Reflections on the 5th Westminster Dialogue by John Hind

A powerful and diverse panel of family experts and audience met for the 5th Westminster Dialogue conference organised by Rebecca Giraud and Bob Greig from Only Mums & Only Dads CIC and sponsored by Dr Sarah Wollaston, MP

The panel, chaired by Joanne Edwards, Head of Family at Forster’s included Sir James Munby, President of the Family Division, Norman Hartnell, Managing Director of the Family Law Company, Tina Miller, Professor of Sociology, Oxford Brookes University, Sarah Parsons, Assistant Director, Cafcass, Elizabeth Coe, Chief Executive Officer NACCC and Dr Damien McCann, Head of Development and Learning, Tavistock Relationships.

The key questions they had gathered together to consider were these:

  • does the unjustified withholding of contact of a child to the other parent amount to harm to the child which should fall within a wider definition of harm in statute/practice directions
  • do the delays inherent in the current litigation processes cause or add to the problems and, what can be changed to make them more responsive to the needs of the children
  • whether the availability of Cafcass to conduct risk assessments could be expanded beyond court proceedings to assist in ADR processes.

The panel offered some fascinating professional perspectives and insights in addressing these and other questions posed by a diverse audience which included, family lawyers, mediators, therapists, charities, politicians, to name a few.

Bob Greig from Only Mums & Only Dads began discussions by asking whether it is generally understood and accepted that an unjustifiable denial of contact to the other parent amounts to ‘harm’ to a child and whether it might be possible for the legal systems and processes to act far more quickly in responding appropriately to an unjustifiable denial of the child by one parent.

Tina Miller gave us the sociologists perspective, explaining how the expectation of what it is to be a ‘good parent’ from the perspectives of society, parents and children, has changed over the decades recognising that the one thing that has not changed is that ‘good enough parenting’ is about doing the best job parents can, with the resources they have. Today, this might be reflected for example in the fact that many more fathers want to be and are more actively involved and making a positive difference in their children’s lives.

Listening to Tina Miller and subsequently, Dr Damien McCann talk about the importance of co-parenting, the notion of shared responsibility, and creating and sustaining healthy parent alliances, all made great sense.

Dr McCann reminded us all how important it is for separated parents to feel supported at every level, stressing that frequent, intense unresolved conflict between parents puts children’s health and welfare at significant risk of harm often resulting in an internally sad and externally angry child, growing up with low self-esteem issues.

A parent who teaches a child to fear or alienate from the other parent is, very clearly, in Dr McCann’s view, harming the child. If parents are not adequately supported or, indeed, prevented from working together, the children will be left to ‘fill in the gap’, causing all sorts of developmental issues.

Norman Hartnell, family solicitor, mediator and Director of the Family Law Company, adding to his former written response to the questions posed by Only Mums&Only Dads, emphasised that in his experience, there is a frequent harm to children not recognised, a harm caused by an ‘unjustifiable denial of contact’. He went on to ask; ‘is it harmful when contact for a child with one parent and their family is stopped unjustifiably by the other parent (often denying them contact with ‘half their family’) and, if so, what can we (the professionals and the legal system) all do about it? As an example, he pointed out that there is no mention in Practice Directions of a cessation of contact requiring the court to intervene, asking why this could not be quickly remedied.

The Assistant Director of Cafcass, Sarah Parsons told us about a project she and her colleagues are working on to produce a guidance (due out next Spring) about how to work with alienating behaviour. She also talked about the Cafcass ‘positive parenting program’. Sarah was asked whether she could see Cafcass working more directly with mediators in and outside court, referring people to mediation where CAFCASS has established that there are no safeguarding issues, promoting a more integrated and interdisciplinary approach.

Elizabeth Coe, the Chief Executive of the National Association of Child Contact Centres talked about the grief and pain experienced by children following the perceived loss of ‘half their family’ when contact is denied with one of their parents, and the possibility of having a presumptive approach to re-instating supervised contact at the child contact centre in the kind of cases being discussed by the panel, where contact with a child is being denied to one parent by the other. Elizabeth described hers and her staff’s first-hand experience of many years of having to help, support and manage angry parents and the need of many parents for targeted therapeutic support.

