Parental alienation is a term that comes up frequently in a family law context, including in the mainstream media, and especially on social media.
But the term is often quite misunderstood, and few non-lawyers will know how the family court will deal with a claim by one parent that the other parent has alienated their child against them.
Such claims will normally be made in the course of child arrangements proceedings, when one parent has applied to the court for an order that the child live with, or have contact with, them.
But before we look in detail at how the court deals with parental alienation claims we first need to examine what exactly is meant by the term ‘parental alienation’.
As mentioned above, the term ‘parental alienation’ is often misunderstood.
For example, it is often referred to as a ‘syndrome’, as if it was capable of being diagnosed.
But this is not how parental alienation is viewed by the courts.
There is in fact no legal definition of ‘parental alienation’. Perhaps the closest thing to an ‘official’ definition is the approach taken by the Children and Family Court Advisory and Support Service (“Cafcass”), which uses the term “alienating behaviours” to describe behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer, that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.
Cafcass also say that: “These behaviours can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer. Alienating behaviours range in intensity and their impact on children.”
As to exactly what type of behaviours can be involved, it has been said that: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.” (Johnston and Sullivan, 2020).
Whether there have been any such behaviours by one parent is simply a matter of fact for the court to decide. As the President of the Family Division has said:
“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
The court will deal with allegations of parental alienation in a similar way to any other allegations that one parent might make against the other. In short, it will be all about the evidence.
The evidence will generally take two forms: the evidence of the parties (and any other witnesses they may call), and expert evidence.
The parties will give their evidence in two ways: in the form of written statements and orally in court, when the other party will have the opportunity to cross-examine them.
Whether or not an expert (for example a psychologist) is instructed to give evidence is a matter for the court to decide. If the court does direct that an expert be instructed, it will usually give detailed directions as to who should be instructed, and the remit of their instructions. The expert will carry out those instructions, prepare a report, and give evidence orally in court.
The court will normally decide the truth of the parental alienation allegations at a ‘fact-finding’ hearing. At the hearing the court will go over the allegations in detail, and decide whether they have been proved.
The findings will then be used at the final hearing, when the court will decide what order or orders should be made on the child arrangements application.
The way that the court deals with parental alienation allegations can be illustrated by two case studies from real cases, one in which the allegations were found to be proved, and one in which they were not proved.
The first case concerned a father’s application for a child arrangements order, for his son to live with him.
The background to the case was as follows.
The parties were unmarried. They had an on/off relationship, which ended when their son was born in 2016. Thereafter, the father had extensive contact with his son, including staying contact.
In or around December 2020, the mother made an allegation to her GP that the father had inappropriately touched the child. She also informed the father that he may not be the biological father, and that she was moving away.
According to the father, this coincided with him requesting parental responsibility. The father stopped seeing the child in January 2021, when the mother suddenly relocated from Kent to Manchester, without giving the father her new address.
The father then made his application, in April 2021.
The court ordered a psychological assessment of the family and for the local authority to investigate the case and prepare a report.
Both the psychological assessment and the report were clear that there had been parental alienation on the part of the mother which would cause significant harm to the child, and that the child had already suffered emotional and psychological harm in the care of his mother.
The local authority also very clearly recommended a change of residence for the child, from the mother to the father.
The mother had been found to have been continually reporting that the child had been sexually harmed by his father, despite an investigation by Children’s Services finding no evidence of this. The allegations against the father had been made in order to alienate the father after he had indicated to the mother that he wanted to be named on the child’s birth certificate, to enable him to have parental responsibility.
In the light of these findings the court made an order in June 2022 that the child should be moved to live with his father, pending further assessment and a final hearing.
The final hearing took place in March this year.
The evidence at the final hearing was clear: the child had suffered, and would continue to suffer, from significant emotional harm if returned to the care of his mother.
Accordingly, the judge had no hesitation in concluding that the child should remain living with his father. She therefore ordered that the child should live with the father.
The second case illustrates a not uncommon phenomenon: an allegation of alienating behaviour being used as a counter-allegation to an allegation of domestic abuse.
The case concerned a mother’s application for a child arrangements order for the children, who were aged 12 and 9, to live with her. At the time the children were having no direct contact with their father, consistent with their expressed wishes.
