Where contact is in dispute, it is imperative that the court identifies at the earliest possible stage the level of risk to the child, and whether the lack of contact is due to parental alienation, or as a result of historical domestic abuse or other risk factors, where a parent is seeking to safeguard him/herself and the child.
How should the court identify and manage such cases?
Where there are allegations of domestic abuse, there is a procedure to ensure that matters are dealt with without delay. At the First Hearing Dispute Resolution Appointment (FHDRA) the court must consider whether domestic abuse is raised as an issue and, if this is the case, there are clear guidelines of the matters which must be considered.
A similar procedure should be encouraged to consider parental alienation alongside any other allegations of domestic abuse or risk. The CAFCASS Pathway assists with this process in terms of identifying the risks to the child posed by parental alienation.
The next stage would be for the court to hear the case in order to consider the allegations made. Unfortunately, a real difficulty that often arises, both in terms of parental alienation and domestic abuse allegations, is the lack of immediate court time to hold a finding of fact hearing in order to determine what the actual level of risk is.
The President of the Family Division in his keynote address in June 2018 stressed the importance of fact finding:
"It is, as I have already observed crucial, both to the interests of the alleged victim and, in fact, to those of the alleged perpetrator, for any significant allegations of domestic abuse to be investigated and determined as matters of fact, similarly any significant allegation of “alienation,” should also be laid out before the court and, if possible, determined on the same basis’."
Delay in fact finding, and the court process, can result in the parties becoming entrenched, with the resident parent believing that they are in control of contact, and the absent parent feeling frustrated and angry at the lack of progress. This is particularly problematic where there has been a break in the child’s contact with the other parent. The longer the delay in the decision making, the harder it is to move a case forward.
In situations of delay, achieving a remedy becomes more difficult due to the continued influence placed upon the child and the consequent unwillingness of the child to entertain contact. These difficulties are significantly increased as the child hits adolescence. Time is therefore of the essence.
Judicial continuity in intractable contact cases is vital
Once a court determines that parental alienation is the primary reason for the lack of contact, careful consideration must be given to all of the options available to the court, including the transfer of residency of the child or a Section 37 direction for an interim care order, which could result in the child being temporarily placed in foster care. The court should not be afraid to consider these options as short-term distress may result in long-term welfare benefits to the child. Consideration should also be given at this stage to the need for independent expert assessment and/or therapeutic intervention.
In the event that the court determines that the child’s welfare dictates that he/she should remain with the resident parent, then there must be the clearest of orders for contact, which sets out the consequences of a breach, and a judgement should always be made available to support the orders made.
Enforcement of child arrangement orders must be treated as urgent applications, where the court must again give careful consideration as to whether the child’s residence needs to be reconsidered, as by this stage, it is likely that all else will have failed.
Ultimately, the court must consider all of the available remedies before reaching a decision that contact cannot be achieved. The termination of a child’s contact is always a last resort and should only be considered when it is clear that it would not be in the child’s welfare interests to pursue it. Even if direct contact cannot be achieved, indirect contact must be carefully considered, in order to keep some measure of the relationship between the parent and child alive.