The opportunity for closing remarks was given to Sir James Munby who began by describing how disappointed he was by the lack of progress in making the necessary changes to legislation required to avoid the kind of delays in the legal process currently experienced by many parents, and extending the definition of harm, to cover denial of contact.

Having said this, he wondered about the extent to which legislation is in fact needed to achieve what was being discussed. He referred us all to his case of Re C 2012 where he described, in his judgement, the importance of a meaningful relationship between both parents and how refusal of contact for no good reason is harmful.

One solution, not requiring legislation, proposed by Sir James Munby was the kind of approach already taken in some care proceedings in which there exists a ‘kind of partnership’ between the judge and the therapeutic team, with Cafcass at the centre.

I and my colleagues at Compass Resolution mediation, coaching and training, have always supported an integrated and inter-disciplinary professional approach to problem solving, involving the right professional at the most appropriate time in the process, in the most efficient and cost-effective way built around an agreed central purpose such as helping and supporting separated parents to work together, building their parenting alliance, in the best interests of their children.

Where there is an ‘unjustifiable denial of contact’ causing ‘harm’ to a child is established, the following approach was discussed;

  • A safeguarding report from CAFCASS recommending specific therapeutic support and establishing that there are no safeguarding issues.
  • An interim contact order, possibly supervised at a Contact Centre, to get things back on track and giving the separated couple something to work on and develop.
  • A Direction to attend a mediation information and assessment meeting and, possibly mediation (although the latter is more contentious since mediation is a voluntary process) where the separated parents will be helped and supported by a family mediator to build their ‘parenting alliance’ and develop the contact arrangements
  • A Direction for further specific therapeutic support and reports, as recommended by CAFCASS

This arrangement could then be monitored by the judge at intervals, ensuring that both parents feel responsible and accountable to their children, each other and ultimately court.

Before the onslaught of questions from the audience, Sir James Munby concluded with some very sound advice; don’t wait for statutory instruments to make the necessary changes to support parents and protect children.

The afternoon ended with an energy in the room, a positive energy from family professionals attending because they wanted to make a difference, family professionals from around the country who are already making a difference and forming collaborative partnerships to support separated parents to take responsibility and be accountable for the health and wellbeing of their children. I am sure that following the OnlyMums & OnlyDads 5th Westminster Dialogue many more partnerships will be formed in the near future.


John Hind, Director, Compass Resolution


Solicitor, Mediator, Coach, Trainer


Sarah Parsons, Principal Social Worker, Cafcass



It’s vital we move away from the highly polarised debate that has predominated to date and achieve a more nuanced and sophisticated understanding of each child’s experience.

As with domestic abuse, parental alienation should be seen as being on a continuum or a spectrum. It can be mild, moderate, or severe.

The impact on the child is the key issue and this will vary according to the resilience and vulnerability of each child.

Pure cases where the child’s rejection of the absent parent is caused solely by the behaviour of the favoured parent are relatively rare, although they do exist. It’s more common for the causal factors to be mixed or ‘hybrid’. This means the behaviour of both parents may be contributing to the dynamic to a greater or lesser degree.

Children themselves can be naturally aligned or have greater affinity for one parent.

We must be extremely careful not to categorise a situation as parental alienation when domestic abuse is the cause of justified rejection.

Coercively controlling parents can frighten children into rejecting the other parent.

Alienating behaviours can be perpetrated by men and women.

Cafcass is developing a High Conflict Practice Pathway to aid assessment in all high conflict cases, which may or may not include alienation. Feedback is being sought from interested parties over the next three months.

Cafcass is also piloting a structured intervention suitable for certain cases where parents are stuck in conflict.