In connection with her application the mother made numerous allegations of serious domestic abuse against the father. The father, in turn, alleged that the mother had alienated the children against him.
The court fixed a fact-finding hearing to determine the truth of the parties’ allegations against each other. The hearing took place over six days, in March this year.
The full findings after such a long hearing would obviously take some time to repeat. In short, the court made findings of fact in respect of the father’s use of coercive controlling behaviour towards the children and towards the mother, neglect of the younger child’s medical needs, financial control over the mother, making major decisions about the children’s lives without the mother’s consent, providing misleading information to the court and using court proceedings to emotionally torment the children and the mother.
Further, and most significantly, the court made findings that the father had raped the mother.
Meanwhile, the court found none of the father’s allegations to be proved.
It should also be noted that the court made an order that the father pay the mother’s legal costs, which were assessed at £50,445.40.
At the next hearing, a Dispute Resolution Appointment, the father indicated that he did not accept the court’s findings, but did accept that until and unless the findings were successfully appealed they were binding on all parties, and for that reason he did “not oppose anything.”
Accordingly, the court made an order that the children live with the mother, and have indirect contact only with the father.
But that was not all. The court also made an order permitting the mother to change the children’s surname, an order restricting the father’s parental responsibility for the children (including prohibiting him from communicating with their schools), and an order barring the father from making any application in relation to the children without the court’s permission, until the youngest child attains the age of 16.
Obviously, this case was just as much about domestic abuse as parental alienation, but it does demonstrate the lengths that the court is prepared to go to establish the truth of allegations by one parent against the other. Parental alienation allegations are a serious matter, and the truth of the allegations is likely to have a considerable bearing upon the outcome of the case.
Re H (A Child)(Recusal) 2023 EWCA Civ 860 – Walker Family Law acted for the Appellant mother in a successful appeal to the Court of Appeal in this case.
The Court of Appeal handed down judgement on 24 July 2023 in the matter of Re H (A Child) (Recusal),an appeal heard on the application led by Solicitor Lucy Roberts instructing counsel Grant Armstrong and Thaiza Khan of 6 Pump Court Chambers.
The decision concerns an application for a Judge to recuse himself from the case and highlights that when applying the test for unfairness as in Porter v McGill, the fair-minded observer is an impartial observer who is abreast to the circumstances in their entirety.
This matter has been in private proceedings before the Family Court since 2020. In 2022 there was a fact-finding hearing concerning allegations of domestic abuse, and the Judge gave a judgment in which he made findings of controlling and coercive behaviour from the father towards the mother, and of sexual abuse including sexual assault and rape. After the judgment, both parties brought to the Judge’s attention a factual error in the judgment, whereby the Judge had found one incident of rape on a specific occasion which had not been alleged by the mother. This finding within the judgment was duly amended, however the Judge declined the father’s invitation to review the entirety of the judgment in light of this error. The father sought to appeal the findings to the High Court but permission was refused. At a later hearing before the trial Judge, the father made an oral application for the judge to recuse himself on the basis of an appearance of bias. The Judge declined to recuse himself. The father was granted permission to appeal this decision in the High Court in 2023 on the grounds that 1) the trial Judge admitted that he fell into serious error and created unfairness when he made a finding of rape which had no basis in the evidence and 2) that the Judge created the appearance of bias. In his Judgment Newton J upheld the father’s grounds considering that the trial Judge, His Honour Judge McPhee had failed to properly apply the test in Porter v McGill and should have recused himself on the basis of apparent bias.
On the mother’s application to the Court of Appeal, Moylan LJ considered that mother’s counsel having taken the court through the ‘impugned procedural decisions in some detail. When seen in their proper context, it is plain that Judge McPhee was justified in making each of them’ [para 77]. While the trial Judge should have given more thorough reasons in his judgment refusing the father’s application for the Judge to recuse himself – there was no appearance of bias, the father was not unfairly treated within the proceedings, and Judge McPhee was right to refuse to recuse himself.
The full judgment can be viewed here: https://www.bailii.org/ew/cases/EWCA/Civ/2023/860.html
NB see other articles:
H (A Child : Recusal) [2023] EWCA Civ 860 – Family Law Week
The Court of Appeal considered an application for the Judge to recuse himself on the basis of apparent bias, made in a private law dispute concerning a young child, H.
