Article in the Family Law Journal
“Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law” said Baroness Hale when giving judgment in Re G .
These words will resonate with all practitioners working in family law. Whilst most separating couples manage to reach an agreement and avoid lasting impact for their children, there are those unable to agree to the arrangements, for whatever reason.This can cause parental alienation and implacable hostility and court involvement will be necessary.
A common attribution of parental alienation is an intractable contract dispute. Intractable contact disputes are often complex, lengthy, frustrating and distressing cases. They present significant challenges to practitioners and the judiciary in terms of management and remedy.
The tools available to the courts in parental alienation cases are blunt ones, often providing far from satisfactory outcomes. Over the years, the Court of Appeal and High Court have attempted to address the issues arising from this type of dispute, with varying degrees of success.
History of Implacable Hostility
In Re B (A Minor) , the Court of Appeal first used the term implacable hostility to describe the mother’s ‘invincible opposition’ to contact.
Implacable hostility cases involve extreme and persistent objections to contact taking place. Usually, but not always, contact with the father is prevented by the mother. The objections can be rational, based on genuine perceived fears, or wholly unreasonable, subjective reasoning. Both present significant challenges to the courts and practitioners.
RE O (Contact: Imposition of conditions)  involved parents who has separated prior to the birth of the child. The mother was highly resistant to any contact taking place at all. All attempts at direct contact failed with the mother claiming contact was harming the child. The child was young and a relationship between him and his father had never been able to develop.
It was concluded that if the mother did not encourage a relationship between father and child, there was little prospect of direct contact succeeding. An indirect contact order was made, which the mother also objected to in due course. The mother’s appeal against the indirect contact order was dismissed.
In his judgement, Bingham MR tried to set out guidelines for dealing with parental alienation and intractable bases. He stated:
- In accordance with the welfare principle, it is the welfare of the child which is the Court’s overriding concern.
- Where a child’s parents are separated and he or she is in only one parent’s care, it is almost always in the interest of the child that he or she should have contact with the other parent.
In the rare cases that direct contact cannot be ordered, it was highly desirable for there to be an indirect contact order to enable the child to grow up with a sense of his or her other parent.
The key to the decision in this case was the acknowledgement that ordering direct contact could place the child at risk of emotional harm. However, Bingham MR’s view was:
- The Court should take a long to medium view of matters and not give undue weight to short term problems.
Much depends on the cause of the parent’s implacable hostility to contact. If those concerns are considered significant, it is much more likely they will add weight to any argument against direct contact taking place.
In cases where domestic abuse is a feature, the courts need to balance the impact of any violence or abuse upon the parent and children against the benefits of contact taking place. Cases with features of abuse should not be generally classed as parental alienation.
At some stage, children caught up extreme implacable hostility between parents may become resistant to contact with the absent parent. This parental alienation adds a further, often insurmountable barrier to progressing contact in any meaningful way.
The child will present a seemingly genuine, strong wish not to have contact with the parent from whom they have been alienated. If the child is old enough for their wishes and feelings to carry significant weight, they will be taken into consideration. This presents the courts with a difficult task. Giving persuasive evidence that the child’s wishes are a result of parental alienation is time consuming, as well as emotionally and usually financially draining. Implacable hostility cases also often involve the assistance of at least one family counsellor.
The case of Re S (Transfer of Residence)  is an extreme example of parental alienation. The courts did everything within their powers to encourage a relationship between the alienated child and his father, ultimately to no avail. This case of implacable hostility was litigated over years. The transfer of residence failed and the father agreed to withdraw his application.
How to Approach Intractable Disputes
The intractable nature of a dispute needs to be identified early on. Features of parental alienation can include:
- Repeated and failed contact, change of plans or undermining of arrangements.
- False allegations against the parent seeking contact.
- Denigration of one parent by the other in front of the child.
- Unilateral decision making about the child.
First, practitioners should consider if any therapeutic intervention should be encouraged before embarking upon the litigation route. Unfortunately, it can be difficult to persuade a couple with extreme levels of implacable hostility the merits of such intervention. The parents opposed to contact will often feel very strongly that their approach is right. They will have no desire to explore alternative approaches.
When parental alienation matters are before the Court, judicial continuity is likely to be an important consideration, essential to dealing with the complexity of these disputes. A 30-minute directions appointment, often before different judges, does not afford sufficient opportunity to fully convey the dynamics and issues.
Therefore, considerable time can lapse before these disputes are properly recognised as involving implacable hostility. Meanwhile, delaying the child’s contact arrangements agreed means the relationship between parent and child may become further strained, causing parental positions to become even more polarised. Robust case management will be required if progress is to be made.
The welfare checklist will be applied and a Section 7 report will be directed in most instances. In the more overt cases of intractable hostility may also direct a Section 37 report from the child’s Local Authority. But, if they’re not already involved with the family, this can lead to an additional delay. There is an inevitably high bar for the Local Authority to conclude the difficulties in private law contact arrangements meet the threshold for significant harm that would meet their statutory involvement.
Does the Child Require Separate Representation?
