Intractable hostility cases:
effective remedies or sticking
plaster?
6th World Congress of Family Law
and Children’s Rights
Sydney, 18 March 2013
Caroline Willbourne and
Rachel Chisholm
Barristers, London, UK
© Caroline Willbourne and Rachel Chisholm 2013
Agenda
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Definition
Approaches to intractable cases in England & Wales
Shared parenting
Effective case management
Use of experts
Child’s Guardian
Enforcement
Methods of last resort
Problems in the family justice system
Definition
• Dr Richard Gardner, US: ‘Parental Alienation Syndrome’, not
approved by the English courts.
• In UK, ‘intractable contact cases’ are those where one parent
(usually the mother) tries to prevent the child from having contact
with the other parent (the father) or in severe cases, any relationship
with the paternal side of the family.
• The UK definition, adopted by the English court adopting Drs Sturge
& Glaser in their work Contact and Domestic Violence:
“the alienation of the child from the non-resident parent in these
contact disputes can be the result of many different causational
factors and not just the resident parent’s deliberate & malicious
attempts to turn their child against the other parent”.
Approaches to intractable cases
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Early intervention;
Public education:
- ‘sorting out separation’ web app
- Parenting Information Programmes (‘PIPs’);
Mediation;
Parenting agreements.
Shared parenting
• The Government is to amend the Children Act 1989 (sec 1 (2A) to
provide for a presumption of shared parenting:
- “The court... as respects each parent within ss (6 )(a), to presume,
unless the contrary is shown, that involvement of that parent in the
life of the child concerned will further the child’s welfare”.
• 2 exceptions:
- (a) only if the parent can be involved in the child’s life in a way that
does not put the child at risk of suffering harm; and
- (b) the parent is to be treated as falling under (a) unless there is
evidence before the court to suggest that involvement in the child’s
life would put the child at risk of suffering harm, whatever the
involvement.
Effective case management
• Per Hedley J in Re E [2011], early identification of hostility or
difficulty is crucial in curtailing intractable disputes.
• Ask: is opposition to contact on part of mother deliberate or
malicious manipulation or unintended?
• If the latter, note opposition can arise from child absorbing mother’s
views about the risk of contact: therapy for mother?
• The judge gave case management guidelines:
- Courts should identify early on cases which have a ‘hallmark of
difficulty’;
- Parties to be able to give evidence early on, not against each
other, but focussing on the child’s welfare;
- Judicial continuity important.
Use of experts
• They are needed to identify the extent and depth of
animosity and to advise the court on how best to deal
with it.
• Can be psychiatrist, psychologist or a very experienced
guardian or social worker: in UK, will be Cafcass or
NYAS.
• Experts can be called on behalf of one or other parent or
(much better) on behalf of the child.
• In UK, mostly Single Joint Experts (“SJE”) so as to limit
the ambit of cross-examination.
• SJE will usually be agreed as expert for child.
Child’s Guardian
• In intractable cases, important to hear the voice of the
child.
• A Guardian relays child’s views to the court, even if they
will not dictate the outcome.
• A complex issue as child’s views unlikely to be
determinative unless child old enough for his views to
prevail.
• Judge will listen to child’s views and can reassure him
that he has been heard, even if the outcome is not what
child wants.
• Should Judge meet the child?
Enforcement
• Contact activity directions
• Contact activity conditions
• Fines/compensation for financial loss
• Unpaid work requirement
• Imprisonment
Are any of these enough?
Do any of them work?
Methods of last resort
• Terminating or suspending contact
• Transfer of residence
• Approaches to transferring residence
– Interim Residence Order
– Suspended transfer of residence
– Immediate transfer of residence
• Removal and Local Authority involvement
Problems in the Family Justice
System
• Delay
• Lack of judicial continuity
• Lack of effective penalties
The way forward?
• More mediation
• Remove from the adversarial system
• Do not allow parents to litigate until they
have exhausted all conciliatory remedies
• Is it done better in other jurisdictions?