Sarah Parsons, Principal Social Worker, Cafcass


Mind The Gap. The Impact of Parental Alienation on Children by Dr Damian McCann

Dr Damian McCann’s presentation at Westminster November 13, 2017. Damian is the Head of Learning & Development; Couple Psychoanalytic Psychotherapist and Clinical Lecturer at Tavistock Relationships.


In my presentation I will concentrate on the needs of the children and the impact on them of parental discord and parental alienation.

Firstly the really good news

The quality of our couple relationships profoundly affects how we feel about ourselves and, the quality of these relationships has material and measurable consequences for our lives and those around us, affecting the emotional, cognitive and physical development of our children. The Early Intervention Foundation places particular emphasis on how parents communicate and how they relate to each other as being key factors in good outcomes. Essentially, children desire a strong and healthy relationship with both parents.

Some other good news…

The majority of couples and parents do indeed have good quality relationships, managing moments or indeed periods of dissent and conflict without recourse to abuse, violence or the need to separate.

The bad news, however, is that…

As we know, a number of couples, struggle to manage or contain their conflict within what could be considered reasonable limits with profound consequences for both themselves and their children.  Research shows that parents and couples who engage in frequent, intense and poorly resolved inter-parental conflict put their children’s mental health and wellbeing at risk. It is of note that exposure to discordant but non-violent conflict (emotional standoffs, cold and prolonged silences, etc.) also has a powerfully negative effect on children’s development.

A further bit of bad news is that…

Research also shows that children of all ages are affected by destructive inter-parental conflict within the home.

Children and young people are also negatively affected by unresolved conflict between parents post separation – as indeed my clinical work with such family’s shows.

Children exposed to severe and/or ongoing inter-parental conflict exhibit a broad set of negative externalizing behavioral issues – such as aggression, hostility, non-compliant and disruptive behaviors, verbal and physical violence, antisocial behaviors, etc. and internalizing behaviors such as withdrawal, inhibition, fearfulness and sadness, shyness, loss of self-esteem, anxiety, depression and suicidality in the extreme.

Yet, if we compare these with the effects of parental alienation on children’s emotional and behavioral outcomes, we discover the reappearance of low self-esteem, but we now add the concepts of hatred of self and others, as well as capacity to trust issues, together with feelings of guilt and confusion or, to put it another way, feelings of alienation. In some instances, the child may believe that the alienated parent does not love them and may also experience feelings of betrayal towards the resident parent through a longing to maintain contact with the alienated parent. Ultimately, parental alienation for the child represents a persistent un-mourned loss.

A key finding in Gordon Harold’s work (1) is the attribution of meaning the child or young person attaches to the loss – in other words, how children read their parent’s difficulties in relation to themselves. In the same way that a child who has argued with a parent or sibling before they disappear or die often finds themselves wondering whether it is their fault. In that regard, children might feel responsible for what has happened, especially if a part of the parental difficulty centered on the child or young person’s behavior beforehand.

Now to the really bad news… 

Some parents and couples are simply unable to work through their difficulties either within their relationship or even within the court system – giving rise to the concept of Parental Alienation. Kruk (2) who has investigated this concept – believes that apart from the profound consequences of two parents being prevented from working together, the children are then left to fill in the gaps.

As a consequence, these children are required to take sides – involving an imagined or actual hate of the targeted parent, or in more extreme cases a symbolic killing off of the alienated parent who is demonized and seen as dangerous, manipulative and worse. One man, who I saw for a two sessions, had been using the court for a number of years to get the mother of his children to agree contact, he stopped therapy because he quickly realized that I could not resolve the issue and he was not interested in exploring his struggle. However with others I have worked with and who managed to actually meet their children, the situation was so fraught and traumatic that it only served to reinforce the alienation.

In psychoanalytic parlance, parental alienation would be viewed as an extreme form of splitting, where love and hate, good and bad, hope and despair are kept apart rather than being brought together in the service of a resolution. However, in situations of parental alienation attempts to engage the resident parent, more often than not results in a tightening of the defenses. Indeed, parental alienation is viewed as a sign of a parent’s inability to separate from the couple conflict – whilst at the same time preventing any possibility of addressing that conflict – an impasse that we are trying both to understand and manage today.

