Hello and welcome everybody. I'm Safta Mahmoud. And this is then the second session through data law on looking at child arrangements in private Children law matters where we're looking at options for enforcement and development. So as you know, with this session and I'm taking you through uh often what can be a very contentious area of private Children law uh proceedings where we're looking at the various options that are available when there is either a cessation of child arrangements, spend time with all together or there may be intractable disputes there. And we're trying to really look at various options to ensure that that contact is set up and is maintained. So I'm going through this with you last time. As you know, we looked at various options, we looked at the use of, for example, uh section 11 7, uh we looked at committal, we looked at enforcement orders, the various options and the section 11, financial compensation, conditional switch of uh liquid arrangements. For example, we looked at uh judges meeting Children, the use of 16.4. For example, when local authorities step in, you got section 37 the use of threshold and the use of cost orders. So we looked at various options in that regard. Today, I'm going to be developing this further by looking at some of the other aspects in this area, particularly looking at uh how parental alienation then comes into play in these cases and also the position uh surrounding what we've got when there are cases in delay in these matters, the use of experts, when we're looking at the current thinking in terms of use of experts, and then we'll look at some of the case law, looking at switch of live with arrangements as well. So that's very much the aim. So I'm looking at the laws of July 2023 so early July 2023. Now, one of the other things you do need to think about would suggest is when you're dealing with uh child arrangements cases, in fact, relevant family law applications which could be uh financial remedy cases. Then there is the there is the availability of practice section 36 fe which is the pilot scheme, the family mediation voucher scheme. So you many of you are familiar with this where if the party is concerned, attendee M MA mediation information assessment meeting, either because they fulfill the requirements for attending or the court has directed that they attend. Then in all circumstances, if the matter you're dealing with a private law proceedings relation to Children or for financial remedy, then in all circumstances, uh if funding is available from the MRG, the Ministry of Justice and that's where they can be given some funding towards the cost of attending the mediation if that's what goes forward. So that could cover maybe one, sometimes more than one session depending on where you practice and the costs of attending the mediation because uh they'll get a voucher and that voucher is up to £500 worth. So that would then help in terms of then encouraging them to then uh attend the mediation and with a view to making sure that this case can ideally be dealt with outside proceedings if possible. So that's the thinking behind it. Now, as you can imagine, we, we all often have situations whereby uh persons may well allege uh parental alienation. So let's take the example where as in this case of vh for example, where by here, the father alleged to prevent alienation. So he was the father of a 12 year old boy, the child had been living with his mother since birth and this was a six set of private law proceedings. And the father was ultimately seeking for a transfer of uh child arrangements, live with arrangements from mother to the father. So he thought that the father had been having or the child had been having regular contact with the father up until about a year previously. And uh it stopped about a year previously. So he had been having that contact with the father and with the paternal family, it was a good quality, but then it just suddenly stopped. And this is where the father was given permission to have expert evidence provided particularly on providing an opinion on parental alienation. And the court was satisfied that the father had been enjoying a good relationship with a child until about year previously, as with the paternal side of the uh the family and the father's living arrangements was such that he lived with his family. And he said, look if my son does end up living with me, uh I've managed to get permission from the council to to get a lot conversion done. I've already arranged for the child to attend this local school. I've already looked at really other clubs and associations that he could become member of. So therefore, he put all that together. Mother was very opposed to the child living with dad. And in fact, she also was opposed to the child having a relationship with a father. And this is where the expert evidence was very clear in that the expert evidence that was given was such that uh the expert said that uh as a direct consequence of the mother, having had alienated a child, the child will continue to suffer emotion and social harm. And if that situation was to continue, the child would suffer adverse consequences throughout the whole of his life. This would affect his ability to form meaningful and positive relationships. Both now in the future, it could even cause him depression later on in life. So you can see very, very strong view as to the impact of parental alienation upon his child. The idea that the mother had coached a child, a child had primed a child in having these very negative views of his dad. And this is the long term effect of that potentially so very very serious concerns obviously raised there and in deciding whether or not to allow the child and to go, go and live with the father, the judge amongst other things took into account the fact that their child had been living with his mother during his young life so far