We have all seen cases in which one parent seeks to alienate the child against the other parent. In such cases there are a range of options open to the court to deal with the issue, but perhaps the most serious, where the child lives with the ‘alienating’ parent, is to order the transfer of the primary care of the child to the other parent. This was what happened in the recent High Court case MFS (Appeal: Transfer of Primary Care), which related to a mother’s appeal against such an order, made by His Honour Judge North, in September last year.
The interesting part of this case is, I think, not so much the appeal, as the original decision. I shall therefore concentrate on that.
The case concerned a boy, ‘MFS’, who was born in 2010. Unless I’ve missed it, the judgment doesn’t say when his parents separated, but it was clearly not long after he was born. MFS remained with his mother, but as long ago as 2012 there were court proceedings regarding his contact with his father.
The central feature of the case was the mother’s negative attitude towards the father, and how she transmitted that to the child. Independent evidence for this came primarily from a clinical psychologist, whose findings included the following:
- That the father did not suffer from mental health problems, as the mother had suggested.
- That the mother had persistently portrayed the father negatively, as violent, as mentally unwell, and denigrated him as the father. MFS identified with these negative and hateful feelings expressed by the mother.
- That the mother had alienated the father as a result of her collusion with her son against the father. This constituted emotional abuse.
- That the mother persistently saw her own distress in others: she saw psychiatric problems in the child and his father, while considering that she herself functioned well, and had no psychological problems.
- Lastly, the clinical psychologist was concerned that the mother was 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.
These findings (and others) were accepted by Judge North, who concluded that the mother’s behaviour was causing MFS significant emotional harm. He considered the possibility of ‘threatening’ the mother with a change of residence to the father, but felt that that would not alter the mother’s behaviour. Accordingly, he made an order that MFS should immediately move to live with his father.
The mother appealed, arguing (using the words of Mr Justice Williams, who heard the appeal) that the clinical psychologist’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge, and that in all the circumstances the decision of the court immediately to remove the child from his single primary carer was disproportionate and wrong. Mr Justice Williams did not accept either argument: the report was not open to criticism, and the overwhelming weight of the evidence supported a change of primary carer. 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. Mr Justice Williams concluded:
“Having conducted what I consider to have been a very detailed review of the evidence before HHJ North and his judgment with the benefit of powerful written and oral advocacy in support of the parties’ cases I have reached the clear conclusion that the appeal is without merit. Whilst it was only possible to reach this clear view after that detailed consideration it is clear that neither of the grounds of appeal had any realistic prospect of success when road tested against the evidence that the judge had available to him.”
Accordingly, the appeal was dismissed.
You can read the full judgment here. Warning: with respect to Mr Justice Williams, the transcript of the judgment appears to have some errors in it, which can make it a little hard to follow in places.
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Author: John Bolch