PA Cases are Simple!

ARE PARENTAL ALIENATION CASES SIMPLE?

Right at the beginning of my case, I suggested to the judge that my case was simple. He agreed. Either my ex was turning my child against me and trying to destroy his relationship with me, or she was not. Either she was a malignant narcissist trying her utmost to hurt me, not caring about hurting our child in the process, or I was a paranoid fantasist and possibly a dangerous individual from whom my child needed protecting. For me, it would be a ‘simple’ matter of putting her in the witness box. Her lies would be easily exposed.
Two years have passed, and still I have not seen my son…And my ex has still been nowhere near a witness box.

Introduction
There are some cases where the alienation is justified, because the TP has done something wrong. BUT these are excluded, by our definition of PA:

“A process, and the result of, the psychological manipulation of a child into showing unwarranted [STOPPA’s emphasis] fear, disrespect or hostility towards a parent or other members of the family”

Then, there are cases where the AP is doing the alienation negligently or accidentally. This, seemingly, may involve the AP just being a bit thick, or perhaps deluded. Somehow, this person does not realise that more subtle methods of alienation have an effect too – rolling their eyes at the mention of the TP, talking in a derogatory way about TP within the child’s earshot, asking the child to phone the AP as soon as the child gets to the TP’s house, asking the child if he will be ‘alright’ going to the TP’s house etc etc. Does anyone really believe that this is all ‘innocent?’ And, even if someone does believe this, it is still behaviour that has to stop, isn’t it? The AP needs educating. Or maybe somehow the AP has become genuinely worried (albeit with no rational basis) that TP is someone from whom the child should be protected (in which case the AP, again, needs educating). STOPPA doubts that many APs who do this are genuinely deluded or insensitive to their results of their acts and omissions. That is woolly-headed nonsense.
We can get rid of these types of case.
The PA cases we are talking about here are those where the TP has done nothing (substantially) wrong, and where AP knows exactly what he or she is doing. Let us call these ‘pure’ cases, or ‘type 1 cases’. Some experts feel that all PA cases are like this. Other experts think that type 1 cases comprise only a proportion of all PA cases. STOPPA does not care. Experts can argue about this – it’s not for us.
For our purposes, here, we are talking only about type 1 cases and asking why the courts cannot get even these ‘simple’ cases right.

So, if PA cases are simple WHO has an incentive to tell us differently?
CAFCASS
Well, CAFCASS for a start.
If PA cases are simple and CAFCASS still cannot spot them (despite having a specific tool for the job), that makes CAFCASS utterly incompetent, does it not?
So, of course PA cases MUST be complicated, right?!
EXPERTS
Well, if PA cases were simple, you wouldn’t need to spend £5k on an expert’s report, would you?
LAWYERS
Same rule as experts, but with more £s.
JUDGES
Judges…hmm…this is an interesting one. If you listen to some judges, like HH Judge Stephen Wildblood, you would be forgiven for thinking that judges ‘get’ PA. Well, either they do, or they do not.
Possibility A – Judges do not get PA
STOPPA thinks that this possibility can be discounted without too much difficulty, and STOPPA is inclined to accept Judge Wildblood’s assertions here. The simple fact is that judges are very experienced – they see these cases all day, every day, across the length and breadth of the UK. One needs only a very cursory glance at the decided cases, to come to this view.
Further, PA can be explained in about 5 minutes to an intelligent ignoramus. Judges are much better-placed than that.
Possibility B – Judges get PA
OK, so judges understand PA. Yet, look at the cases. With or without lawyers, McKenzie friends or LIPs, these cases drag on for years.
Why?

Who has the power? Who has control of the cases? Who manages the cases?

JUDGES

So, our initial conclusion is this:
Judges have the power to manage PA cases properly, swiftly and effectively. Yet they do not do so.

SO:
Why do judges handle cases so badly?
Your comments and theories are invited…Are judges just weak? Overly permissive to hostile-aggressive parenting? Feeble windbags? Or are their brains infected with a world-view that is outmoded and out-of-touch with the realities of PA ‘on the ground’? Are there/should there be different rules according to the age of the child?

