Assisting separating parents who are unable to agree upon the arrangements for their children is a difficult but common feature of a family practitioner’s workload. At times, parents can become so entrenched in their respective views that they are unable to reach a sensible compromise. The president of the Family Division reported last year that 38% of separating couples end up in the Family Court to resolve disputes about their children (see https://bit.ly/2tUDKjI). But what is the impact upon the children who are embroiled within the dispute? And what can lawyers do to help?
The impact of intractable contact disputes upon children
There are many internal and external factors that might influence how a child is impacted by intractable contact disputes. Some of these factors are unique and specific to the child’s own ‘make up’, such as level of cognitive ability (intellectual ability and their learning profile), communication functioning (expressive and receptive language), emotional wellbeing (developmental delay, difficulties or disorders) and attachment style (relationship with primary carer that affects their concept of self, carer and others). Children that have a lower level of cognitive functioning, learning difficulties or communication difficulties are more likely to struggle to make sense of contradictory information provided by adults, and experience higher stress levels around intractable contact disputes. This increased stress may affect their help-seeking behaviours, including potential for increased dependency with certain family members, or avoidance/withdrawal from others (Sunderland, M (2016) What Every Parent Needs to Know. Penguin Random House: London. Howe, D, Brandon, M, Hinings, D, and Schofield, G (1999) Attachment Theory, Child Maltreatment and Family Support. Palgrave Macmillan: London).
Each child has a level of dependency on their primary attachment figures. The attachment relationship serves to enable the child to make sense of their world and experiences (Crittenden, P (2015) Raising Parents. Routledge: London). This relationship can be negatively affected if a parent (attachment figure) has been: in conflict with the other parent/family member; emotionally unavailable due to their own distress or preoccupations; or imposing their perspective of their relationship with the other family member on the child (Woodall, K and Woodall, N (2017) Understanding Parental Alienation. CC Thomas: London). If the child at times of stress cannot access reliable, consistent and quality care from an emotionally available primary carer, it can be harmful to their emotional wellbeing and development, and may impact on their ability to form relationships in later life.
The stress upon children created through intractable contact disputes can be long term, chronic, and unmanageable, particularly in the absence of a close relationship with their primary carer. Children under the age of ten are more prone to struggle with managing their stress; note also that children in the toddler years and in adolescence may be particularly vulnerable, as there are similarities in their neurobiological changes. Those children that are exposed to higher stressors (such as significant domestic abuse/violence) are more prone to dissociation, which is the mental process of disconnecting from one’s thoughts, feelings, memories or sense of identity. While in the short term, dissociation is a largely subconscious defence mechanism, in the longer term, it interferes with developmental processes regarding identity, perception of the environment, levels of consciousness and memory functioning (Putnam, F W (1997) Dissociation in children and adolescents. Guilford Press: New York). It can be stressful for children who have dissociated to confirm their preferences (to include preferences for contact) and they may consciously, or subconsciously, adopt views of family members closest to them (Waters, F (2005) ‘Recognising Dissociation in Preschool Children. The International Society for the Study of Dissociation’, Vol 23, No. 4). This can lead to allegations of parental alienation, separation anxiety for a child and confusion regarding decision making in intractable contact disputes. In the more extreme cases, children experiencing increased stress and increased lack of availability of a consistent quality relationship may subconsciously or consciously present with ‘tension reduction behaviours’ in attempts to self-regulate their distress, which may include self-harming, anti-social behaviours, oppositional behaviours, substance misuse, and aggressive or regressive behaviours.
What can the court do?
Intractable contact disputes are gaining more judicial interest, and there is a growing acceptance that parental alienation exists, and must be handled quickly and robustly (see Re M (Children) (Ultra-Orthodox Judaism: Transgender parent) 2017 EWCA Civ 2164 and Re D, citation below). A key to this is active case management. In Re D (Re D (A Child: Parental Alienation  EWFC B64) the judge identified the ‘importance of the court undertaking…a finding of fact hearing and making findings at an early stage’. Fact finding hearings are notoriously difficult, but practitioners must not be shy to seek findings where there is a strong suggestion of alienation. Delays must be avoided where possible (s 1(2) of the Children Act 1989: 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), before the children’s views become too entrenched, or they reach an age where the court will no longer wish to interfere (Re J (Re J (Children)  EWCA Civ 115)).
