B e f o r e :
MR JUSTICE KEEHAN ____________________
____________________
Mr R Jones (instructed by Helen Fitzsimmons Family Law) for the Applicant The 1st Respondent appeared in person Ms A Musgrave (instructed by NYAS) for the 2nd Respondent Hearing dates: 20th - 22nd August and 20th September ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
Crown Copyright ©
The Hon. Mr Justice Keehan :
Introduction
I am concerned with one young person, H, who is 12 years of age. His father is the applicant, PA, who lives in City A in the South of England with members of the paternal family. His mother is TT, who lives with H in City B in the Midlands.
The mother appeared at this hearing as a litigant in person. H was formerly represented by a Children's Guardian of Cafcass but more recently has been represented by a case worker of National Youth Advocacy Service ('NYAS').
The father has made an application for a transfer of H's care from his mother to him. This application is opposed by the mother.
The Law
I have at the forefront of my mind that the welfare best interests of H are the court's paramount consideration: s.1(1) Children Act 1989. When determining this application, I have regard to the welfare checklist of s.1(3) of 1989 Act. At all times I have regard to the Article 6 and Article 8 rights of the child and of the parents but bear in mind that where there is a tension between the Article 8 rights of a child, on the one hand, and of the parent, on the other, the rights of the child prevail, Yousef v The Netherlands [2003] 1 FLR 210 .
I was helpfully referred by counsel for the father to a number of authorities and in particular to the decision of the President of the Family Division in Re L (A Child) [2019] EWHC 867 (Fam) . At paragraph 59 of his judgment, he said as follows:
Background
The parents underwent a Sikh ceremony of marriage on 30 th July 2005 followed by a civil marriage ceremony on 21 st August 2005. The marriage broke down and the parents separated in August 2007. There have been since then almost continuous court proceedings relating to H. This is the sixth set of private law proceedings. In 2007 to 2008, there were proceedings relating to the contact the father should have with H, during which the mother made allegations of domestic abuse against the father but no findings were made. Then in 2009 to 2010, the father made an application for leave to remove H from the jurisdiction and for holiday contact. In 2011, the mother suspended contact to the father and in the course of proceedings in that year she raised the domestic abuse allegations which had already been adjudicated upon. Then in 2013 to 2014, the mother made further allegations against the father, all of which were dismissed and contact between him and H was reinstated. The fifth set of proceedings between 2016 to 2017 related to the mother's refusal to cooperate with father for the choice of secondary school for H and the issues of contact.
H had been having regular contact with his father and his paternal family, which was of an exceedingly good quality, until March 2018. Since then there has been no direct contact between the father and H. On 11 th May, H sent the following WhatsApp message to his father
Three weeks later, on 23 rd May, H sent a message to his father which, in complete contrast, read as follows:
This unfortunate and unhappy position was maintained until recent months when H, once again, began sending WhatsApp messages and text messages to his father. The mother claims not to know what could have happened in that three-week period to so dramatically alter H's view of his father; she said she had not questioned him.
On 5 th May the mother was involved in a minor accident. On 12 th May the father sent what he now accepts to be a wholly inappropriate and intemperate email to the mother. It reads as follows:
The fact that H refers to amputation in his message of 23 rd May, can only mean the mother told H about the father's above email or she permitted him to read it.
Evidence
Dr Braier is a renowned expert in the field of parental alienation. Her report in these proceedings is dated 28 th March 2019 and she prepared an addendum report dated 28 th June 2019. In her substantive report she said in respect of the father as follows:
Later in her report Dr Braier gave the following opinions in relation to the mother:
Dr Braier's assessment of H contained the following observations and opinions:
On the issue of the way forward to enable H to have a relationship with both of his parents Dr Braier advised that:
In her oral evidence, she said that H may on the surface appear to be fine emotionally, but he is not. If the court were to contemplate transferring residence from the mother to the father there were risks to H; he may run away and he may not settle in his father's care if it was not properly supported. Dr Braier advised that prior to contemplating a transfer of residence the court had to be sure that the father was not an abusive parent. The father has not been blameless over the course of the years and has, from time to time, acted inappropriately (e.g. the email of 25 th May, see above). But, as Dr Braier commented, he has expressed remorse and I consider it to be genuine. The mother's level of conviction about the rightness of her position is not open to challenge or to outside evidence. She is firmly entrenched in her view and is most unlikely to change. Parental alienation is very harmful to a child. It skews the child's ability to form any and all sorts of relationships and is not limited to the failed relationship with the other parent. In this case, there is now no other option but to transfer residence of H to his father in the welfare best interests of this child. If, short of a transfer, an attempt was made to re-establish contact H, whilst remaining in his mother's care, is likely to become even more entrenched against his father.
I then heard evidence of the author of a s37 report by the social worker J, which is dated 9 th August 2019. This social worker had no previous experience of cases of parental alienation, she had made a passing referred to Dr Braier's comprehensive report. In my view this report of J is woefully inadequate. It is critical of the father but not of the mother and had no regard to Dr Braier's opinion and conclusions. In the premises I have taken no account of this report or of the evidence of this witness.