The Scandal of Court Fees

Courts Rake in Huge Profits from Court Fees – The Implications for Access to Justice

It seems that, following a huge hike in court fees last year, the Courts Service have made a very nice profit of just over £100 million, according to figures released in December 2017.

The family courts raked in £186 million…

Read the full report here

So, the family courts are responsible for the profits!  And then some…

Well, that’s one way to look at it.  You could take the view that if court fees were a little higher elsewhere, family courts could provide help to our children and us, for free…And, given that our children are surely the most important recipients of English justice, that would not be unreasonable, would it?  Particularly given that Legal Aid is not available.  And companies that want to sue each other could pay a bit more…

And then I woke up…

So, what does it all mean?

Well, if you add together the facts that Legal Aid is not available for us, and that court fees are so high, there will be a large number of TPs that are going to struggle getting access to justice, surely a pretty fundamental right in an advanced society.

Now, to be fair, you can get exemptions from court fees.  The eligibility criteria are

Savings

You need to have less than £3,000 in savings and investments if you’re under 61.

You can have up to £16,000 in savings if your fee is between £1,000 and £10,000, or if you or your partner are 61 and over.

Benefits

You need to be on a low income, or on one of the following benefits:

  • income-based Jobseeker’s Allowance (JSA)
  • income-related Employment and Support Allowance (ESA)
  • Income Support
  • Universal Credit (and you earn less than £6,000 a year)
  • Pension Credit (Guarantee Credit)
  • Scottish Civil Legal Aid (not Advice and Assistance, or Advice by Way of Representation)

Income

If you’re not on any of those benefits, you need to earn less than £1,085 a month before tax if you’re single, or £1,245 if you have a partner.

You can earn an extra £245 on top of that for each child you have.

For example, if you have a partner and 2 children you have to earn less than £1,735 to be eligible for help with court fees.

So, really, this will help some people, but there will remain a massive tranche of litigants that are too rich to qualify for exemptions, but too poor to fund the fees.  Hiked fees + no legal aid = a double whammy for us, and for justice. 

But the issue of access to justice is being looked into. The Bach Commission will explore establishing access to justice as a fundamental public entitlement.  Their interim report can be seen here.

On Legal Aid, the Commission says:

“In their submission to the Commission, the Law Society wrote that: “We re-affirm the philosophy behind THE CRISIS IN THE JUSTICE SYSTEM IN ENGLAND AND WALES | 19 the Legal Aid and Advice Act 1949 that nobody should be unable to enforce or defend a right for want of the advice and representation they need to do so effectively.” The Commission agrees. Legal aid plays an integral role in our justice system, enabling those who cannot afford to pursue claims and defend themselves privately to access legal help. The narrower scope of legal aid has seriously damaged the ability of the legal system to uphold the principle of equality under the law, and thus the rule of law itself.”

UKAP will keep you posted…

Disadvantaged Fathers

STOPPA Blog # 4

New Research shows Fathers to be Disadvantaged in the world of ‘the family’

13-12-17

New research from the Fatherhood Institute, funded by the Nuffield Foundation, shows that men are disadvantaged in family life, in a number of respects.

The report claims that

The wider British culture is not, in the main, supportive of couples who want to ‘do things differently’ by sharing earning and caring more equally.

It says that the media portray fathers as not being engaged in intimate care-giving, or that, when they are, they are portrayed as bungling and incompetent, even though only 13% of Britons think that it’s the man’s job to work and the woman’s to raise the children.

How much of this though is engendered by men themselves?  It is, feminists might argue, the fault of men that they ‘system’ is set up as it is, in favour of women, because it is patriarchy, ultimately, that has given birth to the idea that women are better parents – girls are, after all, ‘sugar and spice and all things nice’ where boys are ‘slugs and snails and puppy-dogs’ tails’.  According to the report itself, for example fathers are still

“more likely than mothers to say very young children need their mother above anyone else”

And

“British mothers are more likely than fathers to say they should be the parent to stay at home, even if they earn more than their child’s father”

It seems that we Brits are pretty old-fashioned.