for a very long period of time, he was settled at school. He had established his group of friends, he was a member of various clubs and you know, he'd lived for with his young, for his young life. He's only 12 years of old, 12 years of age, he lived with his mom for all that time. So obviously, this was going to be quite a significant change in circumstances. And the judge did say that if he did go to his dad's, he'd be living in dad's part of, of of the area. Uh He'd be going to a new school and make new friends. He'll have to familiarize himself with the environment. So obviously, there was going to be a lot of change there and there was that risk of course, that if the child, if the judge did make this order for switch of legal arrangements that the child could run away, the child may suffer trauma and run away. So there was that risk as well that the judge had to weigh up. This is effectively what happened. The the expert gave an opinion and a recommendation which took the form of effectively preparing a transition plan. And it was this, this transition period would be such that the child would be met at school by the expert would be taken to father's home. Uh The child would spend about two weeks with the father on his own. So it would be just the two of them, the father's family for those two weeks would move out. So it would be just a child and a father for that period of time so that the two can obviously get to know each other and you're effectively distancing that child from the mother and therefore reducing hopefully that level of impact in terms of a nation. After two weeks, the father's family would move back in and then they would continue to live obviously as a family. So he put a child, a father and his family. As for mother, once the child was going to be placed with the father, the contact with the mother would become indirect. So it would be a three month embargo where the contact would be indirect as advised by the independent social worker. And the hope was that by the end of the three months, once that child has almost kind of weaned off that level of alienation, that level of being cold and primed and therefore was in a much more stable environment and uh placement with the father. The hope was that after that the child would be more settled and therefore would be more comfortable and able to then resume that direct relationship with the mother. And in fact, on the facts, it worked. So the judge did want the matter to return back to court to see how this worked. And in fact, on the facts, it did work. So you can see, you know, these attempts, very, very significant attempts that were made did actually work in the circumstances and they can there was this sort of case of am B parental ali. Number one, this was also heard by Mr Justice Khan and this involved uh two Children at this case aged 11 and 14, there were various applications before the court. Father applied for child arrangements. Mother applied for child arrangements, mother applied to discharge the passport order to really allow her to take the child outside the jurisdiction. And the court, the parties had agreed on a shared care arrangement to spend equal time with. But that sadly just don't happen. Mother made allegations against her father and these allegations were pursued and uh in relation to Children subsequently, the mother applied to various share child arrangements or that application was refused contact, sadly, began to fail between the uh the Children and the father. They refused to go to their father's home and they failed to engage with them. So her father was raising allegations of parental alienation. Now this is where the court did give permission once again for a father to be permitted to get expert evidence as to parental a nation. And there was both a psychologist and a psychiatrist who were instructed to provide an opinion and they both provided reports and then there were several reports provided as well. And this was a joint instructed psychologist in particular, in the field of parental, a who were, who provided an opinion. And this is what the opinions were in, in, in essence, uh this is what the recommendation was that if there was that parental nation uh on the part of mother towards her Children, then both Children would feel a real sense of failure to develop a sense of self. Uh They would possibly suffer depression, lack of trust, a great sense of shame and inability to secure healthy future relationships. That was one of the issues. These consequences were even intergenerational. So that uh when these Children grew up, if they were being subjected to parental ali they may subject their own Children to this in the future. And if we can see how it can impact on, you know, for the future, uh Children in, in, in, in the future, there's a risk of physical emotional harm which could be dangerous for them. The Children may even engage in self harm. They may not be able to regulate their emotions, they may even self harm. So you can see the significant impact of parental in nation once again that these experts were highlighting that the court based on hearing evidence, based on the expert evidence did decide to make a child arrangements, order for the Children to live with their father. Uh And the judge was satisfied that that would best meet the children's welfare needs. Uh And and therefore the child, the judge effectively made a transition plan so as to enable the Children and to go and live with their father, but unfortunately, it didn't work at first. So you got AM B POINT nation number two, the Children didn't go, there was little progress made. These Children did run away from the father and went to mother's friend's house. So the judge at this stage thought that the Children were just not ready to make that leap at this stage. There needs to be more work there, more counseling to do to with them, to ensure that