Strategies that are often employed to keep the targeted parent alienated – include badmouthing, denying contact and systematically attempting to remove the existence of the alienated parent from the child or young person’s mind – held in place by beliefs that the targeted parent is dangerous or manipulative – a projection if ever there was one.

Indeed, Kruk (2011) found that most of the targeted parents had lost contact involuntarily. Even more worrying is a finding in a study by Barker (2010), which shows that half of the respondents (now adults) who had experienced alienation as children find themselves alienated from their own children.

Given the obvious damage that parental alienation causes to children, one might wonder what can be done to limit the fertile ground for such hatred to breed. Kruk (2011) reminds us that hatred is not an emotion that comes naturally to a child – it has to be taught. And, he goes on to say that a parent who teaches a child to hate or fear the other parent represents a grave and persistent danger to the mental health and emotional health of that child.

This, however, is not to deny that in particular circumstances, such as domestic violence or, where the behavior of an alienated parent is designed to harm their partner, should not be taken into consideration when considering the alienated parent’s contact with their children, although failure to think about and explore the situation from both parent’s point of view, frustrates efforts to resolve a serious and damaging situation for all concerned. And, of course, these situations are incredibly complex – as this case example testifies. In fact this is the little three years old girl I spoke of at the last Westminster Dialogue. Well, one year on, I still continue to see her and her mother following a serious domestically violent attack on her mother by her father. However, I have now met with the father and was completely left fielded by his rational and selfless explanation of what had happened on the night mother and daughter fled domestic violence. Thinking further with the child about what she remembers (in the presence of her mother) leads to a dance involving uncertainty, confusion, and an eventual declaration that she thinks that she can remember her father hitting her mother but she then adds that she isn’t sure. This coupled with the mothers recent brain surgery involving memory difficulties renders us all wondering where the truth actually resides. Luckily, in this case, both parents are agreeing to the divorce and mother is willing to negotiate, with the court’s assistance, to the father’s contact with his daughter, although the daughter is somewhat confused about her wish or not to see the father.

By way of ending this presentation I wanted to inform the audience of a therapeutic intervention delivered by Tavistock Relationships in 2014/15 (in partnership with CAFCASS and funded by the DWP) designed to help and support separated families.

The aims of the Parents in Dispute treatment intervention were to:

  • Reduce conflict and improve the parenting alliance
  • Increase parental sensitivity to their children’s needs
  • To improve the mental health and wellbeing of parents in entrenched conflict
  • To divert parents from using the court system to resolve their disputes.

Parents were offered an initial consultation in which each parent, was seen separately by an individual therapist after which, the two therapists would join forces to work with the parental couple assuming they were deemed appropriate to undertake the joint MBT-PT intervention consisting of 6-12 sessions. For those who were unwilling or who were not considered appropriate for the joint intervention, these individuals would be offered up to 6 sessions of therapy on their own.

Although this was a difficult to reach population, not only were the therapists successful in engaging both co-parents in attending sessions together, but they found that for those who were able to attend together, there was a significant improvement in their capacity to co-parent effectively as measured by the Parenting Alliance Measure. On the other hand, those who were unable to attend together showed little change in regard to the strength of their co-parenting alliance, suggesting that if we are unable to reach the two parents in some way then the conditions leading to alienation continue.

Indeed, parents who are unable to agree the arrangements for their children and repeatedly return to court are a much more difficult to engage in joint therapeutic work and seem unable to enter into a help-seeking state of mind. Initiatives must target this resistance but bringing the two alienated parties to the table to think about the needs of their children may need a multilevel intervention, involving the legal process, health and social care and specialist therapeutic intervention, such as the PID project that I spoke about earlier.