Reported: 24th July 2023
The mother made various allegations of violence, including sexual abuse, against the father. The father made cross-allegations. Following the fact-finding hearing, HHJ McPhee made findings against the father of rape, sexual assault, and coercive and controlling behaviour. Following submissions on behalf the mother that the Judge had misunderstood her pleaded case, the finding of rape was amended to a finding of sexual assault on the relevant date.
A further report from Cafcass was obtained, and the matter came back before HHJ McPhee to consider welfare.
At a hearing on 16 November 2022, the father made an oral application (without notice to either the court or the mother) for the Judge to recuse himself. The Judge adjourned the application to 23 November 2022, on which date he heard submissions from both parties and dismissed the application.
The father filed a notice of appeal against HHJ McPhee’s decision not to recuse himself. Permission to appeal was granted on the papers, and the substantive appeal allowed by Newton J, who allocated the case to a new judge. The mother appealed the decision of Newton J to the Court of Appeal, resulting in the present judgment.
Baker, Lewison and Peter Jackson LJJ unanimously allowed the appeal against Newton J’s decision. The test for apparent bias applied by the court was “whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the father would not receive a fair trial”. The narrower test from Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 was not applied.
In setting out the law, Baker LJ noted:
The Court of Appeal found that HHJ McPhee had given inadequate reasons for his refusal to recuse himself, and had otherwise failed to properly engage with a number of the father’s arguments. Despite this, the Court of Appeal concluded that, upon closer examination, none of the arguments raised by the father were meritorious, and so Newton J was wrong to find that HHJ McPhee should have recused himself.
Case Summary by Savannah Laurent, Barrister, Field Court Chambers.
For full case, please see BAILII.
Family Law Week judgment summary: H (A Child : Recusal) [2023] EWCA Civ 860 – Field Court Chambers.
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It goes without saying that all parents will normally do everything they reasonably can to keep their children safe. And quite often a parent will feel that it would be unsafe for their children to see a particular person. What legal steps can they take to stop that person from seeing their children?
In this article we will look at who can see your child, why a court might stop someone’s contact with a child, how the court decides who can see a child, and other related matters.
In most cases the ‘someone’ will, of course, be the parent with whom the child does not live, and this article will therefore be primarily concerned with the issue of contact between that parent and the child.
Note that what is often still referred to as a ‘contact order’ is technically now a child arrangements order, but for the sake of simplicity we will refer to it here as a contact order.
Obviously, a child will come into contact with many people during its life, and there is no restriction upon who they can have contact with, unless a court has ordered otherwise.
But that is not to say that everyone has a legal right to have contact with your child. If you do not agree to them having contact then they will only have such a right if a court has made an order permitting them to have contact with the child.
And this is so even if that person has parental responsibility for the child. Parental responsibility does not include an automatic right to have contact with the child. There are many fathers, for example, who have parental responsibility but do not have contact with their child.
But parental responsibility is still relevant, as clearly a court is more likely to make a contact order in favour of someone who has parental responsibility.
And that brings us to our next question: who has parental responsibility for a child?
All mothers will acquire parental responsibility automatically, as will fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but they will acquire it if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
Otherwise, anyone seeking parental responsibility will need to acquire it via a court order.
The starting position for the court in most cases is that contact with both parents and, to a lesser extent, with close relatives such as grandparents, is likely to be a good thing for the child’s welfare.
In fact, there is a statutory presumption that the involvement of both parents in the life of the child will further the child’s welfare, unless the contrary is shown.
So there does really have to be a good reason for the court to stop contact between a parent and their child. Possible examples of such reasons are that the parent has shown no interest in the child, and has had no contact with them for a considerable period of time; and that the parent has been involved in serious criminal activity, such as using Class A drugs, or committing offences against children.
But the most common reason is that that parent has been found to have seriously abused the other parent and/or the child. Domestic abuse is the primary reason why courts order that a parent should have no contact with their child.
As the law stands at present a finding of domestic abuse does not automatically mean that that parent should have no contact with their child, although it will often have a bearing upon the amount and type of contact that should take place.
There are, however, some who believe that there should be an automatic ban on domestic abusers seeing their children.
