The Minister for Courts and Justice (Sir Oliver Heald)
First, may I congratulate the hon. Member for Rochdale (Simon Danczuk) on securing this debate and on his interesting and thoughtful contribution? It is right to say at the outset that the Government are considering family justice matters at the moment with a view to having a Green Paper later this year. With that in mind, he has highlighted an important concern. I was sorry to hear of his own personal experience of parental alienation, which must make this an issue of particular concern to him, and the House will have been moved by that.
I am sure that everyone in the House will agree that parental separation is one of the most traumatic events for a family. It affects both the child and the parents. Many separated parents do manage to overcome that agony of separation and work out child arrangements in a way that values and encourages the ongoing involvement of each other, and the hon. Gentleman mentioned his own experience of doing that. Other parents, for a variety of reasons, find themselves in conflict with each other when faced with the need to make important decisions together about the future of themselves and their children. All too often, the needs of the children are lost in that emotional turmoil.
The breakdown of a relationship presents its own difficulties for children. The emotional upheaval of separation is made worse when one parent—more commonly, but not always, the parent with whom the child resides—seeks to turn the child against the other parent and make them appear anxious in their presence. Although there is no generally recognised syndrome—as the hon. Gentleman called it—of parental alienation in this jurisdiction, it does not mean that the problem is unrecognised by the family justice system. What matters is not whether parental alienation is a syndrome, but what the impact is on the child. The Government are aware of the difficulties that a parent can face when the other parent seeks to alienate them from their child’s life, and I am sure that hon. Members know that from their own constituency work, because it is a point that comes up in surgeries. Such behaviour can never be acceptable and it has a traumatic effect. Like domestic abuse, it can intensify emotional harm to children. However, I can assure hon. Members that the law takes the matter seriously. There are mechanisms in place robustly to address parental alienation when it features in child arrangements cases before the family court.
When a parent applies for a child arrangements order determining with whom their child is to live or spend time, the court must by law presume that the child’s welfare will be furthered by that parent’s involvement in their life, unless there is clear evidence to the contrary. When making any decision about the nature of that involvement, the child’s welfare is always paramount, but that presumption applies. This position contrasts starkly with the issue that we are debating this evening involving parents who unilaterally seek to undermine the importance of that law, which attaches importance to both parents’ involvement—always assuming that it is safe and in the child’s best interests to do so.
Where the court is dealing with a child arrangements dispute, the Children Act 1989 sets out what is known as the welfare checklist, which includes having regard to factors such as the ascertainable wishes and feelings of the child concerned, commensurate with that child’s age and level of understanding. If the court is concerned about what those wishes genuinely are and the feelings involved, it can request the Children and Family Court Advisory and Support Service—CAFCASS—to prepare a welfare report on the child’s wishes and feelings as well as any other any matters relevant to the case.
Tim Loughton (East Worthing and Shoreham) (Con)
I apologise for not being present for the beginning of the debate, due to its starting early. My right hon. and learned Friend is making some good points, but is it not the case that the problem with child arrangements orders, which represent a diluted form of the shared parenting principle that should have been in the Children and Families Act 2014, is that the resident parent can usually game the legal system by not abiding by contact orders repeatedly? The non-resident parent constantly has to go back to court and does not see the child, so that over a matter of months that then becomes years the child does not know that parent any more, and the child’s wishes and feelings may change to, “I don’t know that parent. I don’t want contact with them.” That is the real cause and the most common form of parental alienation.
Sir Oliver Heald
If my hon. Friend bears with me, I think I will cover those points in my next remarks, but if I do not, I give him full licence to have another go.
CAFCASS is a professional social work organisation and its practitioners understand and recognise the potential for what is often called implacable hostility by a resident or non-resident parent in a child arrangements case. CAFCASS practitioners are professionally qualified social workers with a minimum of three years’ post-qualifying experience. They are aware of the potential for children to be influenced by parental views and are alert to the possibility of parental alienation throughout a case.
Where the child presents adult themes or language, the CAFCASS practitioner will explore these and report on such matters to the court. The idea is to intervene as early as possible—a point made by my hon. Friend the Member for Fareham (Suella Fernandes). CAFCASS has a range of tools available to assist its practitioners in assessing the presence or the danger of alienating behaviours. They include a tool for use in direct work with the family, where the child rehearsing adult complaints or describing parents in wholly positive or negative terms will indicate their exposure to alienating behaviours.
There are other measures that can be taken. In highly intractable cases the court can make the child who is the subject of the proceedings a party to the case, with their own representative in court, as well as a guardian. That will ensure that the child’s wishes and feelings are fully heard and properly investigated.
The Government recognise, of course, the potential for parental alienation to continue after an order setting child arrangements has been made. A parent who has attempted during the proceedings to alienate the child against the other parent and failed may then seek to frustrate the operation of the order. The court has a general power when making a child arrangements order to direct CAFCASS to monitor compliance with the order and report to the court. A parent may also apply to the court to vary or revoke the order.
Where there is wilful breach of a child arrangements order, the court has powers to deal with that. It may require the person in breach to undertake unpaid work or to pay financial compensation—for example, when a parent has spent money to come to see a child. It is a contempt of court not to follow a court order, and the available punishments include fines and imprisonment, but the court must consider the reason for the breach and the child’s welfare when deciding whether enforcement action is necessary to secure the other parent’s involvement in the child’s life.