(1). Baker, A. (2010). “Adult recall of parental alienation in a community sample: Prevalence and associations with psychological maltreatment.” Journal of Divorce and Remarriage, 51, 16-35.

(2). Kruk, E. (2011). Divorced Fathers:  Children’s Needs and Parental Responsibilities,  Halifax:  Fernwood Publishing.

Talk by Elizabeth Coe (NACCC CEO) at the Westminster Dialogue

According to the Centre for Social Justice (Fractured Families 2013 research) c1 million children a year lose contact with the parent they do not live with.  This research was done before the reduction in legal aid for family proceedings so this number may well have increased.  The loss of the other parent is damaging for children and it is well documented in research that it can lead to-:

-lower educational achievements,

-more behaviour concerns,

-poorer psychological adjustments,

-lower self esteem,

-poorer social competence

Some of these parents walk away for a variety of reasons, they may be unable to afford the fight in court, they may have no will to fight, they may have been fighting for a long time and not be able to cope with that anymore.  For children they are experiencing a great loss, and not only the parent.  There are grandparents, aunts and uncles, cousins, people they spent time with on holiday and at parties.  They may have to change school, move from their home and have reduced finances.

So the argument for good contact that will minimise these losses is important providing it is safe.

As a practitioner in family proceedings, I met very few people who I call the “over my dead body will that person have contact”, although there were a few.  Most of those I met were devastated by the experience, felt betrayed, lost self esteem, and were going through the loss cycle which is a process which starts with shock, on to denial, anger, depression and will finally become acceptance.  Some people will yo yo back and forth between anger and depression and can sometimes take a long time to get to acceptance, and this may require some therauputic input.  This takes time.

Delay in sorting this can be considerable, meanwhile the child is not having the contact with the non resident parent. If there was a way for the court upon application to have both parents in and direct them to a mediation session with the prime focus being getting contact started, this may solve one problem.  If there are any concerns or the parents do not want to communicate with each other, contact could take place at a contact centre either supported (no risk) or a supervised centre (allegations of risk).  The parent who feels aggrieved could then have an opportunity to get some help, and hopefully both parents would soon be able to go to mediation to consider long term arrangements.

Of course it is not necessary to go to the court to get contact.  Parents can apply directly to both mediation and contact centres the latter through the NACCC website, and this way would certainly reduce delay.

Elizabeth Coe, CEO National Association of Child Contact Centres

A post-event note from Bob & Rebecca

Norman Hartnell, Rebecca Giraud, Dr Damian McCann, Bob Greig, Sir James Munby, Elizabeth Coe, Sarah Parsons, Professor Tina Miller, Jo Edwards

Two hours was never going to be long enough. Despite the most efficient Chairing by Jo Edwards and with all the speakers keeping to their allotted times, the questions from the floor kept coming. Apologies to all those who were left with their points and questions unanswered.

We will be adding notes etc from the individual speakers and will keep the “comment” section open if you would like to offer us your reflections / questions. This method brings the ability to reach a much wider audience.

This “dialogue” concluded with the Chair asking all present for a show of hands in response to the following two questions:

Should we look to broaden the definition of “harm” in PD12J to include an unjustified withholding of contact to a NRP?

Should we aim to revise the court process in relation to ALL situations where “harm” is alleged to allow for a triage type hearing before a District Judge with a Cafcass officer present within 7 days of the application being filed?

Both questions were met with the vast majority present voting “yes”. There were no abstentions and a small handful of guests voted “no”. Rebecca and I counted three, maybe four.

Given the breadth of disciplines among the guests – mediators, social workers, representatives from grassroots organisations, solicitors and barristers, academics…this result is noteworthy. It isn’t just the numbers but the passion that lay behind the speeches and the questions that leads us to want to continue this debate.

In response to discussions after the event we are looking to hold a follow-up event in Spring 2018 where we can explore these two questions in greater depth. We will be posting up further details in due course so do keep on eye out for further information. Such an event will afford us the opportunity to offer a platform to those who voted against too. When the welfare of children and young people is at stake, it’s vital to listen and share all viewpoints.

