February – Case Law Update 2

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February - Case Law Update 2

February 12, 2024

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February - Case Law Update 1

February 9, 2024

This month’s case law update was prepared with the diligent collaboration of Ciara Pugh, Senior Associate and Pooja Patel, Solicitor from our Stowe Family Law London office.

K v Y [2023] EWFC 262 (B)

https://www.bailii.org/ew/cases/EWFC/OJ/2023/262.html

Complex Private Children Proceedings in which DJ Coupland considered the wishes and feelings of an older child & parental alienation.

Background

The parties began their relationship in 2000 and separated in 2013, they were in a same sex relationship. Both parties had parental responsibility, Y (Respondent Mother) as she was the child’s birth/biological mother and K (Applicant Mother) made an application following separation for a declaration of parental responsibility and for a Child Arrangements Order, which was made by consent in 2014. The child spent majority of the time with Y following the order, albeit of the lives with order for both K and Y.

In 2019/2020, there was conflict between the parties in respect of where the child should attend secondary school. K wanted to involve the child in this process, however, Y did not think this was appropriate due to the child’s age.

On 20 July 2021, without any warning, Y was served with a C100 application, seeking a change of the child’s school. K informed the child about this application and Y was extremely troubled by this and K’s behaviour that followed in the weeks following the ‘falling out’ between Y and the child in July 2021.  Communication between the parties at this point was almost non-existent and there was heightened acrimony between the parties.

K’s view was that the child should decide if and when she spends time with Y and that there should be no court order setting out contact. K emphasised this is what the child wanted.  K’s view was that without a court order setting out contact, she would not see the child as this was not encouraged by Y.

Y was of the view that K was alienating the child from Y and her extended family. This was examined at the final hearing and in particular during cross-examination, K throughout the majority of cross-examination, stated that it was the child not wanting to do something and it is the child who is deciding this not Y. Y also emphasised that Y will do what the child wants to do.

The delays with the court did not assist with the relationship between K and the child, the proceedings were ongoing for over two years.

The child turned 12 when the proceedings commenced and was aged 14 at the time of judgement.

 

Issues

i)                    which parent should the child live with, or whether she should continue to live with both parents;

ii)                  how much time the child should spend with each of her parents;

iii)                if the child lives with K, whether a child arrangements order should be made in respect of child’s time with Y;

iv)                where should the child go to school;

v)                  whether there should be a Prohibited Steps Order against K;

vi)                what should happen with the child’s passport.

4.                 Y alleges that K has alienated the child from Y and asks the Court to make findings in respect of this issue.

5.                  During the hearing, evidence was heard from the author of the s.7 report and the addendum report (SW), from K and from Y.

 

Decision

The Judge carefully considered the evidence of all the parties and the expert evidence before him. In the judgment, the Judge made clear the child’s welfare was his paramount consideration. The judge carefully went through the welfare checklist (paragraphs 111 – 131) and dealt with several matters that were relevant to his analysis in relation to the child’s welfare (paragraphs 99 – 109).

The issue of ‘parental alienation’ was raised and the difficulty in proving such allegations was highlighted in the judgement. In respect of this, the Judge stated that alienation is not something that can be diagnosed as set out in case law, but the actions of a parent should be considered in the context of each case. The focus should not be on the label, but the facts of the case. Notwithstanding this, the Judge was of the view that K could and should have done more to encourage the child to rebuild her relationship with Y post July 2021.

A joint lives with order was made. As the child since 2014, was familiar with a shared ‘lives with order’.

The Judge did not consider it to be in the child’s best interest or welfare to change school, due to the disruption this would cause having already commenced GCSE’s.

The Judge did not form the view that K was planning to remove the child from the jurisdiction and dismissed Y’s application for the PSO.

In relation to the child passport, as there is a shared ‘lives with’ it was ordered that the passport should be with the parent who last took the child on holiday until the other parent request this for a trip abroad, in which notice is to be provided.

The Judge emphasised the need for both parties needing to find a way to communicate without relying on solicitors. The importance of co-parenting and communication between the parties was noted and more importantly that the communication between the parties should not be driven or arranged by the child.

The Judge did not consider a Family Assistance Order would assist the parties and the child moving forward. The Judge considered this not to be in the child’s best interest or welfare nor did the Judge consider this to be proportionate.  The Judge explained that involving another professional for the child and more intrusion into her life would not be in her best interest.

This case emphasised the importance of both parties, K and Y, effectively co-parenting and being able to make difficult decisions for the child, providing for flexibility and potential adjustments.

The Judge agreed to write a ‘Dear Sam’ letter to the child explaining the outcome.  Re A : Letter to a Young Person [2017] EWFC 48.

Thank you to Ciara Pugh, Pooja Patel, and Maria Henty from Pump Court Chambers for their invaluable support in navigating the intricacies of this case.

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The blog team at Stowe is a group of writers based across our offices. They give an insight into the latest updates in family law. Along with pieces from our family law legal team, guest contributors also regularly share their knowledge. Sign up below for the monthly legal newsletter, which provides you with everything you need to know in one place.

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