For example Kate Kniveton MP, who was herself a victim of abuse, has called upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children. Whether such a presumption ever becomes law, we will have to wait and see.
Often, one parent will want to stop the other parent from seeing their child because the other parent fails to pay child support maintenance for the child.
However, whilst this can be extremely frustrating for the parent with care of the child, failure to pay child support is not of itself normally a sufficient reason for the court to make an order stopping the ‘non-resident’ parent from having contact with the child.
Obviously, the parent with care should take other steps to ensure that the non-resident parent pays the child support.
Where there is already a contact order in favour of the other parent then if the parent with whom the child lives wants to stop the contact they will have to apply to the court to have the contact order varied or stopped entirely.
In such a situation the parent making the application will of course have to show to the court that there has been a change in circumstances since the original contact order was made, such that the contact should stop.
Where there is no contact order in existence the parent with whom the child lives can themselves apply for a child arrangements order, stating that the child should live with them and have no contact with the other parent.
In practice, however, the most common scenario is that the parent with whom the child lives will refuse to allow the other parent to have contact, and the other parent will apply to the court for a contact order. The court will then have to decide whether contact should take place.
The question whether or not a court will make a contact order normally relates to someone closely connected with the child, such as a parent or grandparent.
But sometimes the issue relates to whether the child should have contact with someone with whom they are not closely connected, for example where it is considered that such contact may be harmful to the child.
In such circumstances a parent can apply to the court for a prohibited steps order, restricting or prohibiting contact between that person and the child.
Whatever decision the court is being asked to make in relation to a child, it will base its decision upon what it considers to be best for the welfare of the child. In so doing, it will have regard in particular to the following matters, referred to as the ‘welfare checklist’:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a very clear wish that they do not want to have contact with one of their parents then that is a matter to which the court will attach considerable weight, and it may even decide the outcome of the case.
2. The child’s physical, emotional and educational needs.
3. The likely effect on the child of any change in their circumstances – this can obviously be relevant if the court is asked to stop a parent from seeing the child.
4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant.
5. Any harm which the child has suffered, or is at risk of suffering. This is of course the primary reason why a court may stop someone from seeing the child, as will be seen from the examples of why a court may stop contact mentioned above.
6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
7. Lastly, the range of powers available to the court, for example ordering that the contact be indirect only (such as via letter, telephone, email, etc.), rather than direct ‘face to face’ contact.
In short, anyone wishing to obtain an order stopping someone from seeing their child will need to persuade the court that that is the best thing to do for the child’s welfare, having regard to these factors.
Stopping someone from seeing your child, particularly the other parent, is a serious step to take, which could obviously have a very significant effect upon your child. And just attempting to stop the other parent from seeing your child could have serious consequences for your relationship with the other parent, which in turn could harm your child.
It is therefore essential that that you seek expert legal advice, before making any attempt to stop someone from seeing your child.
At Walker Family Law we have highly experienced expert family lawyers, who can give you the advice that you require. To get in touch with us, simply fill in the form on this page.
And for more information about child arrangements orders generally and the services we offer, see this page.
Please note that this article sets out the law as it is in England and Wales. The law in other parts of the United Kingdom may differ. You should seek advice from an expert in the law of the particular country concerned.
Parental responsibility is a term that often crops up in family law-related discussions. Parent-child relationships are often valued, despite common misunderstandings about their nature and significance. Often someone in such a relationship will apply to the court for a child arrangements order. But does a child arrangements order give parental responsibility for the child (assuming they did not have it already)?
Before we answer that question we should first remind ourselves exactly what parental responsibility is, and who gets it automatically.
We will also look at just what a child arrangements order is.
As mentioned above, the concept of parental responsibility is often misunderstood.
In particular, it is commonly mixed up with the concept of ‘parental rights’ over the child.
In fact, that concept was largely done away with when the Children Act 1989 was passed, replacing it with the concept of parental responsibility.
The Act defines parental responsibility as: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
This definition is not particularly helpful, as it doesn’t include a list of ‘parental responsibilities’. The decision to not list all ‘parental responsibilities’ in the Act was a positive decision.
But we can give a few examples: the responsibility to maintain the child, the responsibility to ensure that the child is educated, and the responsibility to ensure that the child receives appropriate medical treatment are important ones.