Part 16 of the Family Procedure Rules sets out the guidance:
- Making the child a party to the proceedings is an uncommon step. It will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases.
The decision to make the child a party will always be exclusively that of the Court. Solely by way of guidance, the following are offered as circumstances which may justify the making of such an order:
(c) Where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact. Or, where the child may be suffering harm associated with the contact dispute.
It is arguable the appointment of a Guardian at an early stage would be beneficial in most cases. A Guardian may offer guidance to the Court, enabling it to make a more robust decision. However:
- The Court often turns to the appointment of a Guardian when other options has been exhausted.
- An application for the appointment of a Guardian may not be readily made on behalf of the parent seeking contact, for fear of further delaying a resolution.
- The Court is anxious not to burden an already strained Cafcass with applications, unless absolutely necessary.
Is Psychological Assessment Necessary?
Practitioners should consider if there are elements of parental behaviour which require further expert investigation. They must also deliberate if the child’s feelings should be explored by a child psychiatrist in cases of parental alienation.
Following the recent amendment to Part 25 of the Family Procedure Rules 2010, the Court must consider if expert involvement is necessary. They must be mindful of the instruction of such professionals delaying Court proceedings.
What Enforcement Powers are Available to the Court?
The Court has a number of enforcement powers available. Certainly, the higher courts have been sending out a clear message over the years that they were not afraid to use them, but only after all avenues have been exhausted. Although, this often means children are caught up in emotionally damaging litigation for a number of years.
Transfer of Residence
The case of V v V  concerned a long standing dispute, in respect of two children aged eight and six. The original application for contact was made by the father. The mother regularly suspended contact throughout lengthy proceedings, making various allegations about the child’s welfare, including that the children had suffered sexual abuse by a relative whilst in the father’s care.
Ultimately, Bracewell J rejected the mother’s allegations. On the application of the welfare checklist, she found that:
- The girls wanted to stay with their mother. However, an outcome could not be determined because they had been tainted by their mother’s influence.
- The children could benefit in the longer term from a change of circumstances.
- The use of enforcement procedures such as penal notice may have the effect of causing the mother to deliver contact. But, this would not prevent her from continuing to position the children’s minds against their father.
Consequently, residence was transferred to the father.
Conditional Transfer of Residence
- In the recent case of Re M (Children) , Jackson J imposed a conditional residence order upon a mother who had not facilitated contact. The father’s application for residence succeeded, but was suspended to allow the mother one final chance to facilitate contact over a specified period of time. It was stipulated that if contact did not take place, residence would automatically transfer to the father. It remains to be seen if this approach had the desired effect.
- A shared residence order can be made to endorse the equality of both parents, in terms of their responsibilities and duties to the child. While implacable hostility is not a bar to the making of a shared residence order, it is likely that in the most of obdurate cases it will do little to improve matters.
Fines or Imprisonment
- The Court can impose various sanctions on a parent who regularly flouts court orders. It is rare for a prison sentence to be imposed, although the courts have indicated they will not tolerate deliberate and persistent breaches of orders. That said, a prison sentence imposed on a parent who is the child’s main carer will possibly cause further harm to a child already embroiled in their parent’s dispute.
- Similarly, imposing a fine on a parent caring for the child on a limited budget is unlikely to lead to any positive change.
Other enforcement measures are available to the Court, by way of Section 11J Children Act 1989:
- Compensation orders.
- An order to carry out unpaid work.
- These are for parents who persist in breaching the terms of orders made. When punitive action is required, these measures are appropriate. But in cases of persistent objections to contact, there is little evidence they provide a long-term solution.
Indirect Contact Order or No Order at All
It can be easy for parents caught in conflict over ‘their rights’ to lose sight of the child’s best interests. The Court must have the welfare of the child in mind at all times. Sadly, on occasion, extreme implacable hostility and forced contact places the child at risk of harm.
As in Re S (Transfer of residence) , there are cases where the parent seeking contact is left with no option but to ‘give up’ in the interests of the child.
Practitioners should be alert to the fact that long periods of no contact and lengthy litigation only serves to allow already entrenched positions to take hold. It is clear delay in determining the outcome of these cases becomes a determining factor if the child internalises the views of the hostile parent, making contact unworkable.
As of April 1st 2013, public funding was removed in cases of implacable hostility. This jeopardised the rights of children to have a relationship with both parents. The courts may be faced with one of both parents appearing without legal representation in disputes where emotions and distress levels are high. This considerable increases the risk of delay and parental alienation.
Parental Alienation: Conclusion
Each case is unique. There are no easy answers as to how to manage intractable contact disputes within a legal framework. As summed up by Sedley LJ in Re L-W Children & Anor :
‘The law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations.’
Given the legal framework is a narrow one, it is hoped that the legal landscape may change. Going forward, practitioners and the courts will continue to be creative and explore alternative approaches early on. At each stage, families stuck in contact should be assisted to work together in the interests of the children.
If you are seeking legal aid for parental alienation and implacable hostility disputes, contact Anna Hunter at Major Family Law for professional and expert advice. Anna Hunter is an Associate solicitor at Major Family Law and a trained collaborative lawyer.