In cases of alleged alienation, the court can ultimately order a transfer of residence, as in Re H (Re H (Parental Alienation)  EWHC 2723 Fam). In this case, despite the judge concluding that a transfer may cause the child emotional trauma and harm, he said: “When I balance the potential adverse consequences of a transfer of residence…against the short and long-term benefits of having a loving…relationship with both of his parents, I am satisfied…that H should now live with his father…this order is a necessary and proportionate response to the harmful and damaging situation that H has found himself in.”
Transferring residence is not without its pitfalls. Re A (Re A (Children: Parental Alienation)  EWFC B56) is a case in which there had been a long history of litigation (the matter had been before the court 36 times) and contact between the children and their father had not been supported by the mother. The judge noted that the children had been subjected to ‘significant and long-term emotional harm’ and stated that the cause of that harm lay ‘squarely with the mother’. The judge had ordered a transfer of residence of the children to the father in 2016, but it had effectively taken place too late; the children had been so alienated against their father that they refused to eat, misbehaved at school and ultimately, returned to their mother’s home.
Within his judgment, His Honour Judge Wildblood QC reiterated the need for early intervention in these cases as well as fact finding hearings. The judge commented that it had taken too long for the emotional and psychological issues of the mother to be uncovered, such that she was able to continue to negatively influence her children throughout the proceedings. This case is fact specific, but demonstrates what can go wrong when dealing with intractable contact disputes.
As an alternative, the court can start enforcement proceedings, and impose fines, community service or commit a party to prison. Although these ‘punishments’ are rarely used, there is judicial support for them, as per Lord Justice MacFarlane in Re A (Re A (Intractable Contact Dispute)  EWCA Civ 1104): ‘If…the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then…. the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in [the Children Act] CA 1989, ss 11J-11N or by contempt proceedings…to do otherwise is also inconsistent with the rule of law.’
What options are there outside of court?
- To alleviate immediate tensions, clients could consider having supervised/supported contact at an early stage, without prejudice to their position in any future proceedings. Clients may benefit from an independent party taking notes about their ability to parent, and the ‘aggrieved party’ may be less likely to obstruct contact if there are ‘safety measures’ in place. For a child that has a negative attitude towards contact, the safety of a centre/third party can be comforting. Contact notes can help the ‘accused party’ demonstrate that they have a loving relationship with their child, which is only impacted negatively by the other parent’s words/actions. Over time, the relationship of trust between the parties may improve, such that contact can continue on an ordinary basis, but if it does not, there will be useful notes which can be produced in court.
- Clients can consider attending mediation or family therapy, to see if discussing their respective feelings about contact in an open and safe environment can help them reach an agreement.
- Clients may consider involving a psychologist on a consultancy basis/starting family therapy/combining treatment with workshops about alienation and its impact. Careful consideration will need to be given as to whether or not it is appropriate for parties to commence therapeutic work before there has been a fact finding hearing and this is likely to be case specific and dependent upon the severity of the issues involved.
- Clients may consider obtaining psychological assessments. Such an approach should be reserved for cases where there is clear and serious alienation or other issues in the parent/child relationship. The assessment would look at the parties’ cognitive functioning (to explore their capacity to understand their actions) ability to communicate, mental health, stress, personality disorders and attachment styles, to understand why parties may act as they do, so that informed treatment/therapeutic guidance can be given to the parties.
In June last year, a review of the current Child Arrangements Programme was produced. Within the report, it is suggested that there should be a greater emphasis on out of court resolutions and a focus placed on avoiding delays. There is a suggestion that there is a more sophisticated approach taken to ‘triaging cases’ but there are no specific suggestions as to how to deal with intractable disputes (see https://bit.ly/35KcNMN).
Each case is unique, but it is clear that the sooner intractable contact disputes are resolved, the better the outcome will be. Children are not helped by delays, as protracted difficulties can have a negative impact on their developmental journey and personal narrative, and parents are not helped either. The longer a dispute is ongoing, the less likely the remedies available to parents will be effective.
Clients need to have an awareness of how these disputes may affect their children, and they may benefit from attempting alternative ways to resolve their dispute, outside of the court forum. If court proceedings are the only option, lawyers must assist the judges to take robust case management decisions at the earliest possible stage, to include seeking findings of fact. The reality is that the current framework is failing some families and efforts for reform need to be sought.
This article was published in New Law Journal in January 2020.