they were in a ready state to go and stay with their father. There was also raised the issue of the Children we joined as parties, but no formal application had been made in that regard and the mother had been having indirect contact at this stage with the Children and the court did say that in relation to the 16.4 application that mother made ie for the Children to be joined. The court said that at this stage in litigation, it just wouldn't be appropriate. It would draw these Children into litigation which the mother had already wrongfully used to her own needs. You would move the focus away from the therapy that was being done with the Children. And uh here, the problem is that it just simply wouldn't work, it would actually undo somebody uh and do sort of good work that had already been done with these Children on the facts. The court didn't feel that the 16.4 in terms of joiner would be appropriate in the uh the circumstances and the judge obviously wanted to conclude the proceedings as best as they can, but there was a need for ongoing work with the Children. So therefore, there was, the matter was aot now, then the matter did return to the court once again. So then you had AM B parental number three. And at this stage, this is where the father was specifically seeking costs against the mother for part of the proceedings. As I mentioned in the previous session, that case of CNS that I mentioned of 2022 of, of, of last year, you can see that the court can and will make cost orders in appropriate cases uh If they are satisfied that there has been that reprehensible conduct. And part 28 does allow the court to make such order for costs as they see fit. And here on the facts, the father did, in fact apply for the mother to pay the father's costs of some of the hearings. The cost schedules were filed and served and the, and the mother opposed the question really was as to whether or not the court would be ordering the mother to pay costs in the circumstances. Well, looking at the circumstances, the court was satisfied that actually the mother could afford to pay the cost in the circumstance. And actually the way in which she had conducted litigation, the way she had actually, uh, put, put for these allegations and ran these and, and uh, therefore, the need for expert evidence was one where the court was satisfied that her conduct was unreasonable. The court was satisfied that the mother could pay the costs. In fact, she said that she hadn't had the means, but the court knew and could see that she had in excess of £2 million at the conclusion of the financial remedy proceedings. She had other liquid assets and, uh, she had very modest income there. Uh, she had throughout the proceedings been presented by solicitors and leading counsel. Uh, she had a very wealthy family and the court was therefore appropriate, was satisfied that it was wholly appropriate for the mother to pay the father part of the costs of the uh the proceedings which was therefore duly directed and that was ordered when the matter then finally came before the court as AM B number four, in July 2021. At this stage, the court was satisfied that the Children were now in a better position to be able to make that leap and to live with their father. Uh And uh with a view to then ensuring that their well, her best needs would be met. So in fact, the court made final orders, inspect of care and contact. So both Children would end up living with their father and his wife. The court did make a child arrangements liquid order, which then would give father's wife and therefore the children's stepmother par responsibility, which otherwise you don't have. And therefore that was done. And as for contact between the mother and the Children, uh this was to be continued to be on a supervised basis for now as recommended by the experts. So again, you can see, ultimately, although it took some time, but ultimately, you can see that the court did once again switch live with arrangements in favor of the um the the the father in, in, in these cases. So you can see in appropriate cases, this can and will be done uh if the circumstance is so required. Ok. Now, what I would say is when you do have cases involving parental elimination, it may well be the case that there is going to be delay uh in those matters. And this is where you do need to think about uh delay in these types of cases. This is what the case of Schreder and Austria came, comes into play, excuse me. So this was a case uh whereby you had uh this case, whereby the um father in fact was concerned that the proceedings uh took much, much longer than they should have done. This was uh a case obviously involving Austria. Uh And it's one whereby the father of, of his son and also his stepchild was saying that these proceedings took much, much longer than they should have done. And uh he decided to argue that the length of proceedings concerning its visiting rights had been unreasonable. There was the inaction on the part of the Austrian courts and that had resulted in him being alienated from both his son and his stepson. So he actually raised uh concerns that this was a breach of article eight of not just his article eight rights, but that of his son and stepson in terms of right to respect for privacy and family life. And uh what the court decided here was that although the case before the domestic courts was of some complexity and expert opinion was sought uh that still did not justify the length of time that the proceedings lasted. Uh The applicant didn't appear to have caused any delays himself at this stage. And the court said that that passing of time uh effectively uh was such that the Children were much younger. I mean, the proceedings actually last five years and five months, the Children were much younger, there were three and five respectively at the outside of proceedings was such that it had an inordinate impact