This post is about a High Court case called Re MFS (Appeal: Transfer of Primary Care) [2019] EWHC 768 (Fam), a judgment delivered in March by Mr Justice Williams. We wrote this post some weeks ago, but the judgment was removed from BAILII before we published, so we waited to see if it was going to be amended. The case has been subject to media attention and is published on other databases, so we think we should comment. Checking today, it is back on BAILII (link above).

The term ‘parental alienation’ tends to be avoided by judges but there is the occasional published judgment where a parent has been found to have behaved in way intended to alienate the other parent and undermine that parent’s relationship with that child. We wrote about a case called Re D where such behaviour was found by the judge last year here. The term ‘alienating behaviour(s)’ is therefore preferred by some, although we’re not sure about the S. However, in Re MFS, a mother who was asking for permission  to appeal seems to have managed to alienate everybody involved. She was unsuccessful, so the matter is not going to appeal. The decision she was trying to get reversed was a transfer of residence of her eight year old son to his father. (This original judgment by HHJ North in Norwich Family Court is not on BAILII.)

The case was referred to on BBC Radio 4 Woman’s Hour on Friday 26 April as being one of ‘parental alienation’ although that term was not used in the judgment.

We highlight here some points of wider interest, including the mother’s claim that an expert witness had gone beyond his field of expertise and had taken it on himself to reach decisions that should have been left to the judge.

Although this is not an appeal in itself, the judgment of 94 paras is quite long, in setting out Mr Justice Williams’ reasons for concluding an appeal should not go ahead. MFS’ mother was represented by Frank Feehan QC (a ‘leading silk’); the father represented himself.

Grounds of the appeal

Things don’t start well because Mr Justice Williams hasn’t been told what the mother’s grounds are. The lawyer for the Cafcass guardian finds them for him:

i) ‘The decision of the court was made on the basis of a serious procedural irregularity in that the influential report of Dr Willemsen was prepared and presented to the court despite a number of breaches of guidance and proper procedure as to the preparation and presentation of such reports’.

ii) ‘In all the circumstances the decision of the court immediately to remove the child from his single primary carer was disproportionate and wrong.’

Expert witness reports

Dr Willemsen is a clinical psychologist who specialises in child and family psychology as well as adult psychology at the Tavistock Clinic and Great Ormond Street Hospital. Dr Blincow is a child psychiatrist who was instructed to report on MFS’s apparent ADHD/Tourettes (but concludes that he doesn’t have these conditions). Dr Blincow had, in his oral evidence, referred to research by Dr Kirk (who we think is Dr Kirk Weir) and the Cafcass guardian’s report uses phrases from ‘a paper by Kay Woodall’ (who we think is Karen Woodall).  All three reports recommended that MFS should move to live with his father, which is the order that HHJ North made.

Dr Willems’ report summary is set out by the judge as follows:

i)The father does not suffer from mental health problems

ii)The mother has persistently portrayed the father negatively, as violent, as mentally unwell, and denigrated him as the father. The child identified with the negative and hateful feelings expressed by the mother towards the father, which in turn made the child make allegations against the paternal family and project his father.

iii)This case, in my view, is a case in which the mother alienates the father as a result of her collusion with her son against the father. This constitutes emotional abuse.

iv)The mother persistently sees her own distress in others: she sees psychiatric problems in the child and his father, while considering that she herself functions well and has no psychological problems. I’m concerned that she is preoccupied with the need to set the father aside, driven by her anxiety that she might lose the child, or that the child might prefer his father over her.

v)I have made the point that the mother did not make the child adequately available for this assessment.

Delays in the application

HHJ North made the order on 28 September 2018 and MFS moved to live with this father that day. On 10 October, his mother instructed new solicitors but wanted a more senior barrister than the QC she’d had in the Family Court. She didn’t meet him until November, and was five weeks past the required deadline in putting in her application for permission to appeal. There were also administrative delays between November and March. Beciase the mother was ‘out of time’ she also had ask for an extension to the time limit alongside permission to appeal. The delay was identified as a serious problem by Mr Justice Williams: 

i) The failure to comply with the time limits for appealing is serious. It means that the child has completed the move to his father and has begun to settle into his new existence. That has now been for 6 months. Given the child had moved on the day the decision was taken the need for expedition was particularly acute. The consequences of the late appeal have had a direct impact on the child’s welfare in that it is now effectively not possible to recreate the previous arrangements without causing further upset to the child. In cases where a transfer of primary care is the outcome and an appeal is proposed the ideal would be is for an application for permission and a stay to be applied for prior to the implementation of the transfer; even if this means an urgent application to the appeal court.

ii) Whilst I appreciate that the mother wished to instruct another silk this did not mean either that an appeal could not have been lodged at an earlier stage, nor did it mean she had to wait for the availability of her first choice silk. This was a paradigm case for urgent action.

para 51

He went on to say he wouldn’t grant this extension but this didn’t matter much here because he was dismissing the whole application.