Finally – those who were able to attend this event will have their own specific “moments” or memories of things said, responses made…

…we have two.

Elizabeth Coe, CEO of NACCC reminding the room that we have c1 million children totally estranged from one of their parents post-divorce/separation. For us, it was one of those “we can (must) all do better than this” moments.

The second came as the audience voted by raising their hands. There was a quiet but still audible “oooh” that went round the room as people looked round to see the results for themselves.

Thank you to all those who were able to come on the day. And please, if you want to add your thoughts the comments section is open to all.

If you would like to receive updates by e-mail please drop Rebecca a line.

Introduction to Westminster Dialogue 2017

Family Law on Trial – a case of the system’s failure to protect children from harm?

By Rebecca Giraud and Bob Greig

OnlyMums & OnlyDads is an on-line organisation that works with parents going through divorce and separation.

Parents often don’t know where to go for help when it comes to working things out with the ex.  We all know that there is a wealth of half-baked information on the internet being provided by so called ‘experts’.  We offer something different.

Our organisation offers parents access to the best professional guidance available through our Panel of 120 Resolution-member solicitors and mediators. This gives parents the opportunity to seek some initial, objective, and professional guidance on their options for taking matters forward in a way that keeps the best interests of their children at the forefront of their decision making.

We are not lawyers, or social workers. We have never worked in a court or in the civil service. We have, however, spent 10 years listening to parents – mums and dads – and the difficulties they are facing.

There is one issue that comes up daily and that is the ‘delays in the system’.  It is our contention that these delays can drive already warring parents further apart and more importantly place children at risk of harm.

The “denial of contact” resulting from the delays in the system is pernicious. The detrimental impact on the non-resident parent will be known to those in this room. The negative impacts on the children being denied contact with one of their parents may be less well documented. 

What we hear is that if a resident parent decides they simply don’t want the other parent to see the children, without there being any safety issues, it will take the non-resident parent 4, 5, maybe 6 months to get a court order enabling them to see their children again, if by that stage it is not already too late. In too many cases, this pattern of – contact stopped, mediation, followed by court hearings, contact re-established only to be broken again a few months down the line – can be repeated year after year and results in whole childhoods blighted by irregular ad-hoc stressful contact with a loving parent.

Our question today is this. Where there is no “evidence” of the non resident parent being a risk to their child, why can’t the courts – “the system” – order the re-establishment of contact within a matter of days?

Equally, where a relationship breaks up and one of the parents gets involved with a violent partner, in what way can the system be changed to recognise and deal with that risk? In this situation the court needs to respond quickly to protect the child.  As we heard last year from Polly Neate, the then CEO of Women’s Aid, too many children experience domestic violence in the UK. As a parents’ organisation we simply don’t understand why, when one parent sounds the alarm bell, it takes the system months or even years– or a violent incident – before facts are established and action taken.

An analogy

Should you leave this event and trip over outside and hurt your arm you would end up at a doctors. They deliver a triage system to assess what needs doing, They would undertake an initial assessment and if a break was suspected you would be directed to a casualty department. There (within hours) you would be examined by a specialist. There would be investigations. Medical history, X-rays, possibly a scan. Bespoke treatment would be offered. Within a day you would be sorted.

I know the comparison doesn’t fit neatly- but let’s say you leave this room to go and pick up your children only to receive a text saying you are not going to see them this week and indeed not until further notice.

You might turn up at a family court with legitimate concerns about your child’s welfare and there will be immediate confusion as to who you would need to talk to. You may be offered booklets and a form or two. Weeks later you would find yourself attending a MIAM. If that doesn’t work you will find yourself back at the Court picking up a C100 form to fill in. That’s 20 pages to fill out and a six page checklist.

Once completed you will need to photocopy it three times and pay over £200 to again wait weeks for a court appointment…need I go on.