upon the relationship that the father had with the Children. They were still young at that time. And therefore, on that basis, the court did make declarations of incompatibility. There was a breach of article eight and therefore limited damages and costs were awarded. So you can see that sometimes these issues may also be raised in these circumstances as well. Now, there's been a lot recently that's been considered and determined in relation to the issue of the use of experts, particularly in parental alienation cases. And this is where we've got this case handed down recently by the president of the family division, Sir Andrew mcfarlane, the president. This is a case on the 21st of February this year. And the case itself was one which involved a case of parental alienation and there was an expert who was instructed and even though the mother agreed to this expert being instructed, as did the father, it was a joint instruction afterwards, when the court did make findings of parental alienation against the mother and which led them to uh the uh the order which wasn't in mother's favor, she sought to appeal on the basis that she said that the expert that was uh instructed was not one uh who was uh uh registered with uh HC PC as, as I'll explain in the moment in so far as being a psychologist who was under one of the protective titles, and therefore she challenged on the basis that she said that this expert's opinion should really not be relied upon at all. Well, the president did say that even though the substance of the appeal did relate to the fact finding hearing in relation to parental alienation. The case was also very significant importance in relation to the experts in proceedings where there were allegations made in the use of uh psychologists, particularly if you've got psychologists who may be unqualified to give evidence on matters of this nature. And what the court said was the element of the argument that was being raised is that only practitioner psychologists who are registered with the HC PC, uh which is given statutory responsibility for the regulation of practical practitioner psychologist may use these protected titles. So these titles are clinical psychologist, counseling, psychologist, educational psychologist, forensic psychologist, health psychologist, occupational psychologist, support and exercise psychologist, registered psychologist and practitioner psychologist. You've also got separately. But also in addition, some psychologists who are referred to as a chartered psychologist, and that's where they've basically uh acquired certain postgraduate qualifications and been vetted by the British Psychological Services. So they are also they also have a protected title. But what was known is that the HPC HC PC is not authorized to protect the basic title psychologist. So therefore, it is possible for both fully qualified and experienced psychologists and also people who are not qualified in psychology to refer to them as a kind of psychologist. And that was really the issue. So you may have somebody who doesn't have the protected title, but nonetheless can still refer to them as themselves as a psychologist carry out psychological services. So for example, the persons who do not have such protected titles would be, for example, an assessment psychologist, a child psychologist, a criminal psychologist, an expert psychologist, a developmental psychologist, consultant, psychologist, graduate psychologist. And this is where what was said was that when you've got unqualified persons who uh may refer to them as psychologists, which they're allowed to do so, even though they haven't got that protected title, this can cause confusion for obviously the public and professionals and the legal profession in that regard. And it was being suggested that there could be this misrepresentation of qualifications there in that regard. But what the president said, he said that when you do have unregulated psychologists as experts, as in this case, you've got psychologist who may not have one dose protected titles. Can we actually use them? Can we even use them in our family court cases? And the president said, well, actually, yes we can because for our purposes when we look at part 25 of the family procedure rules and when you're looking to instruct an expert, we're looking at somebody who is able to give an opinion on that particular matter. We're not looking to see whether they are regulated or not. Um, that's really a matter for them and their accredited body. So therefore it would be wrong. The president said for us to discredit this particular expert who gave an evidence on the basis that she she or he may well be a nonregulated psychologist. They haven't got that protected title. What we should be looking at instead is really looking at their level of expertise and looking to see whether they are the right person to be able to give an opinion on that based on obviously their practical and academic uh experience. And therefore this case did highlight the issue that we need to really be very clear about the persons that we are instructing to make sure that they are the right person for the work that we want them to do. So that even though therefore, there wasn't a kind of basic definition of an expert in family proceedings, uh an expert is basically a person who provides expert evidence and say for those people are excluded from giving evidence. The question of whether somebody is qualified or not is, is a matter for the court in each individual case in that regard. But the judge did say the President did say that therefore, we need to tread with caution in these cases. And in every case, the court should identify therefore, whether the proposed expert is HC PC registered or not. And in fact, it's where they are not. It's for the court to indicate in a short judgment why? Nonetheless, they feel that that person should be