Parental Alienation - Court of Appeal gives guidance
Parental Alienation
This document summarises the recent decision of Re S in which the Court of Appeal considered the impact of a parent’s involvement in a ‘cult’ on a child’s welfare. The case has particular significance for cases involving parental alienation and provides a useful reference point for a summary of the law in this area.
Re S (Parental Alienation: Cult) [2020] EWCA Civ 568
Background
Re S concerned a father’s appeal following the refusal of his application to vary an existing Child Arrangements Order (“CAO”) that would provide for his 9-year-old daughter to live with him.
At first instance, HHJ Meston QC found that a process of alienation of the child from her father had begun in the context of the mother’s adherence to Universal Medicine; an organisation considered by the judge to be a cult with potentially harmful and sinister elements. Despite this finding, he felt that the removal of the child from the mother’s care would be so harmful and distressing that such a change should not be attempted unless the effects were outweighed by the harm to the child of continuing to be exposed to the beliefs of Universal Medicine. Thus the previous CAO was left in place, save that the mother was ordered to give several undertakings to the court to disassociate from Universal Medicine.
The father appealed on the basis that this decision did not address the growing harm his daughter was suffering and that, having found that the child was becoming alienated from him, the judge was wrong not to consider that this demanded her removal from the mother’s shared care.
Facts
The child was born in 2011 and the parents separated when the child was approaching 1 year old. The father moved out of the mother’s home and had contact with the child for a few hours at a time, increasing to alternate weekends.
At the time of the separation, the mother became an adherent of Universal Medicine, an organisation founded in Australia by Serge Benhayon. At trial, HHJ Meston QC referred to extracts from evidence given in Australian litigation which described Universal Medicine as including strict teachings about food, clothes, work, physical exercise, how to speak and move, how to treat children, how to dispose of their money, who to talk to and what media to read/watch (para. 16). It also included specific beliefs about the importance of moving in an anti-clockwise direction and that consuming gluten will prevent reincarnation. Followers of Universal Medicine have been described as losing the capacity to question or even scrutinise what they are being taught (para. 17).
The mother engaged in monthly sessions with a ‘healer’, cut gluten and dairy from her and her child’s diet and attended events at the organisation’s European base in Somerset, sometimes taking the child with her.
In 2017, an order was made by agreement incorporating a shared care arrangement together with a prohibited steps order barring the mother from, among other things, imposing any Universal Medicine teachings on the child and taking them to any premises at which Universal Medicine events were occurring. In 2019, the father issued his current application seeking a variation of the 2017 order citing the mother’s continued involvement in Universal Medicine and its impact on their child.
The Court of Appeal
The Court of Appeal began by considering the case law concerning freedom of religion and belief under Article 9 ECHR (Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233) and supported the trial judge’s conclusion that the court should not become unnecessarily involved in criticisms of minority groups with unusual or controversial beliefs or practices (para. 4). The court should only be concerned with the welfare of the child and with any harm or potential harm indicated by the evidence. Thus while the court must respect the mother’s beliefs to the extent that the teachings of Universal Medicine are worthy of respect in a democratic society, the child’s welfare will always be paramount (para. 6).
The matter in issue for the court was the trial judge’s evaluation of the child’s welfare in light of the harm that he identified. It was held that while the trial judge accurately identified the potential harm arising to the child, there were errors in his balancing of the competing risks (para. 89).
Firstly, the court agreed with the judge’s findings that there was an immediate risk to the child’s welfare in all aspects arising from the mother’s adherence to Universal Medicine and that such a risk should not be allowed to continue (para. 90). However, they disagreed with the measures adopted by the judge to mitigate this risk. The mother had been an adherent of Universal Medicine for almost all of the child’s life and there was clear evidence at trial that it was unlikely she could extricate herself without significant therapeutic support and a true commitment to do so.
Furthermore, the mother had disregarded the judgment in the Australian libel case of Benhayon v Rocket (No 8) [2019] NSWSC 169 which found that Universal Medicine was a ‘socially harmful cult’ and that its leader, Serge Benhayon, had assaulted female students and had an indecent interest in children. The trial judge had held that this decision was one that no reasonable parent in the mother’s position could disregard, yet this is exactly what the mother had done throughout the proceedings. From beginning to end there was no sign that the mother actually wanted to distance herself and her child from Universal Medicine (para. 92) and she had not begun to understand the concerns expressed by others (para. 101). This, it was held by the court, is how cults work.
Secondly, having found a process of alienation had started to occur, the trial judge did not take effective steps to counter it (para. 94). The mother had been making allegations of sexual impropriety against the father since 2015. The court held that these unfounded allegations were capable of providing support for the father’s case in relation to parental alienation but this had not been considered by the trial judge (para. 95).
Thirdly, the court highlighted the difference between on the one hand the long-term nature of the harm arising from Universal Medicine and from parental alienation, and on the other hand the short-to-medium term harm that would be caused by a change in the child’s living arrangements (para. 96). While the order sought by the father was a significant change and would be challenging in the short term, unless such decisive counter-measures were taken, the influence of the belief system and the alienation of the child from her father were likely to become entrenched as time passed. By dismissing the father’s application, the trial judge gave ‘inordinate weight’ to the disadvantages of a change of living arrangements ‘desired to address the deep-seated problems within the family’ (para. 97).
The appeal was allowed. However, the court decided to remit the matter for a further hearing before the President of the Family Division. The mother was given a final opportunity to disassociate herself from Universal Medicine and reverse the process of alienation of the child from her father (para. 103). The court warned that without a wholesale transformation in the mother’s position, the court at the further hearing is likely to find it necessary to transfer the child’s care to her father.
Comment
The judgment provides a useful analysis of the law relating to a situation in which a conflict arises between an individual’s right to religious freedom and a child’s welfare. Although a parent’s views as to their child’s upbringing is important and must be regarded by the court as such, the court must ensure that the welfare of the child is at the forefront of any decision regarding their care.
The importance of timing in cases of parental alienation was firmly recognised; the more distant the relationship with the unfavoured parent, the more limited the court’s powers become. The obligation is on the court to be alert to early signs of alienation and to respond with ‘exceptional diligence’ taking whatever effective measures are available.
As to the appropriate remedy in cases of alienation, the court held that this will be a matter of judgement. There is a ‘spectrum of severity’ and the remedy will depend on an assessment of the child’s welfare. The court notes that while a change in the child’s main residence is a highly significant change to a child, such a change should not be considered a ‘last resort’, particularly where the short-term effects are outweighed by the long-term harm of exposure to a socially harmful cult.
Pupil Barrister
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