After my suggested triage, and ensuring good contact with the TP, (or indeed, instead of this) the judge has a wide range of options available.
‘Specific Issue’ Orders
“means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child”
This is the Provision under which a Court might want to investigate the issue of PA.
The court can also order ‘Activity Directions’ (Section 11 of the Act).
Welfare Reports (Section 7 of the Act)
The court could order the involvement of CAFCASS. Obviously with the level of incompetence and ignorance of PA that is currently present in the ranks of CAFCASS, I would be slow to recommend this.
As a quick, cheap (and very poor) alternative to a full welfare report (an already undesirable option as opined above), judges often ask CAFCASS for a ‘wishes and feelings’ report that authorises CAFCASS to talk to your child about his or her wishes and feelings. I advocate that this is NOT done. The reason is that your child will, by now, simply be repeating the words of the AP. CAFCASS often do not try to ascertain the true wishes of the child. Finally, case law and the Act both make clear that your child’s wishes and feelings are ‘trumped’ by their welfare needs, which are paramount (The ‘Paramountcy Principle’), so what is the point of determining the child’ s wishes and feelings? I suggest that there is no need at all for the involvement of CAFCASS, and, further, that a report of this kind will be harmful rather than beneficial.
Monitoring Order (Section 11 (H) of the Act)
Here, the court makes the order it thinks appropriate and empowers CAFCASS to monitor the APs compliance with that order, and report to the court any failure to comply with the order it has made. This can be useful.
Guardians Ad Litem
A Guardian is a person that will represent, independently, the interests of your child – not much use if the Guardian doesn’t determine the true wishes of the child. The Guardian instructs lawyers. The problem is that Guardians tend to be CAFCASS officers, or ex-CAFCASS. See Mrs Justice Parker again in re H. But one possible advantage of using a Guardian, is that this person can get the State to fund stuff, for example, an expert’s report that would otherwise cost £0,000s. For this reason, perhaps, some Courts seem reluctant to appoint Guardians.
Guardians though tend to be ‘in the CAFCASS mould’. They will believe, or say they believe, that what is best for the child is what the child says it wants and tend not to go too deeply into the vexed question of the ascertainable wishes of the child (as required by the Act, as Mrs Justice Parker points out), or, even more importantly, what is in the best long-term interests of the child. On balance I remain to be convinced that Guardians are helpful. The idea is good – it’s just the practice that’s bad.
Independent Social Workers (ISWs)
Well, you could get a report from an ISW. They charge about £1,000 or so, cheaper than a specialist psychologist. But where are these people from? Where were they trained? What is their world view? Well, you can guess… they tend to be ex-CAFCASS. That is not good. Maybe when CAFCASS and ISWs have better training, this would be useful, but PA training is not mandatory for CAFCASS officers, and, as it is optional, the uptake for PA courses is disgracefully low.
There are a number of problems here. Firstly, there are not many psychologists in the country that specialise in PA (maybe ten!). And you must have a specialist.
Next, the reports cost £5,000 or more. And given the law of supply and demand, those fees are going to stay high. Finally, is there any point? These reports can be said to usurp the judge’s role. You will see in the case law that some senior judges think that they are intelligent and experienced enough to be able to spot PA a mile off without needing an expert to point it out. A report of this kind will delay things, and may not help anyway. I am aware of at least one case (from the bad (or even worse) old days) when the experts of BOTH parties identified PA and the judge still left the children with the alienator…
The court could order ‘family assistance’ – that is, for the AP (and/or you) to get, say, psychological help, but only if all parties agree…(Section 16 of the Act)
This can take a few forms. One possibility is that you, the other side, and your child all meet with a therapist and have a lovely chat and work it all out. That is not going to happen. The reasons are these. Firstly, your ex will not go. He or she simply will not engage in the process. Why should they? They hold all the cards – it’s not them that’s being deprived of contact with their kids…And the Judge can’t back up such an order with any kind of punishment, as we have seen.
You could try having separate appointments. This will probably end up with you going, and your ex not going. Pointless. And the judge has no power to force the issue.
A rider…It is just possible that if the alienator is alienating ‘accidentally’ therapy might help. Maybe if they can be made to see the harm they are doing, they will stop…But, as they can’t be forced to go anyway…
Finally, much as we might love our APs to undergo psychological therapy, note that
“no individual may be required to undergo medical or psychiatric examination, assessment or treatment;” (Section 11 (2B (6))
Meeting between the child and the judge
This sounds like good idea…but, there are ‘buts’.
These meetings are supposed to do two things. Firstly, they give the child a chance to ask the judge questions. Secondly, the judge can explain the legal process.
What they are not meant to facilitate is an opportunity for the judge to get evidence from the child. The judicial point is that neither you or your ex are present to ‘cross-examine’ your child. It is unfair, and there are specific rules in place to stop judges doing this which even the very best judges, with the best intentions, can fall foul of, particularly if they are trying to perform the kind of deeper investigations that CAFCASS have not bothered with.