instructed. So that's a very sensible way to do it. So the court can't prohibit the instruction of an unregulated psychologist. But if they find out the psychologist who has been instructed is not he PC registered, it may be appropriate to indicate in a judgment why nonetheless, they are still being instructed in the circumstances. And with that in mind, this is where uh there has recently, as of the first of June, this year been some more guidance that's been handed down. Uh uh This is the guidance on the use of psychologists experts in the family courts in England and Wales standard of competencies. Uh I'll put the link there for you and it's a joint document that's been put together by the Family Justice Council. Uh and also the British Psychological Service and it provides some very useful guidelines by instructing experts in family proceedings. And one of the things it talks about is that it sets out specifically guidance in relation to instruction of a psych psychological expert witnesses. And there's a really useful appendix there which helps to look at uh instructing psychologists. So for example, as practitioners, what we need to be doing is when we are looking to instruct a psychologist, we should be asking them or certainly the governing, whoever we're instructing uh to confirm whether or not they are HC PC registered where they are chartered. And if they're not, uh we need to then see what kind of experience they do have and why they feel that nonetheless, they still have the expertise to be able to give us that particular opinion. We need to know what the level of expertise is. For example, CPD, training, academia practice and what experience they do have in giving uh reports and opinions in family cases. And that should be made very clear when we are then looking to instruct them in court. And as you can see, uh the president has said in this case that if you are looking to instruct an unregulated psychologist, there should be a short judgment as to why that person is. Nonetheless, I failed to be the right person to be able to give that opinion into circumstances. So you can see it's a very, very important point, right? Just for the last part of this session. And what I wanted to do is just take you through a few other cases where the courts have dealt with matters surrounding uh enforcement and various ways of dealing with this. So you've got this case of, we are, for example, termination of contact in January 2019. And what this case looked at was the fact that mother had here, uh coached and primed a child, Children to have very negative views about the uh the father. So this is where the mother encouraged the child to make allegations against the father to police. These were untrue, mother had coached and primed a child to make allegations against the father which were untrue. She'd lied about the father. She had been implacably hostile towards the father having contact. And for some years, she had alienated a child. So you can see this is very clear evidence of parental alienation once again. And the evidence of the clinical psychologist was that the efforts to reinstate contact should continue. Uh In fact, the evidence suggested that if the child was not, if the court was not to continue with its pursuit of allowing his contact to be maintained between the child and the father, then the child would suffer significant harm. Uh If that, if that really was lost and the court it was felt should have really extended the proceedings at first instance to allow more time and effort to be used to try and maintain that link between the father and the child. So they should have extended the proceedings rather than concluding the proceedings at that stage. And in fact, this decision emphasizes that sometimes the courts will of course make orders for no contact. So this case got this case of re M but it's a fundamental element of family life that contact between a parent and the child is fundamental contact between a parent and a child should be terminated only in exceptional circumstances where there's cogent reason. And here on the facts, what the court should have done is complied with uh, the, the requirements which is that there's a positive obligation on the state and they want the judge to take whatever measures are reasonable and necessary to ensure that you do reconstitute that relationship between a parent and a child in a short and medium term. So here at the end of the road, so to speak, had not been reached. The expert did say that the proceedings should have really been extended to enable more work to be done to try. And we introduced that level of face to face contact with the child, which on the facts was necessary for the benefit of that child and in relation to the relationship with the father. So you can see the, the thinking behind that. Then you've got this other case of re a a child is 2013 decision. And what this case highlights is that the views of the implacable parents should not deter the court from ordering contact. So if for example, you've got one of the parents who is uh saying that whatever the court orders, they're not going to be complying with it, that shouldn't prevent the court from obviously making orders if they are necessary in these circumstances. And if that means for example, switching liquid arrangements, and that's what should be done in these circumstances. So here, his lordship did say that contract should only be refused, would a court satisfied that there is a serious risk of harm? If the contract were to be ordered here, that was clearly not the case. You shouldn't let the person who's uh being hostile, deterred a court from making the order if it's felt necessary. And in fact, what the president said here, what Lord Justice Macfarlane said, Mr Justice Macron, rather sitting as a high court judge here is his lordship said that um the court should actually be setting a