”
The mother’s lawyer goes on and
“points to the likely distress that would be caused by moving S from the care of the parent who has been his primary carer for the whole of his life and with whom he has a strong bond. Such a move would mean not only change of carer but also change of home, change of school, loss of friends and loss of the social and sporting life he enjoys at present. He will have to build a new life living with a father whom the court has found lacks insight and empathy. She submits that such destabilisation and disruption of S would come at a heavy emotional and psychological cost. It would involve the court taking a substantial (and, it is implied, unreasonable and inappropriate) risk.”
But the judge goes on
“I am satisfied that S has suffered emotional harm. I am also satisfied that if he remains [my emphasis] 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 and to which I referred earlier in this judgment.”
The judge goes on to say that the court must balance all of the factors in favour of maintaining the status quo, with the factors in favour of a change of residence. He says this:
- On the side of the scales representing the status quo, I place eight factors:
(1) The parents had separated before S was born. The mother has at all times been S’s primary carer. Even during those years when contact worked well, the longest period of time that S has spent in his father’s care is 15 days.
(2) The evidence demonstrates that S is doing well in every respect both at home and at school. I have found that the mother’s physical care of S is of the highest order. Although there is no evidence from S’s present school, to which he moved in September, the evidence from his Junior School was that he was doing very well both academically and in sport. Save for her relationship difficulties with the father, which have led her to be (to a greater or lesser extent from time to time) hostile to S enjoying a meaningful relationship with his father, the mother is otherwise bringing up a son who is flourishing.
(3) S continues to express a strongly held view that he wishes to remain in the care of his mother. That has been his position consistently since direct contact stopped in February 2006. No stone has been left unturned in trying to encourage a change in S’s position. Those efforts have been unsuccessful. He is now rising 12 years of age. His wishes and feelings are entitled to respect.
(4) Direct contact last occurred in February 2006. S has not been to his father’s home for almost four years. The closest he has come to having direct contact with his father, at the cross country race in March 2009 (see paragraphs 54 to 69 of my judgment of 15th June 2009), was a complete failure.
(5) Given that there has been no direct contact for almost four years and given, too, the distress which S has shown at some of the steps that have been taken to try to break the contact deadlock, it can reasonably be anticipated that a change of residence would be likely to cause S significant distress. Dr W’s opinion is that such distress is likely to be short-lived. However, I accept that it is likely that that distress would lead to management difficulties in effecting the transfer. Those difficulties could conceivably require the use of some degree of force in order to achieve the transfer. It is likely that the distress would continue in the early days following transfer.
(6) A move to live with the father would involve not only a change of primary carer but a significant reduction in the level of contact that S has with members of his maternal family and in all probability the loss of school friends. It would also involve the disruption of a change of school after just one term at his present school.
(7) The father works more than an hour’s journey away from his home. It is clear that on weekdays substantial responsibility for caring for S would be delegated to his stepmother and to his paternal grandparents.
(8) I have expressed concerns about the father’s lack of insight and empathy. Unless the father is able to make real changes in this area it is likely that this could undermine S’s placement with him.
- On the other side of the scales I place the following seven factors:
(1) I have found that S has already suffered emotional harm. I have accepted evidence from Dr W that S has become alienated from his father. I have also accepted Dr W’s evidence that there is a risk that the long-term consequences of alienation and estrangement from his father could be damaging to S’s welfare. That damage could include the kind of psychosocial harm (behavioural and emotional disturbance, academic under-achievement, relationship difficulties) described by Dr W in his evidence and to which I referred earlier in this judgment.
(2) Although S has very clearly stated that he does not wish to see his father (and has called him ‘a monster’ and has said that he ‘hates’ him) I have accepted evidence from Dr W that as a result of the alienation not only are those views irrational they are also unreliable. In my judgment of 15th June 2009 I found that video footage clearly showed S to have been relaxed, happy and at times quite animated during his stay with his father in January 2006. I have noted some recent signs that S’s expressed wishes and feelings may not genuinely reflect his true wishes and feelings.
(3) I am satisfied that the father is being sincere in the assurances he gives concerning the maintenance of S’s relationship with his mother and maternal family in the event that S were to live with him. Given all that the father has faced over the last ten years, one might have expected him to be angry. In fact, as Dr W noted, he is, quite simply, very sad. I have detected no sense of malice or ill-will towards the mother. The father has pursued these proceedings as determinedly as he has because he cares deeply about the welfare of his son. In my judgment the father would be in a better position to maintain the mother’s relationship with S than vice versa. I am confident that the father would prioritise the need for S to continue to enjoy a close and loving relationship with his mother.
