20 August 2010

What is the right approach to rebuilding the relationship between a parent and an alienated child? How far should the parent and the court go? How do you measure and balance the harm to the child of the lost relationship with a parent against being forced by whatever means to re-engage with that parent? The Re S case is a stark illustration of these dilemmas.

On 4 January 2010 HHJ Bellamy ordered the transfer of residence of a profoundly alienated 12 year old boy, S, from his mother to his father (Re S (Transfer of Residence) [2010] 1 FLR 1785)- a last resort after four years of no contact. The Court of Appeal upheld that decision in Re S (A Child) [2010] EWCA Civ 219.

How the order would be implemented was the subject of a further hearing and a further appeal. The judge's decision that if the mother could not deliver the child in accordance with the order then the Tipstaff would be engaged to do so, was not endorsed by the Court of Appeal which ordered a "stepping stone" approach involving a few days in local authority foster care before transfer to the father's home (Re S (A Child) [2010] EWHC B2 Fam and Re S (A Child) [2010] EWCA Civ 325 respectively).

Sadly, and perhaps inevitably, the transfer of residence was wholly unsuccessful and the father conceded that S should return to his mother's care under a residence order with only indirect contact unless and until S requests further contact with him. It was agreed that, as a result of the failure to secure a normal relationship with his father and the high level of parental conflict, S had suffered significant emotional harm to the extent that the threshold test was satisfied and the local authority should have a supervision order.

HHJ Bellamy's judgment of 11 August ([2010] EWHC B19 Fam) endorsing the order makes for an emotional read. Despite efforts by professionals, the parents and extended families, S had refused to engage with his father at all during the prescribed contact, putting his hands over his ears and his head in his lap, and refusing food and drink. The social worker and guardian concluded that there could not be a successful transition between homes without causing S significant harm, and the local authority could not support that. Faced with this heartbreaking choice, the father's acceptance that S should return to live with his mother was warmly commended by the judge.

Although the judge recognised that alienation is now a mainstream concept, there is no consensus in the research in this area, and different experts held different opinions as to how best to approach S's situation. The Centre for Separated Families advocated therapy which took place but which the father did not believe helped. In contrast, Dr Weir who had been involved as an expert from early on in the case, considered that therapy would be fruitless and the delay inherent in the stepping stone approach to the transfer of residence would only provide a greater chance for S to resist. His stance was, the judge observed, not an approach that some child care professionals would be happy with, but given the Court of Appeal's judgment, it remained untested in this case. CAMHS recommended that the "current court and contact programme be shelved for a while" to allow the "extremely distressed and unhappy little boy" who was "showing symptoms of a depressive illness" some "time to recover".    

Who knows whether Dr Weir's approach have worked if the Court of Appeal had not overturned the judge? As HHJ Bellamy says, there cannot be a one-size-fits-all solution. Therapy, the stepping stone approach or an immediate forcible transfer may each work in the right case at the right moment - the problem lies in identifying and effecting it in a timely manner in the context of adversarial court proceedings. It seems to me that early decisive action, including enforcement, by the court when contact breaks down can avoid entrenchment. But this must be viewed in the context of trying, at least initially, to avoid court proceedings if possible in favour of mediation or other less confrontational processes to promote communication and co-parenting going forward. Parents and their advisors have to make difficult strategic decisions at an early stage to prevent delay from feeding the problem.

It is overwhelmingly sad that a father and son have had no meaningful contact for over 4 years and at the end of protracted, painful and no doubt expensive court proceedings the only result appears to have been further distress to the child and the parents. There are no winners, least of all the child. The "wholly deserving" father has done all he can, and it can only be hoped that S is not irreparably damaged and that in time he chooses to re-establish their relationship. Unsatisfactory. But could the court have done anything more? Magic wands are regrettably hard to come by.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

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