strategy. So if, for example, you've got father, for example, he's taken the matter back before the court because the contact has been stopped, then he's bringing it back for enforcement. He's not bringing it back for the court to really, really look at contact. He's not asking for a variation. He's saying that actually I'm asking for enforcement here and therefore the court should be setting a strategy for the case and to stick consistently to that. So therefore, there should be an express order required, a person would care to comply with the contact arrangements and if those are not complied with them, and therefore, it's breached. These are the consequences of that. So unless there's good reason the court should then be complying with the consequence of breach such as as I mentioned earlier, those provisions under section 11 of the Children Act, IIE enforcement orders, financial compensation, the activity direction, the conditions. Because if you don't do that, you're then abandon that strategy for making sure that one is then dealing with enforcement appropriately. So very important to make sure that this is dealt with in that regard. And then you've also got this case of VG intractable dispute uh where the leading judgment was handed down by uh lawyer Peter Jackson. This particular case that involved two Children who were aged eight and 11, they live with their mother. Uh They've been separated from the father about six years previously and the Children had seen very little of their dad over that period of time, the father had applied uh successfully to a full replacement of the caf CASS office on the basis that there was a, there was a uh a conversation or meeting that was said to have taken place, but it hadn't. The father had a very negative view of professionals and also made criticisms against the court and other professionals here. And uh this is where the court in relation to father's application for face to face contact, refuses application. The court in fact, made a 9 to 1 14 order for three years. They made uh an order that the child, child live with the Children with their mother, father's application for face to face contact uh was refused and he was to have only indirect by monthly updates. And this is where he appealed. And he said that the judge had failed to consider all reasonable routes towards maintaining a relationship uh with the uh with the Children. And he said that the judge had taken a very linear, linear approach and therefore not really looking at all the alternatives in the circumstances. And he also said that the 91 or 14 order that was made was inappropriate in the circumstances. Well, in fact, on appeal, the court took a different view. They said actually the judge had considered all realistic options. They had looked at the possibility of, for example, a complete ban on contact. They looked at obviously the option that was taken by the judge. Another option was the judge considered significant indirect contact. The judge considered direct contact. The judge considered switching live with arrangements to father, the judge considered a journey. So actually all of these other options were explored were considered in the circumstance and therefore on that basis, it was going to be hard for the father to argue otherwise, uh in terms of the 91 14 direction, uh this is where many of you will be aware that this is case of ep uh section 91 14 guidelines. We heard the court did say that in so far as 91 14 directions are concerned, these historically used to be used where one is showing that there's been a history of un meritorious unreasonable applications. But you could also get a 9 to 1 14 attached where for example, if the person was to reapply, it may subject a child and or the primary carer to unacceptable strain. And this was one of those cases where here the court could actually impose a restriction. Uh even though the person may not have applied on the basis, they may uh subject that person to an unmanageable risk of harm here and it could be imposed without limitation of time. So here on the facts, the fact that the order was made for that period of time, which was for three years, the court did feel was appropriate and necessary in the circumstances now tied in with this. You might also want to know that since uh the 22nd of April 2022 because of the Domestic Abuse Act of 2021 we've had section 91 A which has really formed part of section 91 14. So that now because of the Domestic Abuse Act, if your client is able to show that uh by not attaching the 91 14 order, it would subject your client and order charter risk of harm, which could take the form perhaps of say coercive and controlling behavior. Then that could be another reason why the court makes the section 91 14 order. So you can see the breadth and opportunity of attaching these 91 14 orders is, is greater now than perhaps what it has been previously. Ok. So you can see the, the thinking behind that. And if on the facts here, the court was satisfied that in fact, all realistic options had been considered by the judge, right? So that brings this session to an end and also really this brings to an end and this uh, this uh program where what I want to do that is go through with you the various options in so far as the position is concerned with enforcement in these Children law cases and looking at the various options that may be available. So as you can see, we've looked at various options, uh some which will be more necessary and reasonable and will be attempted than others. And there is no one size that fits clearly. You got to look at all the circumstances to see which one would be appropriate in the circumstances. So can I thank you very much indeed for listening. I hope that's been a useful session for you and I'll speak to you next time. Thank you very much. Indeed. Bye for now.
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