Some law professors and mental health professionals assert that removing an alienated child from the custody of a parent with whom the child claims to feel aligned—and placing the child in the custody of a parent whom the child claims to hate or fear—is a draconian move that surely will traumatize the child. Judges have referred to this remedy as “a last resort.”
In contrast, those who acknowledge the harm to victims of divorce poison regard such a move as a reasonable option to protect children from further exposure to toxic parenting and the damage it causes. In this view, removing a child from an environment that will not stop twisting the child’s heart and mind against the other parent is not a last resort. It is a priority.
Enter Lord Justice McCombe, Lady Justice King, and Lord Justice Peter Jackson. [I wrote about Justice Jackson’s wisdom and sensitivity in a 2017 Facebook post.] In a recent UK Court of Appeal decision (Re S) these judges, citing an earlier decision in the High Court of Justice, drew a distinction between a highly significant change and a last resort: “We agree that whilst a change in the child’s main home is a highly significant alteration in that child’s circumstances, such a change is not regarded as ‘a last resort.’ The judge must consider all the circumstances and choose the best welfare solution.” You can read the decision here.
There is a lot these judges got right. I will discuss just a few highlights in their well-reasoned decision.
The judges criticized the lower court for not addressing the mother’s innuendos of sexual impropriety on the part of the father. The mother expressed concerned about the risk of sexual abuse because, at the request of their 3-year-old daughter, the father would lay alongside the child to help her get to sleep.
Referring to the mother, the Justices wrote, “She had been bringing the matter up on and off since May 2015. It is particularly striking that she should promote suspicions about the father, despite the lack of any evidence, when she is at the same time impervious to proven allegations against Benhayon. This state of affairs was capable of providing support for the father’s case in relation to alienation, but it did not receive any attention in the judge’s overall evaluation.”
According to an Australian jury, Benhayon—who claims to be the reincarnation of Leonardo Da Vinci—is a cult leader who had an “indecent interest in young girls as young as ten whom he causes to stay at his house unaccompanied.” The mother in the UK case was a devout follower of Benhayon, imposing his recommended dietary restrictions on her young daughter and teaching the cult’s beliefs to her. One such belief is the importance of moving in a counter-clockwise direction. The father expressed concern that his daughter was preoccupied with complying with the counter-clockwise prescription, such as mixing pancake batter only in that direction.
A court-appointed social worker reported that the girl accused her dad of not being like her and her mom because he did not share their beliefs. The social worker concluded the girl was at risk of becoming alienated from her father and was at risk of being harmed if her mother maintained her commitment to the cult.
Another noteworthy element in the Court’s decision is its recognition of the importance of moving quickly when children are exposed to alienating behaviors. In a 2015 paper published in a law journal, I wrote: “What often occurs is that the children remain out of touch with their rejected parent as the litigation slogs through a quicksand of legal maneuvering and failed psychotherapeutic attempts to remedy the problem.”
The Court cited another case in which judicial delay contributed to the entrenchment of two children’s alienation from their mother. In that case, despite the mother’s plea for a swift decision, the lower court took a year and half to issue its decision. According to the European Court of Human Rights, the court’s delay “added to the overall period during which [the mother] did not have meaningful contacts with her two children, while [the father] continued to be able to alienate the children from her. This delay in deciding the case is contrary to the principle of exceptional diligence.”
Returning to the case at hand, the UK court opined, “In a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent’s right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgment, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken.”
Amen.