I then heard evidence from D the NYAS caseworker. In her report to the court she made only a passing reference to Dr Braier's report. For the purposes of compiling her report she spoke once to each of the parents briefly on the telephone. There is no reference in the report to the author having a lack of time to complete her enquiries or to make a recommendation. Rather there is a clear and unequivocal recommendation that H should live with his mother and have no contact whatsoever with his father. In her report, she only considered the negative issues about the father and set out the mother's criticisms of him. There is no consideration at all of the adverse role of the mother in H's life nor did she give any consideration as to the extent, if at all, to which the mother had alienated H against his father. She accepted H's expressed wishes and feelings at face value and had no consideration to Dr Braier's opinions.
In her oral evidence, she completed a volte face, in that she made no recommendation to the court about with whom H should live or the contact he should have with the non-resident parent. Despite being pressed she could give no explanation for:
i) the failure in her report to raise the issue of a lack of time to complete her enquiries or to write the report; or
ii) for the change in the recommendations now made.
D accepted she had solely focused on the father's role and had not addressed at all the mother's role. In the light of Dr Braier's reports, this is a startling and serious omission. When asked why she had not instructed counsel at the beginning of this hearing to request an adjournment of this final hearing, she could not give a cogent answer.
These serious omissions and deficits in her report undermine its reliability.
The father had enjoyed a very good relationship with H up until March of 2018. H also enjoyed a close relationship with his paternal grandparents and paternal relatives. I am satisfied these were mutually loving, fulfilling and beneficial relationships.
The father lives with his parents and his siblings at the family home in City A in the South of England. He told me and I accept that he has planning permission for a loft conversion to provide accommodation for H. He has identified a private school, E, which has space to accommodate H and is just a 10-minute walk from the father's home.
The father fully supported the opinions, conclusions and approach of Dr Braier. He readily accepted that he had made errors in the past and had drawn H into the conflict between the parents. He would, for example, occasionally copy H into emails he sent to the mother. He has, however, reflected upon his past behaviours and is ready to move forward. H is, he said, his first priority. He admitted that his frustration at the lack of contact or the lack of relationship with his son caused him at times to act inappropriately. Nevertheless, he is convinced that H still has a strong relationship with him and still loves him. The father told me he will ensure H is happy. Further, he will ensure that if residence of H is transferred to him, that H maintains a positive relationship with his mother and he actively supports direct contact between her and H. He is alive to the potential adverse consequences to H if the court orders transfer of residence to him. The father is committed to undertake the therapy and work advised by Dr Braier.
At the beginning of her evidence the mother told me that she had not supported contact in the past as she should have done and that she did not wish to focus in her evidence on historical matters. She told me that she accepted that she was partially to blame for the breakdown of contact. She opposed a transfer of residence to the father. She asserted H needed more time to re-establish his relationship with his father. Further, she asserted she had not influenced H or questioned him. She could not, however, provide any explanation as to how H had become aware of the contents of the father's email on 25 th May.
In the course of cross examination, the best the mother could do was to say that she could possibly have done things better. When being further questioned about the degree to which she accepted fault for the breakdown of the relationship between H and his father, I note the following matters:
i) she sought to sidestep the question every time counsel for the father put the issue of fault to her;
ii) on each occasion whilst she said that she accepted some blame she then proceeded to give a lengthy catalogue of the alleged failings of the father and of his family; and
iii) finally, she said to the court "I do not know what answers you want from me" - to which the simple answer is I expected her to tell me the truth.
She admitted telling Dr Braier that the father had "got to her" meaning that the father had influenced Dr Braier to support him. She alleged Dr Braier had not accurately recorded what H had said to her in her reports, but she could give no explanation why Dr Braier was not challenged on these issues when she gave evidence. She concluded this part of her evidence by saying "H does not even want me to mention the father to him. It's nothing to do with me"
The following morning, the mother requested the opportunity to give further evidence. I accepted the request. She apologised to the court for the way in which she had answered questions the day before. She said she was tired. She claimed to have reflected on her evidence. She claimed she could now support the re-establishment of a relationship between H and the father and she gave examples of positive ways to move matters forward. She spoke of supporting co-parenting between herself and the father. She was however, I regret to find, wholly passive aggressive in giving this evidence because, as in her evidence the day before, she could not and did not resist every opportunity to castigate and blame the father for the breakdown of contact. Her evidence was largely taken up with a veritable diatribe against the father.
Analysis
I have no hesitation in accepting the unchallenged opinion and recommendations of Dr Braier. She is one of the country's foremost experts in the field of parental alienation. For the reason given above, I have had no regard to the report of J. The NYAS caseworker does not now make any recommendation to the court, she asserted had had insufficient time to undertake full and proper enquiries but nevertheless acknowledged and accepted the opinions of Dr Braier.
I formed a very positive view of the father, he clearly loves his son very deeply and is fully committed to him. He comes from and lives with his loving and supportive family with whom H had a good and close relationship. It is clear to me, despite the difficulties over the years prior to March 2018, H had a warm, good and mutually beneficial relationship with his father. I can discern no reason for the complete breakdown and collapse of their relationship last year other than the malign influence and role of the mother.
