In one consultant's view, overriding the wishes of a small child resolutely opposed to contact with a parent will in most cases result in bonds being forged
The practice of ascertaining the views of children caught up in intractable and volatile contact disputes may be of dubious value to courts seeking to establish what is in the best interests of the children concerned, and even harm the children whose interests are meant to be central to the court process. These are the headline conclusions of what is thought to be one of the first in-depth studies into intractable contact disputes and the concept of parental alienation carried out in the UK. While the study focused on England & Wales, the findings are pertinent to Scotland, where the views of children are routinely sought and often relied on in difficult contact cases.
Dr Kirk Weir, a consultant child psychiatrist with more than 30 years’ experience of reporting to the courts in such cases, has, in the last 10 years, taken a particular interest in children who are subject to high-conflict contact disputes in family courts in England. Having given evidence in hundreds of cases, his conclusions are that taking the views of children can often be counterproductive, and in many instances the best approach might simply be to order that contact takes place, even against the child’s perceived wishes.
Weir’s research shows that even in those circumstances, a child very quickly develops an affinity with the non-resident parent, against the expectations of both the resident parent and child.
Weir observed the striking difference between children whose parents are caught up in high-conflict contact disputes, and children he dealt with in care cases. In the latter, children tend to be beset by disadvantages and behavioural problems which set them apart from their peers. In private law cases, even teachers would scarcely know that the children were the subject of high-intensity disputes. He admits to being caught off guard initially by the intensity of “hatred and emotion”, and the extent to which otherwise balanced children were resistant to any form of contact with their absent parent.
This contrasted with children in care cases, who had been the victim of serious parental abuse, but who did not tend to react in that fashion. In fact, the main problem with care cases is that often the children retained a strong wish to be with a parent, despite the abuse inflicted on them. It was then that Weir stumbled on parental alienation syndrome.
Contact in practice
The study Weir conducted of contact-resistant children showed that young children enjoyed very high rates of successful reunion. Of children under the age of five, 100% were able to resume a successful relationship with the non-resident parent. Between the ages of five and seven, 80% of children did so. Over the age of eight, 40% of the children resumed a successful relationship at the first visit. Even in that group, the study showed that over a series of visits, very often the relationship could be resurrected.
Although it was usually denied during the assessment process, Weir concluded that it was the antipathy to the non-resident parent that was strongly expressed which determined these children’s views. Usually the wishes and feelings of the majority of children caught in conflict between separated parents changed once it was insisted that contact visits take place. Most cases he assessed involved at the outset non-resident parents being the subject of serious though unfounded allegations. In England, the system whereby a judge would first make findings of fact allowed Weir in his expert role to have greater scope to recommend contact in situations where these allegations proved to be unfounded.
Many parents told him that were it not for the wishes and feelings of the child, they would support contact, but without exception in this study these parents were extremely angry when contact was successful. Weir concludes that the official weight being given to establishing children’s views may in fact encourage a façade behind which a hostile parent can hide their opposition.
Onus on the court
Weir suggests that where parental alienation is present, the courts may have to take a more active role. This might involve having to find a remedy that allows the child to maintain a relationship with both parents against implacable hostility from the parent with residence and, indeed, the children concerned. It might include a change of residence for younger children in particular.
Weir’s research suggests the concept of parental alienation is now accepted in the UK courts. The writer’s own experience of advancing this theory at one court was quite different. In that situation, a four-year-old girl was apparently expressing extreme reluctance to have contact with her father. When the writer suggested this might be an example of parental alienation, and that the best approach for the court might be for contact simply to be ordered even in the face of her stated opposition, the sheriff suggested that was one of the most ridiculous arguments he had heard in 20 years on the bench. It can only be hoped that with Weir’s study now available, practitioners will have a more solid platform with which to argue what is a well-recognised concept. Children can easily be influenced by unscrupulous parents, and often the legal system, in seeking to determine their wishes and feelings, should be seeking to protect children who are put in the invidious position of having to make a choice of one parent over the other.
The research also emphasises that in ordering contact, the handover circumstances are crucial. The best approach indicates that the resident parent should be excluded to get over the sense of betrayal the child might have in actually enjoying contact with the non-resident, alienated parent. Weir suggests that any court reports which make recommendations without an attempt to observe the child during a lengthy direct contact visit make for an incomplete assessment.
Roger Mackenzie is a solicitor in the family law team at Maclay Murray & Spens LLP, Glasgow