Re S (Parental Alienation: Cult) [2020] EWCA Civ 568

11/12/2020 10:56

Re S (Parental Alienation: Cult) [2020] EWCA Civ 568

The Court of Appeal allowed an appeal by a father against the dismissal of his application for Lara, an 9 year old girl, to live with him, in circumstances where the trial judge had found that Lara had suffered harm in the context of her mother’s adherence to Universal Medicine, found by the judge to be a cult, and that a process of alienating Lara from her father had begun.

Universal Medicine
Universal Medicine is a belief system founded in Australia in 1999 by Serge Benhayon with teachings called "The Way of the Livingness" covering every aspect of human activity. Adherents are said to lose the capacity to question or scrutinise what they are taught; anyone who leaves is warned of curses they will suffer and told they will lose all access to healing and salvation. 

In 2018 the Supreme Court of New South Wales found that Universal Medicine was a socially harmful cult and Benhayon a sexually predatory charlatan who assaulted female students and had an indecent interest in children as young as ten. (Benhayon v Rockett (No 8) 2019 NSWSC 169.)

Freedom of belief
Lord Justice Peter Jackson, giving the judgment of the court, approved HHJ Meston's analysis of the law's treatment of sects, cults and minority groups in cases involving children. Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms gives absolute protection to freedom of thought, conscience and religion, with the exception that only religions and philosophies which are "worthy of respect in a 'democratic society' and  are not incompatible with human dignity" are protected (see Campbell and Cosans v United Kingdom (No 2) (1982) 4 EHRR 293, [36]. There was no suggestion that Universal Medicine was not worthy of that respect.

Article 9(2) qualifies the protection of Article 9(1) in that the "manifestation" of one's religion or belief in "worship, teaching, practice and observance" are subject to "such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

The Family Court's approach is cautious and neutral, concerned only with the welfare of the child and any harm or potential harm indicated by the evidence.

Parental alienation
The Cafcass definition suffices for working purposes: "When a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent." That manipulation need not be malicious or deliberate. If orders are required, the court can consider a fundamental revision of the child arrangements, which is not a last resort; the judge must consider all the circumstances and choose the right solution, taking a medium to long term view and not according excessive weight to short-term problems.

The court must respond to alienation with exceptional diligence; the situation calls for judicial resolve. It is not necessary to wait for serious or irreparable harm to have occurred before taking action.

The facts
The parents separated when Lara was approaching a year old, the mother becoming an adherent of Universal Medicine and its doctrines. She engaged in monthly sessions with a healer, restricted her and Lara's diet and attended events at the Lighthouse, the organisation's European base in Somerset, sometimes taking Lara with her. In 2015 the father raised concerns with the local authority about the impact on Lara, while the mother raised sexual abuse concerns because father co-slept with her when she stayed with him. The LA involvement was short-lived.

In 2015 the father sought a CAO for shared care and a specific issue order to prevent Lara having further contact with Universal Medicine. An agreed order was made in 2017 incorporating shared care and a detailed PSO essentially barring mother from involving Lara in Universal Medicine's activities or instilling in her its teachings.

Shared care started in April 2018; in May the GP made a referral about Lara's vaginitis and mother's concern about her co-sleeping with father. No risks to Lara were identified. That summer the mother took Lara to The Lighthouse and the father became increasingly worried about Lara including about her restricted diet and anxiety about food; the GP considered her at risk of an eating disorder. 

Father then issued an application for Lara to live with him and spend time with her mother, provided that she adhered to the PSO. A highly experienced ISW, Helena Ware, reported that Lara would prefer to spend more time with her mother than her father. She identified that mother had not understood the grave concerns about Universal Medicine and was deeply steeped in its teachings. If she continued to be associated with it she would influence Lara, who was at risk of being alienated from her father and suffering harm. It was doubtful she could extricate herself without significant therapeutic support and genuine commitment to doing so. Unless she did, Ms Ware recommended Lara live with father full-time. 

The mother alleged the father to be coercive and controlling. There were continuing veiled suggestions of sexual risk from father, with no evidence to support them.

First instance decision
The judge did not consider father to have been coercive or controlling. He accepted the father's case, and Ms Ware's evidence, about the harm suffered and risk of further harm from the mother's involvement with Universal Medicine. He found that alienation had started to occur. 

He also found that Lara would find it particularly upsetting to curtail her time with her mother and move to her father's home full time. He considered the mother to be sincere and genuine when she said that she would do whatever was reasonably required of her in order to retain the care of Lara and if necessary would walk away from Universal Medicine. He dismissed the father's application and maintained the shared care arrangements, subject to the mother making appropriate undertakings. The undertakings offered by mother were however insufficient and the issue had not been resolved by the time of the appeal.

Notwithstanding the dismissal of father's application, the proceedings were adjourned firstly in order to deal with emerging difficulties arising over Lara's time with her father and then for further work and an update from the ISW. 

The appeal
The mother's Respondent's notice sought a reduction in the father's time with Lara and contended that the decision should be upheld on additional grounds, including failure to find coercive control and insufficient consideration of Lara's sore vagina and bedsharing with father. This amounted to a cross-appeal for which permission was not sought prior to the appeal hearing. Permission was refused, Peter Jackson LJ observing inter alia that the unjustified slur about sexual risk should not have been made in professionally drafted documents. 

It was apparent from the way mother put her case that she did not accept the judge's findings about Universal Medicine, respect Ms Ware's opinion or have any time for the father's fears for Lara.

The Court did not interfere with any aspect of HHJ Meston's fact-finding but considered that there were errors in his evaluation and balancing of the risks. He was right to find Lara at immediate risk but it was difficult to know why he thought the mother was likely to modify her thinking about Universal Medicine. She had not made a true commitment to disassociate herself or engage in substantial therapy to do so and there was no reasonable basis on which to expect that she would do so in the foreseeable future. The judge had found that no reasonable parent could disregard the Australian decision (supra) yet it was not apparent that she had read it. 

Dismissing father's application at a time when the mother had not proffered sufficient undertakings was a failure to get to grips with the problem, which was plainly intractable; the harm from Universal Medicine was set to continue.

Furthermore the judge, having identified alienation, should have taken effective steps to counter it. He should also have addressed the insinuation of sexual impropriety, which could have provided support for the father's case of alienation.

The judge did not balance up the various risk factors sufficiently or contrast the long-term harm from Universal Medicine and parental alienation with the short-to-medium term harm caused by a move. By dismissing the father's application he gave "inordinate weight" to the disadvantages of a change of living arrangements  "designed to address the deep-seated problems within the family." The appeal was allowed.

The Court of Appeal had most if not all of the information to enable it to remake the welfare decision. On a very fine balance it decided to remit the matter to a further hearing before the President in July on the basis that the factual foundations for future decisions are contained in the judgments of HHJ Meston and the Court of Appeal, HHJ Meston's evaluations of harm caused by Universal Medicine and alienation are undisturbed and thus only updated evidence is needed. The mother was given a final opportunity to disassociate herself from Universal Medicine, start intensive therapy and reverse the process of alienation and warned without such wholesale transformation the court at the future hearing is likely to find it necessary to transfer care to Lara's father.