Malign influence on welfare of child
Two of the more near intractable aspects of welfare decisions on resolving issues between separated parents must be parental alienation and the malign influence of cults to which one parent belonged. Both of these featured in Re S (Parental Alienation: Cult)  EWCA Civ 568 (29 April 2020) where, nominally, parents had a shared parenting order for their nine year old daughter, ‘Lara’. The father (A) found himself in the position of being increasingly excluded even from that. His daughter’s behaviour towards him progressively alienated them; and there were ill-formed and not pleaded innuendoes from the mother (B) him as to A’s supposed sexually inappropriate behaviour towards Lara.
A applied for an order that Lara live with him. The circuit judge at first instance, HHJ Meston QC, rejected her allegation as to his coercive control and made findings fully supportive of A’s case. However, he refused his application to vary the child arrangements order. This was over powerful recommendations as to the welfare of Lara from an experienced independent social worker. The appeal was leap-frogged direct to the Court of Appeal (Family Procedure Rules 2010, r 30.13(1): ie where an important point of principle or practice arises) when permission to appeal was granted by Williams J. And this was on the day after the appeal notice was filed on 13 February 2020 and shows the Court of Appeal truly living up to its own assertion – see later – of the need to deal with alienation cases with ‘exceptional diligence’.
Decision of the Court of Appeal
Giving the judgement of the court (McCombe, King and Peter Jackson LJJ) Peter Jackson LJ dealt fully with (1) ‘freedom of belief’ and (2) ‘the law concerning parental alienation’. Of the first the court drew on Re G (Education: Religious Upbringing)  EWCA Civ 1233;  1 FLR 677, as had HHJ Meston, and concluded (at ): ‘So in the present case the court must respect the mother's beliefs to the extent that the teachings of Universal Medicine [the cult of which B was an adherent] are worthy of respect in a democratic society, but Lara's welfare will always be the paramount consideration.’
On parental alienation, the court stressed the importance of taking this by the scruff of its forensic neck as early as possible:
' … In a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child's medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent's right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it.'
This provides a clear way forward, if it can be achieved, for any parent faced – or apparently faced – by alienation of the other parent on child arrangements; and it can be read alongside the avoidance of delay assertion of Children Act 1989, s 1(2).
The court set out the facts and the judge’s findings very fully. One of the more striking findings – but of which the mother seemed remarkably unconcerned – was as to the founder of the cult against a ‘student’ who had made allegations of fraudulent activity. A four judge Australian court and jury dismissed his claim. Of this case, the Court of Appeal said:
' … In extensive findings [of the Australian court], contained in the final determination of Justice Julia Lonergan on 6 December 2018, are recorded at Benhayon v Rockett (No 8) 2019 NSWSC 169. Amongst other things, Universal Medicine was found to be a socially harmful cult and Benhayon to be a sexually predatory charlatan who had assaulted female students including Ms Rockett [the student], and had an indecent interest in children as young as ten. It was described by the judge, when making an indemnity costs order, as a comprehensive victory for [Rockett] and a comprehensive defeat for [Benhayon].'
The judge accepted the father’s case and that he had proved the facts on which it was based; but concluded that Lara’s living arrangements should stay the same. The Court of Appeal concluded that the judge had reached the right findings of fact ‘so far as they went’ (), but that the slight measures he took to mitigate the harm he had found were ‘highly unlikely to be effective’ (). The judge had made the right findings on the facts, but reach the wrong conclusions derived from those facts; and, faced with the clear finding of an independent social worker as to the dangers to Lara, he did not explain sufficiently why he differed from her conclusions.
They therefore allowed his appeal and remitted the case to Sir Andrew McFarlane, President of the Family Division for a final hearing in July. The judge’s findings of fact, amplified by those found by the Court of Appeal, should remain in place. They could not be challenged further. Only updating evidence was to be put before the President.
Innuendoes of sexual abuse
During the course of the case B had taken on a new advocate Ms O’Connor who, without seeking permission advanced what amount to a cross-appeal. When challenged on this by the court Ms O’Connor sought permission, which was refused.
As to the sexual abuse innuendoes, the Court of Appeal were stern:
' … The mother has at various times since 2015 raised the issue with the intention of conveying some sexual risk to Lara from her father, but there has never been any evidence to support the suggestion. Nor was the allegation stated during the course of the proceedings. Despite that, during the hearing below and during this appeal, the mother has continued to trail her coat on this point, with clear insinuations in counsel's submissions that something improper may have been going on. We agree that this submission is an unjustified slur that should never have appeared in professionally drafted documents.'
The slur on the father should not have been raised; and should not have been part of ‘professionally drafted documents’ – a severe warning from any higher court as to the inappropriateness of allegations made without evidence in any pleading or other document.