The problem seems to be that the workplace is set up to inhibit mens’ attempts at achieving equality:

“Legislative frameworks and institutional practices also impact on the ‘choices’ mothers and fathers make in terms of earning and caring. For example, employed fathers are almost twice as likely as mothers to have requests for flexible working turned down (Olchawski, 2016), and to fear that asking to work flexibly will damage their careers (Working Families, 2017).”

But perhaps British men prefer their women to stay at home.  Many might think that clearly-defined roles like this make for a happier more harmonious relationship.  That seems to be wrong:

“Fathers with full-time ‘at home’ partners actually experience more stress than men whose partners are in paid work (Crompton & Lyonette, 2008), possibly because these families tend Executive Summary 3 December 2017 Contemporary Fathers in the UK Fatherhood Institute to be poorer. Nor is involved fatherhood a middle-class pastime: lower earning fathers undertake more childcare than managerial/ professional dads (Hook & Wolfe, 2012).”

STOPPA concludes from this study that there are many surprises to be discovered about home life, once one takes the trouble to look.  Certainly more can and should be done to empower men in family life and to give both men and women more flexibility when sharing their work-life balance.

Legal Aid, Public and Private Law

BLOG #3

Legal Aid, and Public Law vs Private Law

12-12-17

What have these ostensibly disparate subjects got to do with each other, and why do we care?  Well, the common factor is justice.

Introduction

Legal Aid is not available in family cases apart from where there is domestic abuse (‘DA’).  This, I argue, means, for all practical purposes, ‘DV’ (Domestic Violence).

For a case to be treated as a public law case, there needs to be a risk of significant harm.

Section 31 (2) of the Act reads:

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant [my emphasis] harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i)  the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

So, we start from the premise that, whether applying for Legal Aid, or attempting to move a case over from private to public law, we need to show significant harm.

What is Public Law, as opposed to Private Law?

Public law is law that involves the State.  So, criminal law is public law because the State is the prosecutor.  In the same way, when Social Services become involved under S 31, the State is trying to protect the child, but although criminal sanctions are sought against the abuser, the main objective is to protect the child.

Private law means the law that governs relationships between citizens, individuals.  So, when A sues B for negligence or defamation for example, this does not concern the State.

Our cases, as TPs usually mean that we are involved in private law.  We have commenced proceedings against our ex, seeking contact with our child, or for residence to be transferred to us, or some other similar remedy.   We are not looking for the AP to be punished, or for the children to be taken into care.  PA is (usually) private law.

Social workers look at these cases differently, and have differing levels of expertise and experience in both.  Public law cases are in many ways easier to deal with, in the sense that the abuse is obvious to all concerned.  If a social worker visits a residence and sees used condoms on the communal stairs, discarded syringes and empty beer cans, she will spot a problem.  Hopefully we all would.  When she goes inside and sees multiple children in soiled nappies, and mess everywhere with nary an adult in sight, she might well conclude that her initial impressions of abuse/neglect have been confirmed.   So, this situation is easy.  Not easy to deal with, of course, but pretty easy to diagnose.  Clearly though, there are other cases that are much less obvious than this, and discretion and experience will come ever more into play.

The problem with private law PA cases, is that they are much harder to spot.  The differences have been highlighted by Dr Kirk Weir, who says:

“In care cases one tends to see people whose limited parenting capabilities are overwhelmed by accumulating disadvantages. By contrast one might characterise private law cases as occurring between individuals who have no serious background of disadvantage and who may be employed and socially successful. The children in the two groups tend to be very different. In care cases the children tend to beset by disadvantages, behavioural problems and learning difficulties which set them apart from their peers. In private law cases teachers often comment that were it not for knowledge of the extreme conflict between the parents they would not have regarded the children involved as having particular difficulties.