I did not form a positive view of the mother. She repeatedly lied in her evidence. By way of example only, I refer to the following three matters:
i) her denial of speaking with H about the father's email of 25 th May is false. How else would H have known the contents of it? The father did not copy him in to that email;
ii) the mother's assertion that she described her concerns about the state of the father's mental health in the past tense and not as appeared in Dr Braier's report in the present tense. I am satisfied that Dr Braier would not have made such an error without acknowledging the same; and
iii) her oft repeated claim that she accepted some of the blame in the breakdown of contact was undermined by the contrary accounts which dominated her evidence that the father was entirely to blame.
The mother verbally attacked the father's character and his role in H's life and that of his family, at every opportunity throughout the court hearing whether in cross examination of the father or other witnesses and in her own evidence and submissions. It is plain to me, as it was to Dr Braier, that in reality she sees no benefit to H having a relationship with his father. She will not or cannot accept any other person's account of past events or actions which do not accord with her own views and perceptions.
She had plainly alienated H against his father. There is no other cogent explanation for the breakdown in contact in March 2018. Dr Braier gave clear and compelling reasons and opinions for reaching this unassailable conclusion. I accept Dr Braier's evidence that, as a direct consequence of this, H is and will continue to suffer emotional and social harm. If this situation is permitted to continue H will suffer adverse consequences throughout the whole of his life. It will impede his ability to form meaningful and positive relationships now and in the future. It may cause him to suffer depression in later life.
I also accept the opinion of Dr Braier that if an attempt were to be made to restore direct contact between H and his father, whilst H remained in the care of his mother, it is likely that H would become more entrenched in his views against the father. Moreover, I am satisfied that any such attempt to re-start contact on this basis would fail.
I am wholly satisfied that, on the totality of the evidence, the only means by which H can have a full relationship with both of his parents would be to make a Child Arrangements Order that H live with his father. Such a step is not without the risk of causing H trauma and emotional harm. In coming to this conclusion, I take into account the following matters:
i) he has lived all of his life to date with his mother;
ii) he is settled in school and has an established group of friends;
iii) he has many interests and is a member of a Taekwondo club;
iv) he has lived the majority of his life in City B in the Midlands albeit he has visited and stayed with his father in City A in the South of England;
v) he will have to accept his fathers and paternal family's home as his new home;
vi) he will have to settle into a new school part way through a new school term;
vii) he will have to make new friends; and
viii) he will have to familiarise himself with his new environment and locale in City A in the South of England.
I do not underestimate the trauma and stress H will endure if a transfer of residence is ordered. I am however entirely satisfied and find that:
i) H would be fully supported by his father and the paternal family;
ii) H will have the support and guidance of an independent expert in this field;
iii) it is most likely that his former close relationship with his father will be restored in very short order and;
iv) any trauma and or stress is likely to be of short duration only and will resolve when he settles into his father's care.
There is a risk he will not settle or that he may abscond from his father's home. I consider that, with all I know of H, this risk is small. When I balance the potential adverse consequences of a transfer of residence for H against the short and long-term benefits of having a loving an beneficial relationship with both of his parents, I am satisfied that the balance falls decisively in H's welfare best interests in ordering that H should now live with his father
It is the only realistic option that ensures H's welfare best interests are met. I am satisfied that this order is a necessary and proportionate response to the harmful and damaging situation that H has found himself in recent years.
Conclusions
I have come to the following clear conclusions:
i) the mother has alienated H from this father;
ii) she does not support the father having a role in H's life;
iii) the absence of the father from H's life has, is and will cause H emotional and social harm;
iv) if H remained in his mother's care, the prospects of H having a meaningful relationship with his father are, at best, poor; and
v) the only means by which H can enjoy a relationship with both of his parents is to transfer residence to the father; nothing else will do in the welfare best interests of H.
I have recognised and taken into account the potential traumas and harm H may suffer if moved to live with his father. I am satisfied that this loving and devoted father, with the assistance of the independent expert's support, to which he is committed to co-operate, will ensure that the transfer is successful and that H will settle in his father's care. The transition plan placed before the court by the independent social worker instructed is comprehensive and will support H transferring and settling in his father's care.
I am in no doubt that the transfer of H's residence from his mother's to his father's care is in his best interests. I accept the advice and opinion of Dr Braier that during this transition period it would be contrary to H's welfare best interests to have any direct contact with his mother for a period of three months.
I shall make a Child Arrangements Order that H shall live with his father and will spend time with his mother subject to the three-month embargo set out above. There may be indirect contact as advised by the independent social worker.
At the conclusion of the submissions on 20 th September, I announced my decision but reserved judgment. In light of my decision the Independent Social Worker was to collect H from school that afternoon and transport him down to his father's home in City A in the South of England. The paternal family had agreed to leave the family home for a short period to enable H to have time and space to settle into his father's care. I have been informed that that process proceeded without incident and the transition plan to date has been effective.