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Parental Alienation and Freedom of Belief

View profile for Karen Johnson
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Parental Alienation and Freedom of Belief

So what is Parental Alienation? This is a term which refers to a situation when a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.

Whilst a child’s wishes and feelings are to be taken into account by the court, this has to be considered in light of their age and understanding. Given that it is usually considered to be in a child's best interests to be having a meaningful relationship with both parents. I would consider that whatever the child’s age, if they are expressing reluctance towards spending time with their other parent, consideration must be given. 

This should be as to why and whether those views are genuinely held, as a result of the child's own experience or reflective of something that the other parent has said or done. 

The behaviour may or may not be intentional and alienating behaviour might include; 

  • talking about the other parent in derogatory terms
  • oversharing details of parental disputes
  • providing unnecessary reassurances about time spent with the other parent
  • suggesting that the other parent does not love them
  • making vexatious and unsubstantiated allegations
  • inferences of abuse

Where parental alienation is found, a court must balance the benefits for the child in enjoying a relationship with both parents as against the harm that might be caused to the child in forcing the point. 

Differing religious beliefs between parents can be a huge source of contention between separated parents. This might cause disputes as to practical aspects of a child’s upbringing such as:

  • medical intervention 
  • philosophical/ emotional conflicts 

Particularly for those religions who teach that those who do not share the same beliefs are lesser beings or destined for bad things. 

In those cases, the religious beliefs and teachings may themselves encourage conflicted feelings. It is taught that one is evil or destined for something bad to happen or encouraged to disassociate from those who do not share the same beliefs, therefore, alienation.  These cases will often require the court to intervene in parental dispute and religious freedoms.

Where the court is faced with a case in which religious beliefs are an issue, the court's position must be one of neutrality and tolerance for diversity of religion and beliefs. In the leading case of Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233; [2013] 1 FLR 677 the judge stated; “It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, so long as they are legally and socially acceptable,…and not immoral or socially obnoxious or...pernicious.”

Whilst the idea of court intervention may not sit comfortably with the notion of freedoms, it is extremely important to understand that one person’s freedom of belief does not stand in isolation. The court is able to intervene to the extent that it is necessary ..”for the protection of the rights and freedoms of others”. 

In cases where the court is asked to make decisions concerning children, those decisions are based upon what is in the best interests of the child. 

This requires the court to consider various factors including;

  • the child’s wishes
  • the child’s needs
  • the parent's ability to meet those needs
  • any risk of harm
  • the effect of any change in circumstances.  

The balance for the court in these cases is not to judge the validity of the religion or beliefs but to consider the impact of those beliefs upon the welfare of the child. 

This was an issue which was recently considered by the Court of Appeal in the case of ReS (Parental Alienation: Cult) [2020] EWCA Civ 568. 

The case involved the appeal of a father against a decision refusing his application for variation of a child arrangements order from shared care to an order that his 9 year old daughter lives with him. The mother was a student of Universal Medicine, an organisation founded in Australia by Serge Benhayon.

The teachings of the organisation required followers to not eat certain foods, how to speak, how to move, what to wear, read and watch and what to say to non-believers. 

Father had long-standing concerns about his daughter's restrictive diet, inconsistent contact and concerns that the mother was part of a cult. 

The mother raised concerns with regards to possible sexual abuse but which were never substantiated. 

In 2015 the father sought a shared child arrangements order to regulate the arrangements for the child and a prohibited steps order with regards to her involvement in Universal Medicine. During those proceedings, a Cafcass Officer was asked to prepare a report. This considered that although no current risk of harm, the reasoning of Universal Medicine was likely to cause the child some confusion and she was concerned about the effect of some of the beliefs. 

She recommended that the child's involvement with the organisation be limited until she was old enough to make her own decision. Subsequent to that, an order was made by consent providing for shared care and a prohibited steps order restricting the mother from involving the child with Universal Medicine and its teachings.  

Shortly after that order was made, the mother made further unsubstantiated allegations of sexual abuse and then went on to breach the prohibited steps order. The parties also jointly saw the child's doctor and the father raised concern as to her limited diet. The doctor advised the parents to ensure that the child was aware that she was not allergic and expressed concern that she might develop an eating disorder. 

In October 2018, there were defamation proceedings in Australia bought by Universal Medicine against a former student who had accused them of a variety of fraudulent and criminal activities. The claim failed and the court found that the organisation was a socially harmful cult and Benhayon to be a sexually predatory charlatan who had assaulted female students and had an indecent interest in children as young as ten.

In January 2019, the father sought to return the matter to court. This was a result of continued difficulties with contact, alienation and emotional harm following the mother's insistence on adhering to her beliefs and her failure to adhere to the prohibited steps order. 