Fear and Loathing When I began to see private law cases I was not expecting to see nice respectable parents who were profoundly dishonest and devious. I was caught off guard by the intensity of hatred and emotion, the extremes of denigration of an ex-spouse and the total resistance to the idea that the non-resident parent had anything positive to contribute to their child’s future development. I met nice children who were filled with fear and loathing for a parent they may have loved at one stage in the past. These children were totally resistant to the idea of any form of contact be it direct or indirect[i]

It is clear then that public and private law cases are very different.

But are they?

You may feel, reading Dr Weir’s views, that public law problems arise in socially-disadvantaged families, and that PA cases happen in ‘nice’ middle-class families, and that would probably be a fair interpretation of what he says. 

But what about private law PA cases that are so serious in nature that the PA amounts to ‘significant harm’ for the purpose of the Act?  If a PA case were that bad, surely it would then be right to treat it as a public law matter, to be dealt with under S 31, by the Local Authority.

Indeed, in W (A Child) [2014] EWCA Civ 772

Ryder LJ says:

“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case [my emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.

So, it all depends, as we have said, on the meaning of the word “significant”

In the case sited above, there were false allegations against TP that he had abused his children.  The children were so traumatised by these allegations that they could not move directly to F’s home.  This was a very serious PA case.  On the facts of this particular case, the threshold criterion of ‘significant’ harm was made out, and the child was moved to Local Authority care.

So, it IS possible for PA cases to be so serious that the harm it causes to the child amounts to ‘significant’ harm.  To be noted, though, is that the judge stressed that this applied on the facts of this particular case.  The harm has to be really serious to trigger Local Authority intervention.

One of the problems with the law is that it is seen in different ways by different judges – what one judge thinks is significant harm, another might see as ‘concerning’ or ‘worrying’ or something like that, but falling short of ‘significant’.  Judge Stephen Wildblood has commented that it is very hard to move cases over from private to public law, because it is hard to ‘cross the threshold’ into ‘significant’ harm.

But, what if it did?  Would we want our children moved into Local Authority care?  Well, maybe, maybe not.  The problem is that, even if they are moved, the social workers assigned to ‘de-brainwash’ the child are just not qualified to do it.

Social Workers and Rehabilitation of the Child

The problem here is that Social Workers simply do not understand the dynamics.  Some words from Karen Woodall:

“What many practitioners in this landscape do not understand is that parental alienation is made manifest by the use of power and control behaviours in a parent.  This parent may be psychologically unwell but high functioning and may at the same time appear to be utterly compliant in most scenarios.  The parent is likely to rely upon the child’s refusing behaviour as evidence of the rejected parent’s historical poor relationship skills and is additionally seen to be very capable in a practical parenting capacity.  It is not until this parent is asked to do something that they really do not want to do, (make the child see the rejected parent for example), that the underlying dysfunctional behaviours are seen.  Encountering such a parent can be difficult for naive practitioners who are unaware of their own subjective material because the parent is powerfully manipulative and as such is capable of extreme manipulation.  Which is why so many social workers in the UK, who are brought in at the point where the welfare threshold is crossed in alienation cases, fail the child they are being asked to rescue, becoming instead, aligned with the alienating parent.[ii]

So – have we then moved our child from the frying pan into the fire?  It doesn’t look promising, does it?  A life with a narcissistic hostile-aggressive AP, or with a Local Authority that may well simply compound the harm.  Until social workers are better-educated in PA it is likely that they are going to do more harm than good.

Why do Social Workers not ‘get it’ and is there hope?

Woodall talks about Social Workers seeing themselves as ‘rescuers’ – that is, they feel that the child needs to be rescued from both parents, but

“Because resolving parental alienation requires an exchange of power and in the space around the welfare threshold, this power could be used responsibly to swiftly and permanently liberate the child from the problem.   Interlock the power held by the state which is invested in social workers, with the mental health interventions known to work for alienated children and the child abuse scandal from the post separation landscape of the past five decades, can be readily and swiftly dealt with in the UK.”

The conclusion must be that, until Social Workers are better educated in PA, transfer to a Local Authority’s care is not the right way to go.  Social Workers are not equipped, at this point, to undo the damage of PA.

So, this leaves PA in the hands of the private law system.  A system that has let our children down, shamefully, for decades.  And private law means NO LEGAL AID.