But, disturbingly, judges sometimes actually lead the child to give the evidence the judge wants to hear. That is a much more serious infraction, and Judges that do this should not be judges. Resist any suggestion that you r child meets the judge – the most likely result is that your judge will simply parrot what CAFCASS say in the wishes and feelings report, which parrots what the child says, who, in turn, parrots what the AP says.
Sometimes it’s a good idea for meetings with your child to be at a contact centre. Ask for such meetings to be supervised by a contact centre member of staff. This is to protect you. The contact centre will keep notes and usually prepare a report detailing how the contact went. This will invariably help you as it will demonstrate to all concerned that you are a loving parent that wants to see their child, who loves their child. It is vital that during these meetings the alienating parent is not present, for obvious reasons.
But, of course, there are good contact centres and useless ones, good members of staff and ineffectual ones. Staff should insist that the child is left alone with you. The alienator and any members of the alienators family must leave.
CAFCASS can draw really perverse conclusions from these meetings, because, to be honest, they want to. The reason they want to is that the contact, if it goes well, interferes with CAFCASS’s agenda, which is to close the file. Always to close the file. And if things go well, continuing contact will have to be ordered, and the case will drag on.
CAFCASS do not want this. It’s messy. Just, but messy.
We have experience of this kind of contact being ordered and the alienator NOT being told to leave. The judge had ordered this, but the alienator ignored it and spent all the session saying to the child “Ok, shall we go now? You want to go, right?” and so on. CAFCASS concluded that contact upset the child (not surprisingly) and so contact should not happen again! The contact went well despite the interventions of the alienator and the child wanted to see the TP again. But CAFCASS refused to support this.
Do some research on contact centres, if you want to go this way. What is their success rate in unifying parents with children? Some contact centres are good, some are pretty hopeless.
These are promises made to the court by one or both of the parties. It is usually a complete waste of time for the court to order belligerent, recalcitrant RPs to promise anything. They won’t keep their promises, and time, in the interim, marches on, deepening the alienation. And, of course, when they do not keep their promises, there are no repercussions.
The Court can order ‘shared residence’ (D v D (Shared Residence Order)  1 FLR 495, A v A  EWHC 142 (Fam), Re K (Shared Residence Order)  EWCA Civ 526)
or, what I recommend:
Suspended/conditional Transfer of Residence Order (‘TRO’)
This is an order “providing for a future transfer of residence upon the happening (or non-happening) of a defined event”, usually the facilitation of contact (Re L-W (Children)  EWCA Civ 1253 at paragraph 107) or
Temporary Foster Care
Re L-W (Children)  EWCA Civ 1253 at paragraph 107, where a child was so alienated that an immediate transfer to the NRPs residence was not possible.
Also…maybe there is a kind of psychologistic issue here…that is, judges make judgments that look weak and cowardly not (necessarily) because they ARE weak and cowardly, but because they always have to think “well, this is an egregious case – I have seen all this many times. I want to find for the TP, of course. But because I lack resources, I have to pretend I go along with the CAFCASS report so that I don’t have to order something that cannot be implemented. Now, if I had a ‘flying squad’ of tipstaffs that could go in, grab the child, remove and protect it straight away, that might be different…THEN I could do the right thing”. The problem here is that judges should not be concerned with this kind of petty logistic. They should be just. It is for others (?politicians?) to work out how to implement the justice they are dispensing…
Judges have the intelligence and experience to spot PA. It is, according to the Court of Appeal, “mainstream”. But firm, rigorous action is called for to correct it. Judges have seen it all before. It’s just a matter of getting them to do something meaningful.. Judges must judge.
Don’t bother with reports from ignoramuses who do not know your child. They just delay things, often without any compensation in terms of justice. Get a quick fact-finding hearing. Get to the heart of the matter immediately. I recommend a suspended TRO as an interim measure and see how it goes. If the alienator continues to alienate, or frustrate contact, transfer residence, and punish the alienator with a costs order, or one of the other many options the judge has.
Once you have a Residence Order, get contact with the alienator supervised by someone – or get a monitoring order – a CAFCASS officer will usually do this, if no-one else is available. Sometimes other family members can supervise contact, and you may be able to find a supervisor that is acceptable to both sides. Ideally, if you can afford it, an expert psychologist should probably do this at the same time as applying their skill and experience to undo the alienation.
‘Prohibited Steps’ Orders
The court can order any party not to do a particular thing, that the court will specify.
Judges must judge. Judges must be brave. Judges must be the grown-ups. Judges are in effect in loco parentis. Judges must not be afraid to say “this is a bad parent who is obstructing contact with the other parent” and to make orders accordingly. Judges must not be afraid to say to alienators “you are a liar. I do not believe you”. In the case law you will see countless examples of judges making ineffectual orders and expressing the ‘hope’ that the alienator will see sense and be kind to their child.
THEY WILL NOT.
(and the case law proves it).