(4) I am satisfied that the father, together with his wife and parents, would be able to meet S’s physical and educational needs to the same standard as that provided hitherto by the mother.
(5) Although in my judgment of 15th June 2009 I accepted that the mother had made some progress since the previous hearing in November 2007, I was not wholly convinced that her intent had been to make contact work. I expressed the opinion that it was equally possible that her efforts had been intended to persuade the court that she had tried to make contact work. I said that my concerns about the mother had ‘lessened only slightly since December 2007’. That remains my position.
(6) Previous orders of the court have not been effective in re-establishing direct contact. I do not share Mrs K’s optimism that indirect contact may in due course lead to a resumption of direct contact. If the status quo remains and the court proceedings come to an end I consider the prospects for re-establishing any form of contact between S and his father to be remote. In my judgment the overwhelming probability is that S will have no further contact with his paternal family unless, in later adult life, he himself seeks it out.
(7) Following on from that last point, the mother has accepted that she has lost control of S. I am confident that even if the mother were motivated to provide real encouragement to S to see his father it is unlikely at this late stage that that encouragement would bear fruit. In any event, I am not confident that the mother is genuinely motivated to provide that encouragement.
The learned judge concludes:
“The decision for the court is a profoundly anxious and, as I now accept, finely balanced decision. Some may regard a decision to move S as being too bold and inappropriately risky. Mrs K has referred to it as ‘an experiment’. Others may regard a decision not to move him as failing to grasp a nettle that has cried out to be grasped for far too long. I have taken time over Christmas and New Year to reflect on my decision. Having reflected I have come to the conclusion that, traumatic though it may be in the short term, it is in the best interests of S’s long-term welfare for him now to live with his father. I so order.”
Case 2 – the Appeal
This decision was appealed by the mother.
What follows is the result of that appeal, heard in the Court of Appeal by LORD JUSTICE THORPE, LADY JUSTICE SMITH and MRS JUSTICE BARON
The appeal was heard in March 2010. Litigation had, by this point, been going on for nearly ELEVEN YEARS. Throughout this case, the child is referred to as ‘A’ notwithstanding that he has been referred to as S before. But it’s the same child and the same case. In this ‘follow-up’ Dr Weir is referred to by name – so it was him after all.
Old Cliff had tried to effect the transfer of residence, but mum was having none of it and the local authority had become involved. Judge Bellamy had had to resort to tipstaffs and had indicated that the change was happening whether mum liked it or not. Mum, on the other hand, had other ideas…
The local authority were mooting an idea that the child go into local authority care for a few moths as a ‘stepping stone’ to transfer to dad’s house, but judge Bellamy thought it better to do a direct transfer and get on with it. ‘A’ in the meantime had indicated that if forced to move to his fathers house, he would run away.
The court found a compromise – the ‘stepping stone’ via local authority care should be only for 21 days, not three months…and maternal contact should be by supervised phone calls only.
How’s that gonna work out…?
Well, we can see exactly how this turned out here –
Case 3 – Resignation
WARWICKSHIRE COUNTY COUNCIL Applicant
TE First Respondent
SH Second Respondent
S (by his Children’s Guardian, Ms J) Third Respondent
“On 21 July 2010 a wholly deserving father left my court in tears having been driven to abandon his battle to implement an order which I had made on 4th January 2010 that his son, S, now aged 12, should move to live with him. The order of 21 July, made by consent, brings to an end litigation relating to S which has been before the court almost continuously since June 1999.”
At some point Karen Woodall became involved. She thought the situation could be remedied with therapy. Dr Weir thought not, saying
‘I do not share Ms Woodall’s optimism that further therapeutic intervention will succeed…This is a serious and entrenched case of alienation…and it has been and remains my opinion that therapy is unlikely to succeed in overcoming S’s resistance to any form of relationship with his father’s family.
Weir goes on
“The difficulty I have is that although the local authority is hoping reason will prevail and S will come round to accepting the inevitable, I think it is unlikely. The delay allows a period when attitudes can become entrenched, behaving badly, and further risk of harm occurring…at the end after the work and negotiation there will still be the same situation where we have to force him to live with his father. Even if he is willing to go into foster care, which is a good thing because it avoids a scene at the time, the bad thing is that we are not dealing immediately with what is ultimately necessary, that is, to make him to go live with his father.’
