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Case Law - children need to go or it is a failure of parenting

Case Law - children need to go or it is a failure of parenting 2023-11-16

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The attached article includes two useful pieces of case law. Case Law is something an LIP or Barrister can use, at a final hearing, to persuade a Judge of a legal precedent. Of the two Judges mentioned, one, MacFarlane LJ, is now Sir Andrew Macfarlane, the President of the family division. The other, Sir James Munby, is the former President of the Family Division - now retired.

It basically says that it is not an excuse to say - the children don't want to go, or the Mother (it's usually a Mother but not always) says she can't force them to go. But that it is a duty to ensure they teach the children it's what they must do and if they can't do that, it's a failure of parenting.

Judges at hearings are obliged, I believe, to follow the legal precedent of the case law presented to them. However, the other side, often quotes different caselaw that may be contradictory, so it can come down to circumstances, who is the most persuasive, and the Judge weighing up the legal precedents and particular case.

"Crucially, parental responsibility involves establishing contact between a parent and child when it is safe and beneficial to do so. As stated by McFarlane LJ (as he then was) in the earlier case of Re W (Direct Contact),3 “[w]here … it is plainly in the best interests of a child to spend time with the other parent, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be."
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The case law has emphasised that parental responsibility in such circumstances necessitates a parent not unreasonably ‘shirking’ responsibility. McFarlane LJ in Re W (Direct Contact) notes that it is “not … acceptable for a parent to shirk that responsibility and simply say ‘no’ to reasonable strategies designed to improve the situation in this regard.”5 This has been endorsed by Sir James Munby in Re H-B (Contact), who notes that it is similarly not “acceptable for a parent to shirk their responsibility by sheltering behind the assertion that the child will not do, or even that the child is adamantly opposed to doing something…6 He goes on to note:


As McFarlane LJ observed (para 75) [of Re W (Direct Contact)], the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case of the older child, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.”

To read the full article, a chapter from ‘A Practical Guide to Parental Alienation in Private and Public Law Children Cases’ by Sam King QC & Frankie Shama' - click on "Go to Download" top right.​
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There's a really useful list that can be used to give examples of alienating behaviours, for position/witness statements.
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