E.g. Canadian provinces
THE CANADIAN APROACH
Rachel Chisholm
Ontario, Manitoba and Quebec
COMPARISON WITH THE UK
• A high level of contact cases litigated in court:
• Ontario Family Courts: 70% of cases involve access and
custody
• No ‘one size fits all’ solution to high conflict cases: SGB v SLJ 2009
CanLII 24230
• Increasing concerns over delays and shortfalls in the court systems
• Focus on public education, mediation and alternative dispute
resolution, using similar resources such as PIP and mediation
• Key differences:
• Therapeutic resources and therapeutic mediation
• Focus on research
INITIATIVES
• The Divorce Act 1985
• Federal Minister of Justice’s response to the Special
Joint Committee on Child Custody and Access (2001)
• The Supporting Families Experiencing Separation and
Divorce Initiative:
– $122 million between 2009 and 2014
What is High Conflict?
• The Federal Minister of Justice’s response to the Special
Joint Committee on Child Custody and Access (2001):
– Further research to develop an accurate measure of
‘high conflict.’
– Identifiable features include:
• High degree of mistrust
• Rigid/inflexible thinking
• Competitiveness/poor sense of boundaries
– Conclusion: divorce conflict better seen as a continuum
EARLY INTERVENTION
• The Supporting Families Initiative Resources:
• Parenting Information Programmes
• Dispute Resolution Officers
• Mediation (on-site/off-site)
• Family Law Information Centres
• Services to assist with Parenting Plans
• Most common way of streaming ‘conflict’ types
• Resources for children
EARLY INTERVENTION:
PROVINCES
• Ontario:
• Law Commission of Ontario Family Law Justice Interim Report
• ‘Front Door Policy’
• Mandatory Parenting Information Programmes
• Manitoba:
• ‘First Choice’: combines assessment, mediation and counselling.
• Purpose: helps families reach agreement on family and parenting issues without
going to court.
• ‘Caught in the Middle’
• Family conciliation counsellors assist children in working through their
questions about separation.
Prioritising Children Initiative:
Seven Pathways To Success
Multi-disciplinary strategy combining the efforts of:
1. The Superior Court of Justice
2. The Courts
3. The Ministry of the Attorney General
4. The Legal Resource Justice Partners
5. The Legal Profession
6. The Law Schools and Academia
7. The Medical and Mental Health Profession
HIGH CONFLICT CASES
JUDICIAL INTERVENTION
• Use of a Parenting Co-Ordinator and detailed Parenting Plans
• Therapy and therapeutic resources:
• S.G.B v S.J.L 2010 ONSC 3717/ Matos v Driesman 2009 CanLII 74651
• Court assessments
• Penalties
• Compensation
• Fines: Cooper v Cooper [2004] O.J. No5096 SCJ
• Imprisonment for contempt
• Transfer of Custody: Reeves v Reeves [2001] O.J. No 308 Ont SCJ
• Declaration of Alienation: C.C. v M.S. [2005] CanLII 17274
• Streaming High Conflict Cases
PARENTING PLANS:
CONFLICTS AND RESOURCES
High Conflict: Key Elements of Parenting Plan
• Minimal contact between parents
• Detailed and precise
• A ‘primary parent’ for decision making
• Communication book
• Neutral place for handover
Referral to Community Resources
• Counselling and therapy
• Supervised contact centres
• Referral to child protection agencies if necessary
PARENTING PLANS:
CONFLICTS AND RESOURCES
Low Conflict:
Key Elements of Parenting Plan
• Possible joint and shared decision making
• Flexibility between parents within the plan
• Focus on contentious issues within the plan
Referral to Community Resources
• Mediation
• Parenting Information Programmes
• Group or individual support counselling
Thank you!
Caroline Willbourne
willbourne@1gc.com
Rachel Chisholm
rc@4pb.com