The criticism of the expert witness

Frank Feehan QC argued that Dr Willemsen:

1.Had strayed beyond his area of expertise

The judge disagreed:

I do not accept that any offering of an opinion by Dr Willemsen in his first report as to the child’s presentation was out with his expertise. He observed that there was no evidence of a OCD or Tourette’s disorder. His conclusion that the child’s allegations against the father and paternal family were caused by the negativity of the mother was a causal link that he was entitled to make on the basis of his assessment of the parents and the child. He was specifically asked to comment on the ability of the parents to support and promote the relationship with the other and if they cannot do so what is the impact upon the child. In order to answer this question Dr Willemsen was well within his remit in expressing the views he did.

para 63

2. Had resolved questions of disputed facts

Again Mr Justice Williams disagreed:

Whilst it is of course not for an expert to determine a core fact (i.e. whether the father had hit the child) this does not prevent an expert basing his assessment on the penumbra of facts* which accompany such cases. Thus Dr Willemsen was perfectly entitled to take into account all of the material which shed light upon the mother’s attitude to the child’s relationship with his father. Whether this was contained within Cafcass reports, the fathers or mothers written statements, his interviews with them, his direct experience of booking appointments with them videos he was shown, his observations of the mother and child, his observations of the child and the father these were all matters he was entitled to take into account. In the same way as a penumbra may surround a judgment so a penumbra will surround an experts report.

para 64

*i.e. surrounding information that doesn’t all get fitted in to the written judgment or report.

3. He had not taken into account all material facts

Here the mother was claiming that she had supported contact with the father but the judge was unable to find enough evidence of this to counteract the large volume of evidence the other way.

Another fact that the mother said Dr Willemsen had ignored was a letter from MFS’s school about contact being suspended between MFS and his father on the advice of the local authority. However, HHJ North had found that this situation had been created by the mother herself. MFS had told his school that his father was abusive (which HHJ North found to be untrue) so the local authority had, quite properly, advised the mother to suspend contact until there had been an investigation.

Overall, although Mr Justice Williams agreed with Mr Feehan that:

The expert must take account of primary evidence and not allow himself to pre-empt the findings of the court by reference to hypotheses based on matters outside his expertise or inaccurately summarised or assumed facts.

para 69

his conclusion was that Dr Willemsen had conducted himself properly.

A disproportionate removal?

The second ground of the proposed appeal was that in all the circumstances, (including an over reliance by everyone on Dr Willemsen) the removal of MSF to his father was a disproportionate response. However, Mr Justice Williams agreed with HHJ North and said:

The overwhelming weight of the evidence supported a change of primary carer. Even the mother’s own evidence supported this; both in terms of her position at the final hearing that contact should in fact be reduced and her continued negativity towards the father and inability to take on board the views of the experts or professionals.

Thus in terms of HHJ North’s decision insofar as it was a discretionary decision based on his evaluation of the evidence it was a decision well within the parameters within which reasonable disagreement is possible. Indeed on the evidence before him almost every judge would have reached the same conclusion. A decision to leave the child with his mother would have been a most unusual outcome on that evidence and would have called for a very clear explanation support. Thus the decision was not wrong from an appellate perspective. Rather it was right … it was either the only possible view or a view which I consider was right. The change of primary carer was plainly the decision that was in this child’s best interests and it was plainly a proportionate rather than a disproportionate order on the evidence. 

paras 92-93

The mother was permitted supervised contact so her relationship with MFS was not curtailed to the extent of no contact.

What can we learn from this case?

1. That where there is compelling evidence of alienating behaviour by a parent, amounting to emotional harm, there is no need to call on parental alienation theories.
2. Challenging an expert witness report is hard – see our guidance note on expert witnesses.
3. Although some delays occurring in a series might not be attributable to the applicant, initial delay in getting notice in can be fatal to the application.

Image: Gert Altmann, Pixabay.