In general, parental responsibility means the legal right and responsibility to make important decisions about a child’s upbringing.
Certain people do not have to do anything to acquire parental responsibility – they acquire it automatically.
All mothers acquire parental responsibility automatically, as do fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but will if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
A child arrangements order is not a parental responsibility order.
A child arrangements order determines where a child should live and their contact arrangements with others.
There are therefore two types of child arrangements order: one that states who the child should live with, and one stating what contact the child should have with anyone else.
The difference between the two is important for parental responsibility, as we will see now.
The rules relating to this are slightly complicated, but we will simplify them and set out the most important parts.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child will live with them then the court must also make an order giving them parental responsibility.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child should have contact with them then the court must decide whether it would be appropriate to also make an order giving them parental responsibility.
Lastly, if the court makes a child arrangements order stating that the child is to live with anyone who is not a parent or guardian of the child, that person will have parental responsibility for the child while the order remains in force.
For more information about child arrangements and how we can help, see this page.
A separated parent often forms a new relationship, creating a new family unit with their children and new partner. In such circumstances the new partner or spouse may, if the new family endures, wish to adopt the children, assuming that the parent with whom they live agrees. This is known as a ‘step-parent adoption’ (even if the separated parent and their new partner do not marry), or a ‘partner adoption’.
As we explained here recently in this post, the court will only be able to make the adoption order if the child’s other biological parent consents, or if the court dispenses with their consent.
The court can only dispense with their consent if they cannot be found, they are incapable of giving consent, or the welfare of the child requires their consent to be dispensed with.
In many step-parent adoptions the other biological parent, most commonly the father, cannot be found, and in some other cases they will give their consent, or be incapable of giving consent.
But sometimes they will oppose the making of the adoption order, in which case an adoption order will only be made of the court considers that it is in the best interests of the child to dispense with their consent.
A rare reported example of an opposed step-parent adoption occurred just recently, and illustrates how the court approaches such cases.
The case concerned a step-father’s applications to adopt his wife’s four children, the oldest of whom was 18 and the youngest in the final year of primary school.
He wished to adopt the children so that he would become their legal parent and the children would be treated in the future as being of the relationship that he had with their mother.
The applications were vehemently opposed to by the children’s father.
Briefly, the background to the case was as follows.
The children’s parents separated in 2017. The children remained with the mother. Contact between the father and the children was inconsistent, although in August 2019 a contact order was made providing for the children spend time with the father each Tuesday and Thursday and on alternate weekends.
In October 2019 the mother returned the matter to the court, stating that the children no longer wanted to see the father.
A contact order was made in October 2020 in relation to the three youngest children, reducing the contact to twice a month.
In the event the two middle children only attended a handful of contacts, with this coming to an end in early 2022.
Contact with the youngest child stopped in September 2022.
Meanwhile, the mother and step-father had commenced their relationship in April 2019, with the step-father moving to live with the mother and children in October 2019. They were married on 1st July 2022.
There was no dispute that the step-father had played a very active role in the children’s lives, and a strong and stable family unit had been established.
As mentioned above, the court had to decide whether dispensing with the father’s consent would be best for the children’s welfare. To do this, the judge took into account all of the circumstances of the case, including the following particular matters:
1. The children’s ascertainable wishes and feelings, having regard to their age and understanding. The three older children all wanted the adoption order to be made, and did not wish to see their father. The youngest child also wanted the adoption order to be made, but did wish to see their father.
2. The fact that the father’s relationship with the children had been either non-existent or poor in quality for several years.
3. The fact that the step-father had effectively acted as the children’s father for some years, and that the children, particularly the older three, were determined for the step-father to be their father in every sense – socially, psychologically, and legally.
In the circumstances, the judge concluded that the welfare of each individual child throughout their respective lives would be best served by the children having a father who existed emotionally, practically, and legally, and that adoptions orders should be made. Accordingly, he dispensed with the father’s consent.
He did, however, make an order for the youngest child to have contact with the father, starting on a monthly supervised basis.
For more information on adoption and how we can help, see this page.
When separated parents are unable to agree arrangements for their children the court may make a child arrangements order. But how long does a child arrangement order last in the UK?
A child arrangements order is an order regulating arrangements relating to any of the following:
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person.