Due to the nature of the concerns, an Independent Social Worker was appointed and concluded that the mother was deeply steeped in the teachings and she would need support to leave. She considered that the mother's involvement in the movement was harmful to the child. As a result of the restrictive diet, behaviour and beliefs had impacted upon the child’s relationship with her father,whilst the mother continued to adhere to those practices and beliefs the child would be at risk of further alienation. 

Ultimately the court came to the same conclusion but did not agree that the order should be varied so that the child would live with her father. The main concern of the judge was that changing residence and restricting contact with the mother could cause significant harm. 

The judge considered that the mother had not fully appreciated the nature of the findings made about the organisation and urged her to read the Australian judgement. 

It was also relevant that whilst the mother complained that it was against her rights to force her to give up her religion, she would do whatever was necessary to keep her daughter with her. 

The judge, therefore, ordered that the shared residence order would continue and that the mother should provide undertakings in line with the previous prohibited steps order and to disassociate herself from the religion. 

The father sought permission to appeal upon receiving the judgement. A further hearing took place in order to consider the undertakings to be given by the mother. These could not be agreed as whilst the father sought to suggest undertakings largely in-line with the judgement, the mother was only prepared to provide something less specific. 

Unfortunately, there had been increasing difficulty in managing the contact arrangements and although dismissing the father's application, the court ordered the mother to file a statement dealing with the recent difficulties. The court ordered both parties to undertake further work with the Independent Social Worker. 

The basis for the father's appeal was that the judge was wrong in his assessment. He was wrong of the risk that followed from his findings and in his decision that undertakings from the mother were sufficient protection for the child, having found that the child was becoming alienated from the father. 

The judge was wrong not to consider that this, in conjunction with the other risk, demanded her removal from the mother’s shared care. The judge was wrong not to particularise the detail of the undertakings he required the mother to make or require that these were actually made before making the order.

The Mother cross-appealed claiming that the judge should have treated the hearing as a fact-finding hearing only, was wrong not to find that the father is a coercive and controlling

  • individual, had allowed consideration of Universal Medicine to overshadow “deeply
  • concerning evidence about father's conduct”: The child’s sore vagina and bed-sharing,
  • and coercive questioning of the child and was wrong to ask the mother for undertakings and then be unwilling to accept them with the father’s insistence on disproportionate undertakings further example of his being coercive and controlling.

The Court of Appeal rejected the mother's appeal. They considered that it was absolutely right for the court to consider all matters relevant to the child’s welfare and not just limit consideration to whether; 

  • there had been a breach of the previous order 
  • had been entitled to find that the father was not coercive nor controlling
  • that the mother's unsubstantiated inference that something improper had been going on was an unjustified slur 
  • that the undertakings proposed by the father had been broadly in line with the judgement 
  • the mother's right to freedom of belief and protections from coercion did not give her the right to harm others 
  • had been entitled to make findings that the mother's involvement in the organisation was causing the child harm. 

In relation to the father's appeal, the court considered that whilst the court had been right to identify the risk of harm to the child, the judge had erred in balancing the emotional harm. Emotional harm of the child being alienated from her father and the harm that would be caused in transferring residence to the father. This placed too little weight on the medium to long term harm that would be caused to the child if she continued to be alienated from her father. 

The original judgement had erred in accepting that the mother would willingly turn her back on her beliefs, this placed too much weight on her statements that she would do so. Also, there was little weight on the fact that the Independent Social Worker had recognised that she would need help to do so and that the mother's actions did not support what she had said. 

By the time of the appeal, it was apparent that:

  • she still had not read the Australian Judgement
  • did not accept the criticism of Universal Medicine 
  • considered the attempts to address the issue as infringing her rights as control, rather than protecting her child from harm. 

The court also considered that in those circumstances the judge had erred in determining the father’s application without ensuring that adequate provision was in place by way of agreed undertakings or otherwise. 

The court also considered that the judge had erred in his approach to addressing the concerns of alienation and that simply requiring the parties to work further with the Independent Social Worker in absence of any incentive was unlikely to be successful. 

Having allowed the appeal, the court considered whether it should make a decision or alternatively remit the case for further hearing. 

The court considered that the child is to be distanced from Universal Medicine and shared residence will only be possible if the mother too entirely distances herself. If she does not, then the child should live with her father. 

The court felt that there was sufficient evidence to make an order transferring residence, but the impact this change of residence would have on the child, they decided to remit the matter for further hearing before the President of the Family Division. In effect providing the mother with one last chance to address the concerns. 

Cases such as these are very difficult and emotive. Where there are concerns of alienation is it extremely important that this is identified and addressed at an early stage. 

If you are concerned that your children are being subjected to alienation, or having problems resolving the arrangements for your children, give us a call for a free chat about what we can do to help. I can be contacted on 01206 217305 or karen.johnson@birkettlong.co.uk. 

 

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