T (A Child), Re

Where a child’s alienation from a parent is apparent, the family court’s quasi-inquisitorial task is to investigate its origins. The inquiry is not confined to deciding whether the other parent acted malignly or deliberately. The judgment must identify the essential findings and reasoning on that central issue.

A serious deficiency in those findings may justify appellate intervention while leaving undisturbed findings that the other parent acted honestly and without malign intent. Where judicial evidence is inadequate, prompt investigation by an appropriately instructed mental health expert may be required.

A father appealed from Wilson J’s directions following a lengthy hearing concerning contact with his nearly 11-year-old son. After years of substantial contact, the child had abruptly begun refusing contact and making serious allegations against the father. The judge found that the father had problems with alcohol and prescribed drugs, but adjourned the mother’s application to suspend contact and permitted only indirect contact pending further review.

The father alleged that the mother and her family had caused the child’s alienation. The judge rejected malign conduct by the mother but did not clearly determine whether she had otherwise contributed to the alienation. The central issue was whether that omission, and the absence of adequate investigation into the origins of the child’s sudden hostility, rendered the judgment and directions defective.

1. Appeal allowed unanimously. Thorpe LJ, with whom Rix LJ and Arden LJ agreed as to the result, held that the judgment contained a sufficiently serious deficiency concerning the origins of the child’s alienation. The directions made on 21 June 2002 were set aside.

2. The father failed to establish his high case that the mother had deliberately and malignly indoctrinated the child. Wilson J’s findings that she was generally truthful and far from malign remained undisturbed. Nevertheless, the sudden emergence and subsequent escalation of the child’s hostility created a prima facie issue which required adequate investigation. The judge should have considered whether the mother had, consciously or subconsciously, transmitted the paternal uncle’s malign influence or whether the wider maternal family environment had contributed.

3. The family judge performed a quasi-inquisitorial role. That role required investigation of the origins of the alienation, rather than merely adjudication upon an allegation of malign alienation. The absence of a clear finding, or a clear statement that no finding could yet be made, left the basis for future judicial supervision obscure.

4. Arden LJ applied the minimum standards concerning adequate reasons stated in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. A judgment need not address every argument, but it must identify the issues vital to the decision and explain how they were resolved. Where reasons appear deficient, the parties or appellate court should consider seeking timely clarification or amplification from the trial judge.

5. The Strasbourg authorities suggested that conventional methods of investigating alienation might not satisfy articles 6 and 8 of the European Convention on Human Rights. The court did not base its decision on those authorities. The domestic quasi-inquisitorial obligation was sufficient to decide the appeal.

6. A retrial was inappropriate because of cost, delay and stress. The parties were directed to settle immediate joint instructions to an approved consultant child psychiatrist. The father was to provide reports concerning his treatment and prognosis. The matter was remitted for an urgent Family Division directions hearing, at which separate representation of the child and measures to restore communication could be considered. Immediate staying contact was refused as unrealistic while the father underwent treatment.

1. Court of Appeal (Civil Division): The father’s appeal was allowed unanimously. The directions made below were set aside, joint psychiatric instructions were ordered and the matter was remitted for an urgent Family Division directions hearing: [2002] EWCA Civ 1736.

2. High Court, Family Division: Following a lengthy trial, Wilson J adjourned the mother’s application to suspend contact, restricted the father to indirect contact in the interim and contemplated later psychiatric assessment. No neutral or report citation for that decision is stated in the judgment.