Essentially, there are two elements to child arrangements orders: the ‘live with’ element, stating with whom the child should live (which could be with more than one person, for example where the child is to share their time between the parents), and the ‘contact’ element, stating what contact the child should have with anyone else.
A typical child arrangements order might state residence with one parent and visitation with the other..
The difference between the elements answers the question: how long does a child arrangement order last in the UK?
A child arrangements order ends when the child turns eighteen, as they’re no longer considered a child.
However, the contact element of a child arrangements order will cease when the child reaches the age of sixteen, unless the court states that it should last longer, which it will only do if there are exceptional circumstances.
Thus, the law is essentially saying that when a child reaches the age of sixteen it will be up to them (save where there are exceptional circumstances) to decide what contact they should have with the parent with whom they don’t live.
Meanwhile, the ‘live with’ element of a child arrangements order will continue until the child reaches the age of eighteen. However, the court may not make even a ‘live with’ child arrangements order in relation to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional, and would in any event be very reluctant to enforce a ‘live with’ order after the child has reached sixteen, save in exceptional circumstances.
A recent High Court case provides an insight into how all of this may work in practice.
The case concerned a father’s contact with his son, who was then aged fifteen.
The father had contact with the child, but was it in the child’s best interests for the contact to continue?
The mother argued that no order for contact should be made, based on the child’s wishes and feelings, whilst the father contended that it was in the child’s best interests that an order be made to last until he was aged eighteen.
For the contact order to extend beyond the child’s sixteenth birthday, exceptional circumstances needed to be demonstrated to the court.
The judge hearing the case referred to guidance which appeared to link the making of an order to run after the child’s sixteenth birthday to where the child has cognitive or learning difficulties, and stated that examples were to be found in previous cases where the child was particularly immature and needed that protection.
The father argued exceptional circumstances, alleging long-term manipulation by the mother, leading the child to refuse contact.
The judge acknowledged the mother’s manipulation but prioritized the child’s wishes, deeming it best for his well-being. She also could not envisage how an order could be made to work from the age of sixteen onwards, saying that it would be futile to force him to continue to see his father against his wishes.
Accordingly, she made an order that the contact should only continue until the boy’s sixteenth birthday.
For more information about care proceedings and how we can help, see this page.
Care proceedings are an extremely daunting prospect for any parent to face. It is therefore important that they understand the court process involved.
Care proceedings will be commenced when the local authority is concerned that a child in its area has suffered, or is at risk of suffering, significant harm attributable to either the care given to the child, or likely to be given to them, not being what it would be reasonable to expect a parent to give them, or to the child being beyond parental control.
Care proceedings are a last resort, pursued only after exhausting efforts to keep the child with their birth family.
A pre-proceedings meeting will usually take place as a final attempt to prevent the matter going to court. Parents will receive a letter from the council before the meeting, outlining concerns and inviting attendance. The council will clearly communicate parental expectations regarding their child. Failure to meet these may lead to care proceedings
Once the proceedings have been issued the exact procedure will vary from case to case, depending upon the circumstances. However, the basic procedure takes place in three stages: the Case Management Hearing, the Issues Resolution Hearing, and the Final Hearing.
The Case Management Hearing is usually the first hearing that takes place, fixed when the proceedings are issued. The hearing is typically brief, with the court providing directions for the next steps.
In order to decide what should happen next the court will review the council’s application and its plans for the child (set out in a ‘care plan’), identify the main issues in the case, and what evidence will be required to enable the court to resolve those issues.
Evidence will comprise written statements from parents expressing their views and any necessary expert reports filed. The court may also want other family members to be assessed as potential carers for the child.
A timetable for that evidence, and for next stages in the case, will then be set by the court. The court will usually want the case to be completed within 26 weeks, although this deadline can be extended.
The purpose of the Issues Resolution Hearing is to see whether everyone involved is able to agree upon long-term plans for the child, including where the child should live and what contact anyone should have with them.
If agreement is reached, then this might be the final hearing.
If no agreement can be reached, the hearing identifies and narrows issues for the Final Hearing. The court will also fix a date for the Final Hearing.
At the final hearing, which will usually take place over several days, the court will hear (or read) all of the evidence, and make its final decisions.