Sir Oliver Heald
I am just about to finish replying to my hon. Friend’s previous intervention. He will have an opportunity to intervene again.
In an exceptional case, the court could decide to change the child’s residence to the non-resident parent. As my hon. Friend knows, I have practised in the courts and I was involved in a case where that happened. The case was intractable and long running; one parent was not willing to give any time with the child to the other parent, and in the end the judge transferred the order. I have to say it was not a great success, but that case shows that a powerful remedy is available. Of course, such a change would be profound for the child and could be contemplated only if their longer term welfare needs outweighed the short-term impact on their wellbeing, but in some cases it is an effective option.
Implacable hostility and alienating behaviour by the resident parent are difficult issues for the family court to address and are very distressing for the parent on the receiving end. We need to understand something about the nature and scale of the problem. Professor Liz Trinder of the University of Exeter did a research study in 2012, looking in detail at 215 enforcement applications relating to child contact orders. It was found that alienating or implacably hostile mothers represented a small minority—about 5% of cases. More often, enforcement cases involved parents in continuing high conflict with each other, which prevented them from making arrangements that worked in practice. The second largest group involved cases with significant ongoing welfare concerns, followed by cases where older children just wanted to reduce the amount of time they were spending with their parents, wanting to take part in other activities instead. I can say, as somebody who has done such cases, that the allure of the football pitch or friends down the road sometimes gets in the way as children get older.
I do not for one moment wish to diminish the impact of parental alienation when it occurs. As I have already made clear, such behaviour is unacceptable, but it is important to understand that what may appear to be alienating behaviour by a resident parent may, in fact, be the result of other concerns. It is a mixed, complicated picture. More broadly, I would like to address the perception that the family justice system contains an inherent inequality—I think that is my hon. Friend the Member for East Worthing and Shoreham’s point, but I will let him have another go if I am wrong—against fathers seeking to live with or spend time with their children.
As I hope I have explained, the legislative framework governing child arrangements orders and adjudication of disputes by the family court is gender neutral. It is focused—and this is right—on the welfare of the child, as opposed to any perceived rights. Each case is determined on the facts and the individual welfare needs of the child by an independent judge assisted by experienced CAFCASS practitioners. Judges, for their part, recognise the far-reaching nature of the decisions they make for those involved. I certainly know of cases where there has been this sort of appalling behaviour, but later on it has come to bite the party that was involved because the child has not accepted it in the longer term and has wanted to know both parents.
Tim Loughton
The Minister is being very generous in giving way. I do want to have another go because he is making some very good points. To come back to the available penalties, he mentioned imprisonment. Well, of course, that would fail the welfare checklist for the child in the Children Act 1989 in the vast majority of cases because it is not in the best interests of that child for his or her parent to go to jail. I do not expect him to do this now, but could he provide us with some figures as to the number of occasions on which meaningful penalties have been brought against somebody who is a serial frustrator of contact—that form of parental alienation? How many cases of transfer of residency of a child have there been? I think he will find, notwithstanding his single case, that the actual number is minuscule. That is the nuclear option and the deterrent, but it is not used.
Sir Oliver Heald
I am always happy to discuss these matters with my hon. Friend, who is very knowledgeable in the area of children’s protection and who takes a particular interest in a range of social and caring matters concerning children. I am more than happy to look at what information is available for him. It is true that we have done some work looking at pilots and particular examples. The Department for Education also has a series of initiatives, which are not all about this particular issue but are all in the field of family justice. I will also look for what further information I can give the hon. Member for Rochdale about that particular scheme.
The law does not grant either parent any right to any particular amount or pattern of involvement in the child’s life. Parental involvement may take many different forms, from staying overnight, at one end of the spectrum, to indirect involvement through letters and cards, and it often depends on the geographical circumstances of the parties, too.
If the court determines that a particular arrangement—for example, a shared residence arrangement—is necessary to meet the child’s welfare needs, it can make an order to that effect. I am sure the House will agree that the welfare of the child, including any concerns the court may have about safety, must always come before the wishes of the adult parties. The current law gives the court wide discretion to address the range of welfare issues that can affect children.
I am conscious that this issue transcends party lines, as we have seen tonight. It is an important issue for those fathers who seek to maintain involvement in their child’s life. I hope I have addressed many of those aspects of parental alienation that naturally concern Members.
In concluding, I would like to thank everybody who has made a contribution. I thank the hon. Member for Rochdale for calling the debate and making a speech, but I also thank those who have made interventions, which have raised important points. The Government do not have plans immediately to depart from the current law, which puts children’s welfare first and foremost when the family court considers matters affecting their lives and futures. However, as I said at the beginning, we are giving consideration to what further changes may be needed to the family justice system, and we will seek views on our proposals later this year. That may well offer the hon. Gentleman and others an opportunity to set out their concerns if they feel that we have not gone far enough or that there are other matters we need to consider in detail. In the meantime, I will certainly reflect carefully on what has been said in the debate tonight.
Question put and agreed to.