[i] Family Court Journal Volume 2 | No 1 | 2011

[ii] https://karenwoodall.blog/2017/12/09/the-drama-of-being-a-social-worker-counter-transference-in-the-post-separation-landscape/

The Meaning of ‘Significant Harm’

Section 31 (2) Children Act 1989, and the meaning of ‘Significant harm

S 31 of the Children Act 1989 says this:

“31                Care and Supervision

(1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority . . ..

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.”

Firstly, why is this provision of interest to TPs? 

Well, if we can show that the harm our child is suffering from PA is “significant”, the local authority could take our child into care.  Obviously (to us at least) our child is suffering this harm, and it is significant.  But, how significant would that harm have to be for us to be prepared to allow our children to go into local authority care?  In the care of a narcissist or in the care of a local authority…not a great choice…perhaps we could call it ‘the evil of two lessers’.

But, maybe if we could get the child moved to local authority care, that could be used as a stepping stone to moving the child into our care.  It’s not a great solution, but at least the child would be removed from the AP.  And courts have used this kind of device where a child was so alienated (by the time the courts had got to grips with the case) that he would not move directly into the TPs home, so was moved into local authority care as a temporary measure. (Re M (Intractable Contact Dispute) [2003] 2 FLR 636)

In: W (A Child) [2014] EWCA Civ 772

Lord Justice Ryder noted that

“The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child [STOPPA  comments: So, the AP must be censured, whether ‘mad’ or ‘bad’]. The judge’s finding that the mother was “bent on manipulation [STOPPA comments: this shows a ‘guilty mind – a positive intention] and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court. [Our emphasis][STOPPA comments:  Surely this means that psychological abuse of this severity should be regarded as “significant” for the purpose of S 31(2) and can and should be seen as equivalent harm to that caused by sexual or violent abuse, and can and should trigger intervention by the Local Authority]

Indeed, Ryder LJ goes on to say:

“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case [STOPPA’S emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.

So…It is possible for PA to trigger transfer of care of a child to a Local Authority.  In theory.  In practice, we as TPs are going to have a lengthy uphill battle to get this done…

Who’s in Charge?

Well… One thing everybody in ‘the system’ knows – it ain’t you, the targeted parent (‘TP’)!

The child is not in charge, because the authentic voice of the child is not heard.  In PA cases, the child simply is a conduit for the words of the alienating parent (‘AP’), a view parroted, more often than not by CAFCASS, which is why ‘wishes and feelings’ reports are completely useless and should be abolished.

Many judges will then parrot what CAFCASS say, and refer to CAFCASS as the ‘eyes and ears’ of the court – bad enough that we have the blind leading the blind…we seem to have the deaf leading the deaf as well!  It is a very disturbing thing to witness your child repeating the AP’s words, then CAFCASS doing it, and finally the judge…is there an echo in here?!

Now, there is the odd judge who will be robust.  Who will know the failings of CAFCASS and Guardians ad Litem, and not be afraid to say so.  And will ignore silly reports and recommendations from woolly-headed social workers.   Mrs Justice Parker is the obvious candidate, in re H:

“I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation …”

In my opinion, these words could legitimately be repeated in a majority of PA cases.

So, if the authentic voice of the child is not heard, if CAFCASS and the judge merely parrot the child’s expressed wishes and feelings, and if those are the wishes and feelings of the AP…

The Alienating Parent is in charge.

It’s like the AP is the bully in the playground, and the judge and CAFCASS are the cowardly kids that follow the bully around like a pale shadow, repeating the bully’s threats, saying at every turn “yeah”.

We must call for judges to be the supervising teacher in the playground, and to pull the bullies up and discipline them!  But of course, this does not happen. Judges at all levels simply do not enforce court orders, and APs just get away with ignoring the authority of the court, and encourage our children to do so…Mrs Justice Parker again…

“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”

Clearly, we need to get together and raise some funds to clone Mrs Justice Parker and put her clones in every family court in the land.  A radical solution, yes, but it’s got something going for it, no?

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