The decisions that the court will make will be about the long-term care arrangements for the child, what contact the child should have with anyone, such as parents or other family members, and what orders, if any, are needed to put those arrangements in place.
The orders that the court can make include: a care order placing the child in the care of the local authority; a supervision order placing the child under the supervision of the local authority (the child will usually remain with the family); a special guardianship order placing the child with someone other than their parents; and a placement order authorising the local authority to place the child for adoption.
If a parent has been found by the court to have seriously abused the other parent, or even their children, should the court then still be able to allow them to have contact with the children, or should the finding of abuse mean that there should be no contact?
It is a difficult question, and an MP, who herself has personal experience of court proceedings dealing with this situation, is proposing a change to the law.
The MP is Kate Kniveton. Before we look at what she is proposing, we need to look at the law as it is at present.
Judge Lieven established current law in final hearing of Ms. Kniveton’s case.
In the case, which concerned arrangements for Ms Kniveton’s child, the court had made some very serious findings of domestic abuse against the father, including that he had physically and verbally assaulted Ms Kniveton, and even that he had raped her.
Despite these findings, the court initially decided that the father should continue to have contact with the child, at a contact centre, and even that Ms Kniveton should pay half of the contact centre fees.
In her judgment Mrs Justice Lieven explained the law as it stands at present, which states that where there are findings of domestic abuse the court should only make an order for contact if it is satisfied that the safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
Mrs. Justice Lieven halted direct contact between child and father due to safety concerns for child and Ms. Kniveton.
In the light of her experiences Ms Kniveton, who feels that the present law came “dangerously close” to letting her down, is now calling upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children.
Whether such a presumption is introduced remains to be seen, but Justice Minister Mike Freer has confirmed that a review into the current presumption of parental involvement, which states that it is generally in a child’s best interests to have a relationship with both parents, will be published by “late spring or early summer”.
Should laws on contact between domestic abusers and children be strengthened, as Ms. Kniveton suggests, or kept the same?
Clearly, the safety of the child and the abused parent must be protected at all costs, as is the case with the law as it stands at present, and a presumption of no contact would fit in with this.
But on the other hand the welfare of the child is paramount, and there may well be cases where the child’s welfare dictates that they should continue to have contact with a parent, despite the fact that that parent has been found to be abusive. In such cases a presumption of no contact could work against the child’s welfare.
We will leave the last word to Ms Kniveton.
Speaking in the Commons she said: “Despite the court confirming that my child’s father was abusive, a rapist, it was decided that contact should continue through a contact centre and that I should pay for 50% of the cost of that contact.
“I couldn’t believe that anyone felt that my child, whom I’d been fighting to protect, would benefit from further contact with such an abusive and violent man, and that I, someone who had been subjected to that violent behaviour, should not only facilitate that contact, but also pay towards it.”
If you’re experiencing domestic abuse, seeking legal help promptly is crucial for your safety and well-being.
For more information about domestic abuse and how we can help, see this page.
Last year, Walker Family Law was involved in an important Court of Appeal case about the representation of children in abduction proceedings under the Hague Convention 1980. Two cases were heard together and the full judgements can be read at the links below:
Re D (A Child) (Abduction: Child’s Objections: Representation of Child Party), in which we represented the mother.
C v M (A Child) (Abduction: Representation of Child Party)
In any family court case, children can be caught up in very bitter disputes between their parents. In abduction cases, conflicts arise when a child opposes returning “home,” especially when it conflicts with the applicant parent’s wishes. It is really important that a child’s voice is heard in these circumstances, as one of the five limited defences to a Hague Convention application is a child’s objection to a return.
There are various methods supporting children’s voices in family courts, sometimes involving separate representation for the child, ensuring effective participation.
In abduction proceedings, this can either be by:
A ‘Cafcass guardian’, a court social worker, who will then instruct a solicitor.
A ‘solicitor-Guardian’, where a child instructs the solicitor directly, rather than via a Cafcass officer.
A solicitor-guardian was appointed for the child, ‘D’, at the first hearing. Through the solicitor-guardian, D expressed his wish to remain in England. At the final hearing, the judge concluded that although D objected to returning to Singapore, he had been “heavily and unduly influenced” by his father in England. The judge also expressed concerns about the solicitor guardian providing opinion evidence regarding D’s objections.. D appealed.
