The existing law is not perfect. But it’s not bad. The problem is not with the law, it is with the application of the law. I suggest a new approach, as follows:
Step 1 – Triage
All cases involving children should be triaged. Not by a clerk, certainly not by a magistrate, but by an experienced judge. This is probably the most important step. It is vital that PA cases (and all high-conflict and implacable hostility cases) are differentiated from ‘normal’ family cases, from the get-go. This is important because PA cases are different to other family cases. This is not a normal case of parents not getting on, whose differences might be resolved by ‘kitchen table’ methods like mediation. Unlike other cases, PA cases must be dealt with aggressively. Time is the enemy as section 1(2) of the Act tells us.
Step 2 – Safeguarding
This is something that is done at the moment, and which should continue. This step means that CAFCASS will prepare an initial report simply detailing that the child is not at risk from either parent. It does not include ‘risk’ in terms of PA, though. Only in terms of their being possible threats of violence or sexual abuse. But this is an important initial step.
Step 3 – Fact-finding
Alienating parents are liars. Usually pathologically so – that is, they lie not because it serves their interests (although, under the current system it plainly does), but because they cannot help it. It is in their nature to lie. An early fact-finding hearing will expose these lies. This is where a judge hears evidence from the parties, on oath. A lie on oath is a contempt of court, and a criminal offence. It is not unusual to hear of narcissistic RPs stand up, look a judge straight in the eye and tell the most outrageous lies. They have no shame. Of course.
But an experienced judge will be able to see through such lies.
When, after this, a judge comes to decide on the best course for the matter to take, he or she will have a much better feel for the case.
There is no need for lawyers at this hearing. There is no need, or point, in CAFCASS being involved, apart from providing a safeguarding report – a report telling the judge that the kids are (or aren’t) safe with both parents. Judges do not have to follow slavishly a CAFCASS recommendation. CAFCASS can easily usurp the role of the judge here. Judges are experienced and intelligent enough to work it out themselves.
Just the judge, you and the RP. That’s it. Cheap and quick. ‘Quick’ does not have to imply a superficial analysis. Here, there is an experienced judge assessing the best way forward.
It is vital, though, as we have said elsewhere that the judge is robust.
Judges must enforce their own orders.
A Quick Note on t‘No Order’ Principle
In family law, there is an overriding principle that a child’s situation should not change. Section 1 (5) of the Act says this:
“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”
This principle needs to be abandoned for PA cases for one simple reason. Your child is being emotionally abused. The priority is to get the child away from the abuser. Many, many cases spell out that Judges must not sit on the sidelines and do nothing. S 1(2) of the Act confirms this:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”
In PA cases, the conservative option is to move the child, rather than to allow the child to remain with its tormentor
If your child was being sexually abused or was covered in bruises, we would hope that the court would order the child’s residence to be changed immediately. It should not be any different with PA cases simply because the fractures, scars and bruises are not visible – they are no less deep, and are often longer-lasting than physical injuries.
Step 4 – Appoint a Guardian ad Litem for the Child
I argue that this step is essential in PA cases. Guardians are not perfect, as we know from Mrs Justice Parker’s comments in re H. But there are very good reasons why a Guardian should be used in PA cases.
Firstly, we are arguing that the child is not speaking with their own authentic voice, but merely repeating the words of the AP. The idea of a Guardian is that this person will tell the Court what the child really wants. Now, this is still a problem of course, because the Guardian needs to be trained in PA, and be able to get at the child’s true ascertainable wishes. It should be enough that the Guardian uses CAFCASS’s own PA Tool for this.
Next, when the child has a Guardian, the child will get Legal Aid. This is important because now the Guardian can fund something like an expert’s report normally costing £5k or more. The child now has the power and resources of the State behind him/her.
Step 5 – Order a suspended shared residence or transfer of residence order, tied to a 50-50 co-parenting order
So, here the idea is to make an order that the child spend 50% of its time with each of its parents, as a default, but REBUTTABLE presumption. And, with a suspended SRO or TRO attached, residence would be transferred immediately if the AP fails to facilitate contact.
Now, the court, starting from a 50-50 presumption will still always be able to invoke the Paramountcy Principle – that is, to say that although 50-50 might be desirable usually, the father should get 70% of the child’s time in this particular instance. Or the mother should get 80% – or whatever. The point though is that we start with a presumption of 50-50 and it is for the party seeking more time to show that the presumption ought, in this particular case, to be rebutted.
As soon as we get the slightest sign of trouble on contact, we should be able to make an application to the court to enforce the contact order and the judge should, at this point, invoke the suspended order and move the child’s residence, as well as meting out some kind of punishment for the non-compliant AP – community service, maybe, or a fine.
It surely is not difficult to imagine that APs are more likely to do what they are told if there is a real punishment at the end of a judge’s order. Indeed, there are cases that show that this is the only time some APs comply with court orders.
This suspended Order should stay in place for the duration of the case. Any time there is non-compliance with the order, the AP risks an immediate transfer of residence. That alone should ensure compliance with most contact orders.
Step 6 – Directions from the judge
After these first 5 steps, which can be taken quickly, the judge will have a better feel for the case.
At this stage, a judge should be able to work out that there is one parent here that is confounding justice. They are lying. They are obstructing contact. They are turning your child against you. They are defaming you. Or they do not turn up. Punish them! In the bad old days, you, the targeted parent would have to apply for an order to punish, but the law now says that such applications are unnecessary. A judge can punish an offender straight away. So…do it please!
Well, the great thing about the Act is that a judge has very wide discretion in these cases and lots of powers and options after the initial 5 stages have been implemented, depending on how the contact regime is being complied with.