We are NOT calling for radical change. Rather we are asking for the 1989 Children Act to be fully implemented to do what it sought to achieve. To do this we need to zoom in on how to keep the welfare of the child paramount.

We have two questions which look at process rather than the wording of the legislation per se:

  1. Can we improve the court’s initial risk assessment and preliminary hearing systems – there are many anecdotal case studies that suggest they are not robust enough or quick enough, and
  2. Are the courts consistent in their appreciation of what “harms” children?

We took these questions to our Chair, Norman Hartnell, MD of The Family Law Co and Chairman of our Steering Group.

Westminster Dialogue Norman Hartnell Response

Family Law on Trial

  1. The question for consideration

1a Is the present law and process fit for purpose?

  • Does it provide protection for children and vulnerable adults in all cases where it is needed, or is it framed in response to gender based pressure groups emphasizing one form of harm over another as if they are mutually exclusive?
  • Is it able to respond with sufficiently speed to address the issues before the delay inherent in the present system itself creates new problems?

1b) Let’s be clear, the tightening up of PD12J to heighten the judiciary’s awareness of the impact on those affected by domestic abuse is very welcome; further change, when a change in legislation allows, to prevent an alleged perpetrator of domestic abuse perpetuating the harm by personally cross examining the victim is also overdue.

1c) However I suggest that even the revamped PD12J does not sufficiently recognize or prevent “harm” to children where harm exists in cases other than domestic violence. In particular it does not adequately deal with those cases in which all contact is denied unjustifiably, or indeed other circumstances in which too narrow a view of what amounts to “harm” may prevent effective intervention where needed.

1d) The law has of course been changed to recognise that the continuing involvement of both parents in the life of a child is deemed beneficial unless unsafe, but that must mean that it’s corollary – namely behaviour which prevents that – ought to be deprecated and addressed. It ought therefore to follow that an unjustified withholding of contact thus denying such continuing involvement is by definition “harmful”.

1e) The recent debate has focussed on arguing for the existence and recognition of this by the term “parental alienation” as another form of harm which should be recognised. That label has historically been met with reluctance on the part of the judiciary to give encouragement to those making such allegations in such terms, perhaps because of the very emotive nature of the label and inherent suggestion of conscious malicious motivation rather than a description of the behaviour itself.  Has that focus on the suggestion of proving malicious intent itself delayed an objective recognition of the behaviour?

1f) Perhaps even the title to the PD12J “Domestic Violence and Harm” suggests that there is only one form of behaviour (domestic abuse) which causes the latter effect (harm). If so that may be the key to understand how titles / definitions themselves may limit our thinking.

1g) As Bob has alluded to however, there are many examples of cases where the current law and processes do not recognise potential harm or meet the needs of those involved, so from now on reference will be to the Residential Parent (RP) and Non-Residential Parents (NRP) to avoid any further polarisation in this argument on gender lines. It is not the gender of the relevant parent which matters, it IS their behaviour, so for example

  • when a NRP is denied contact unjustifiably for example where the RP wishes to have a separate/new life/nothing to do with the NRP;
  • where an RP’s grievance against the NRP arising from the ending of their relationship which has no or marginal relevance to parenting issues results in the RP exercising the power they have by reason of being the RP to “punish” the NRP by the withholding of contact
  • where the RP forms a relationship with a new partner who the NRP believes presents a risk to the child – there is currently no means of having this urgently checked out save for a referral to Social Services, there is no mechanism for intervention in private law proceedings.

There may well be other examples of situations in which behaviour which causes “harm” does not fall within the current ambit of PD12J, which in its very title suggests that “harm” is connected to cases of domestic abuse. There are also gaps in the system, so for example, where any form of risk is alleged in mediation which necessitates a curtailment to mediation; at present there is no mechanism for any referral to any form of risk assessment through Cafcass or elsewhere save through a court process, thus rendering the mediation process redundant in many cases and forcing parents into the court arena

  1. The key issues

To my mind, the key issues arising from this can be summarised by asking the following questions:

1). Whether the unjustified withholding of contact of the child to the other parent amounts to harm to the child which should fall within a wider definition of “harm” in statute/practice directions. Should the heading to PD12J be amended to refer to “Cases involving an allegation of harm to a child or other adult” We know that such definitions can be changed, witness the recent change to the PD12J and the previous change to incorporate recognition of a child witnessing domestic abuse as harmful in itself.