The court had ordered the return of the child, ‘X’, to Mauritius, but X then applied to be joined as a party and to set aside the return order. A solicitor-guardian was appointed for X. At a final hearing, the judge refused to make a return order and accepted evidence that it was likely X’s views were her own and there would be ‘significant emotional consequences’ if she was ordered to return to Mauritius against her wishes. The father appealed.
A key issue for the Court of Appeal was the role of a solicitor-guardian and the scope of the evidence they should give, particularly considering they do not have the same expertise and training as a Cafcass officer.
Due to the significance, the Court permitted Reunite International and the Association of Lawyers for Children to intervene.
In Re D, The Court of Appeal allowed D’s appeal and ‘regrettably’ sent the case back to the High Court for a new hearing. The Court agreed with much of the analysis of the judge regarding the solicitor-guardian’s evidence but concluded that the judge had effectively treated his evidence as inadmissible, which was not correct and affected the fairness of the proceedings.
In C v M, the father’s appeal was dismissed.
With regard to the overall guidance regarding solicitor-guardians, the Court of Appeal has asked that this be addressed by the Family Procedure Rules Committee. In the meantime, the guidance can be summarised as follows:
It should be rare that a child is separately represented. The child’s voice will normally be sufficiently heard through Cafcass report.
If suggesting separate representation for a child, they must meet the Cafcass High Court Team first, except for compelling reasons.
Non-expert opinion evidence is admissible .
Pending further guidance, certain matters, like assessing the authenticity and strength of a child’s views, remain within Cafcass officers’ purview.
Currently, solicitor-guardians should refrain from providing opinion evidence beyond what’s essential to justify the child’s competence to instruct them.
For information on how we can help, please see our Child Abduction page.
On the face of it, a child arrangements order is quite simple: it states with which parent(s) the child should live and, if with only one, what contact the child should have with the other parent.
But there can be much more to child arrangements orders.
Here we look a little more closely at what exactly a child arrangements order is, and what it can include, apart from simply setting out living and contact arrangements.
The starting point is the statutory definition in the Children Act 1989 for a child arrangements order.
The Act states:
“child arrangements order” means an order regulating arrangements relating to any of the following—
(b) when a child is to live, spend time or otherwise have contact with any person”
Note firstly that the definition is not limited to parents. A child arrangements order can also be made in relation to someone else, such as a grandparent.
Courts can order a child to live with multiple people, like splitting time between parents, without any restrictions.
Another point to note from the definition is the reference to spending time or otherwise having contact. What is the difference between the two?
‘Spend time’ means direct face-to-face contact between the child and the individual, including daytime or overnight visits.
‘Otherwise have contact’ refers to other types of indirect contact, such as video call, telephone, messaging, letters, email, and so on. It can also include such things as the sending of school reports and medical information by the parent with whom the child lives to the other parent.
Contact can also be supervised or unsupervised. Supervised contact will be ordered where the court is not sure that it would be safe for the child to spend time solely in the care of one person, so it orders that it should be supervised by a trustworthy person, such as a relative or the staff at a contact centre (see below).
A child arrangements order may also include directions and conditions.
These can include such things as where children should be ‘handed over’ at the start and end of direct contact; who may be present when the handover takes place; who should supervise the contact; and how the parties may communicate between themselves.
Conditions may include prohibiting alcohol or non-prescribed drugs for a set period before or during the child’s visitation.
The court may order contact at a child contact centre if it deems it beneficial for the child’s welfare.
In such cases the court order will state the name of the contact centre, who will provide the centre with a copy of the order, who will complete the contact centre referral form, and who will pay any costs charged by the centre. It will specify who brings the child to the centre and if they can be present during the contact session.
Centre staff may support or supervise the contact, aiding its smooth progress or observing and providing reports on the session.
Lastly, a child arrangements order may also contain ‘activity directions’ or ‘activity conditions’, requiring a person to take part in an activity that would, in the opinion of the court, “help to establish, maintain or improve the involvement in the life of the child concerned of that individual, or another individual who is a party to the proceedings.”
Activities may include such things as parenting classes, and programmes to address violent behaviour.
For more information about child arrangements, and the services we offer, see this page.