As I have already noted, the strategy S adopted during contact sessions – putting his head in his hands, putting his fingers in his ears and flatly refusing to engage – was carried through with great determination. His attitude became even more entrenched.
- In his report of 25 May 2010, written in response to the by then failed attempts to persuade S to engage with his father, Dr Weir said
‘There is little that I can add to my previously expressed views. The “stepping stones” method predictably failed and may have made matters worse…The continual delays and failed attempts at reintroducing contact make it more likely that S might successfully resist contact and/or transfer in the future, as he is now even more experienced at resisting the advice and encouragement of even more people in authority.’”
The court continued:
Some of the steps recommended by Dr Weir are likely to appear highly counter-intuitive to a child care practitioner who is not experienced in dealing with alienated children. At the professionals’ meeting on 23 February Dr Weir was asked how the reintroduction of contact should progress. He gave this advice:
Dr Weir: The [first] visit needs to be quite long to help the child get over it. If it ends quickly because of unpleasantness then it is setting up the next visit to fail. I am looking at the first visit being very long and to be kept going until S is prepared to answer his father and…look him in the eye ending in a change of attitude. It may take hours.
Q: What if he can’t do that?
Dr Weir: It needs to go on as long as possible.
Q: What if S says he won’t eat, drink, do school work etc? How long do you leave it?
Dr Weir: Indications from other cases are that threats are not persisted with. They may end in hours or 2/3 days and then things change…and it is OK.
Some child care professionals are likely to be deeply unhappy with such an approach and, out of concern about the risks to a very distressed child, unwilling to follow such an approach.
In other words, you have to push really hard.
In the meantime:
Some while after the second appeal Miss Ball QC, leading counsel for the father, advised the court that the father’s wife was pregnant with their third child. At the pre-hearing review on 7 July I was told that the father’s wife had miscarried. Following an advocates’ meeting on 13 July I was informed by Miss Ball that the father no longer intended to seek the implementation of the residence order made on 4 January. In the circumstances, I have no doubt that that will have been a very painful decision for him to take. However, after all that has happened in the six months since my order of 4 January, I have no doubt that the decision was the right decision for S. I warmly commend the father for it.
On the concept of alienation,
“In his first report Dr Weir gave this description of the concept of alienation:
‘There are children who show an extraordinary degree of animosity towards a parent with whom they once had a loving relationship. Most of these children will show some or all of [a cluster of psychological responses]. Within an individual child (and between children in the same family) the presence of the features can vary rapidly over time and place, but in their full manifestation are so surprising and unique as to be unforgettable. The proposed term ‘Alienation’ applies only to the cluster of psychological responses in the child with no need to presume a deliberate campaign of denigration by one parent. [my emphasis] There is now research data supporting a multifactorial aetiology for ‘Alienation’ following parental separation, involving contributions from both parents and vulnerabilities within the child.’”
“In the light of the considerable body of evidence I have heard and read in this case over the last three years, the research literature that has been produced and my experience of dealing with other high conflict cases involving different experts, I am satisfied that Dr Weir’s evidence as to the concept of alienation as a feature of some high conflict parental disputes may today be regarded as being mainstream.”
Therapy was not to be the answer in this case, as Dr Weir had opined, and Karen Woodall
“described the progress as ‘tiny’”
So dad gave up. He had no choice. There was a ‘postscript
- The final order was made on 21 July. S was informed later that evening. At my request, the guardian sent me an e-mail on 22 July to let me know how this meeting had gone. I set it out in full:
To inform you that myself and Mrs K met S last night and we had a meeting with father and [his wife]. The father read out his letter to S and we asked S to listen which he did. It was an extremely difficult meeting for father but he managed to read the letter and S did allow his father to touch him on his arm. S did not look at his father and had his head down for the whole time.
I spoke to S after his father had left and he was feeling numb but “good”. He said to say thank you and said that this was not the end and he would think about seeing his father after his GCSE’s.
I am sure he listened to his father and it was S who volunteered that this was not the end and he would see his father on his terms when he was ready.
Overall S managed the situation very well, but sadly we could hear his father sobbing as he left.
 IN THE MATTER OF S (a Child)  EWCA Civ 325 – http://www.bailii.org/ew/cases/EWCA/Civ/2010/325.html
  EWHC B19 (Fam) CASE No. NU10C00043 – http://www.bailii.org/ew/cases/EWHC/Fam/2010/B19.html