2). Whether the delays inherent in the current litigation processes cause or add to rather than detract from the problems by reference to  the numerous stages of a Court process and what can be changed to make them more responsive to the needs of children.

3). Whether there is sufficient training in place for the judiciary who are dealing with these issues on a day to day basis, and an accepted body of clear messages from research

4). Whether the adversarial approach is the most constructive way of identifying and addressing such issues? The fear of an alleged perpetrator as to how admissions may be used to deny all contact can prevent any admissions at an early stage,  resulting in a wholesale denial of responsibility which if addressed at the outset may not grow into an intractable dispute. Can the court approach be changed to encourage an acceptance of responsibility? What resources are available to help those who demonstrate a commitment to change, which is often the best outcome for the child?

5). Whether the availability of CAFCASS to conduct risk assessments could be expanded beyond court proceedings to assist in ADR processes

  1. My suggestions of what can be done for further comment

1.) The broadening of the definition of “harm” in PD12J to include an unjustified withholding of contact to a NRP which will bring such within the following suggested revisions.

2.) The revision of the court process in relation to ALL situations where “harm” is alleged to allow for a triage type hearing before a District Judge with Cafcass officer present within 7 days of the application being filed. If delay is at the root of some of the problems then the answer to those must be early intervention.

3.) For there to be a “normal” default position in which recognition is given to maintaining any pre-existing relationship between the child and the parent in as close as possible terms to that which the child had experienced but for the cessation of contact, by the making at the first hearing of immediate presumptive Orders for contact unless a limitation or the contrary is proved necessary.

4.) At that first hearing for the court to make such orders for the protection of children and vulnerable adults as are required to address any risk identified. Including for example the continuation of contact by supervision.

5.) For a follow up hearing to be set to take place within 4 weeks to review the operation of the order made on the first occasion possibly with a brief report from Cafcass to enable the Court to regulate the future direction of the case to ensure that the process as set in train by the Court is being followed and to ensure accountability on both parties sides and a recommendation of any change required.  In answer to the inevitable “resources” issue, the response is that if intractable cases can diminish by early intervention then the long term benefit of a reduction in the more time consuming cases will more than pay for itself.

6.) The avoidance of the need to attend a MIAM would follow from 1.

7.) The establishment of an effective country-wide protocol with the police and social services to enable the Court to obtain urgent safeguarding information direct and within the 7 days before the first hearing rather having to wait 8 weeks for a Cafcass enquiry.

8.) The devolved non-means tested granting of Legal Aid to both parents for all cases involving an allegation involving of harm or meeting such an allegation (as it is currently available in all care proceedings where “significant harm” is alleged).

9.) The withdrawal of Court fees involving an application where allegations of harm are made. This will recognise as a public policy matter the state’s responsibility towards children.

10.) A change in the role adopted by Cafcass to (1) enable risk assessments to be undertaken when a referral from a recognised mediator is made; and (2) more of a “hands on” role to facilitate contact happening after the triage appointment depending on their advice as to whether it can be safely conducted on a supervised or other basis, in turn depending on the nature of the allegations and setting at the very outset of the case (before children’s “expressed” wishes and feelings become crystallized)  a method of maintaining the relationship with their NRP to avoid parental alienation.

11.) The court / Cafcass to maintain and operate a database of all facilities available for the Court for supervised or other contact by either the NACCC, Cafcass or accredited third parties.

Norman Hartnell

The Family Law Company by Hartnell Chanot

Chair of the Steering Committee of the Only Mums / Only Dads Family Law Panel