Pour peu qu’il ne soit pas ordonné trop tardivement, un transfert de résidence est souvent l’option la plus réaliste en cas d’aliénation parentale, au regard de l’intérêt supérieur de l’enfant. C’est ce que comprennent de mieux en mieux les magistrats britanniques, comme l’atteste une nouvelle décision prise en ce sens aujourd’hui par le juge Michael Keehan. Il est à noter qu’icelui se réfère à la décision prise par le juge Andrew McFarlane, président de la Family Division de la High Court of Justice, dans l’affaire Re L (A Child)  EWHC 867 (Fam) en avril dernier .
En l’espèce, deux parents mariés en 2005 s’étaient séparés deux ans plus tard. Les procédures judiciaires concernant leur enfant – un jeune garçon maintenant âgé de douze ans – se succédèrent ensuite pratiquement sans discontinuer : la présente décision met un terme à la sixième série… La mère avait notamment accusé à plusieurs reprises le père de violences, mais ses allégations avaient toutes été rejetées. Ce nonobstant, l’enfant, qui vivait avec sa mère, avait entretenu des relations régulières et de qualité avec son père et sa famille paternelle jusqu’en mars 2018. Les contact cessèrent alors brusquement, hormis quelques messages électroniques agressifs envoyés par l’enfant à son père au mois de mai suivant.
Pour prendre sa décision, le juge Keehan s’est appuyé sur les observations détaillées du docteur Janine Braier, une psychologue ayant développé une grande expertise en matière d’aliénation parentale, qui avait longuement évalué l’enfant et ses parents. Voici quelques-unes de ses observations :
« 11. [The child]’s current expressed wishes may reflect mother’s difficulty in providing [the child] with an accurate mirror of his own feelings as a child. […]
« [The child]’s presentation suggests that he is triangulated within his parents’ conflictual relationship. […]
« [The child] is currently prioritising his mother’s needs over his own […].
« [The child]’s responses from the Child Attachment Interview, perception of parent’s scale and the Bene Anthony Family Relations test were all consistent with those typically seen in alienated children, with exclusively negative messages to his father and paternal family […] and almost exclusively positive incoming and outgoing items towards his mother.
« This lack of ambivalence makes [the child]’s presentation more likely to be alienation than estrangement resulting from his father’s behaviour. His response is extreme and excessive, a presentation not seen in children whose parents have been neglectful or abusive. […]
« 12. […] Mother’s views of the father are entrenched […].
« Unfortunately, therapeutic intervention aimed at a restoring [the child]’s relationship with his father whilst in the care of his mother is ill-advised, not only in light of the research evidence, but the failure of any previous threat of change of residence to change the course of this case or mum’s stance, with the consequence that [the child] now has no relationship with his father.
« Even though there may be transient distress, particularly as [the child] is now settled in his secondary school, with friends, this needs to be weighed against the need for removal from his mum, to protect him from further harm, in the form of the consequences of complete loss of his dad.
« […] A child’s alienation from one of his parents, in the manner which has now finally happened to [the child], is associated with a higher risk of long term problems of poor mental health and relationships. […]
« Cases like this require practitioners with considerable experience and specialised training in the area of implacable hostility and alienation, within the legal framework, with judicial oversight, with restoration of [the child]’s relationship with his father as the primary consideration, to protect him from further harm.
« [This] kind of work […] requires residential therapy with [the child] and his father in the family paternal home, in the first instance, over at least 4 days and 4 nights, with a 12 week follow up of therapy sessions. »
Le juge Keehan en tire cette conclusion intermédiaire :
« 13. In her oral evidence, Dr Braier said that [the child] may on the surface appear to be fine emotionally, but he is not. […] Parental alienation is very harmful to a child. It skews the child’s ability to form any and all sorts of relationships and is not limited to the failed relationship with the other parent. In this case, there is now no other option but to transfer residence of [the child] to his father in the welfare best interests of this child. If, short of a transfer, an attempt was made to re-establish contact [the child], whilst remaining in his mother’s care, is likely to become even more entrenched against his father. »
« 14. I then heard evidence of the author of a s37 report by the social worker […]. This social worker had no previous experience of cases of parental alienation, she had made a passing referred to Dr Braier’s comprehensive report. In my view this report of [the social worker] is woefully inadequate. It is critical of the father but not of the mother and had no regard to Dr Braier’s opinion and conclusions. In the premises I have taken no account of this report or of the evidence of this witness. »
« 15. I then heard evidence from […] the NYAS caseworker. In her report to the court she made only a passing reference to Dr Braier’s report. For the purposes of compiling her report she spoke once to each of the parents briefly on the telephone. There is no reference in the report to the author having a lack of time to complete her enquiries or to make a recommendation. Rather there is a clear and unequivocal recommendation that [the child] should live with his mother and have no contact whatsoever with his father. In her report, she only considered the negative issues about the father and set out the mother’s criticisms of him. There is no consideration at all of the adverse role of the mother in [the child]’s life nor did she give any consideration as to the extent, if at all, to which the mother had alienated [the child] against his father. She accepted [the child]’s expressed wishes and feelings at face value and had no consideration to Dr Braier’s opinions.
« 16. In her oral evidence, she completed a volte face, in that she made no recommendation to the court about with whom [the child] should live or the contact he should have with the non-resident parent. Despite being pressed she could give no explanation for:
- the failure in her report to raise the issue of a lack of time to complete her enquiries or to write the report; or
- for the change in the recommendations now made.
« [She] accepted she had solely focused on the father’s role and had not addressed at all the mother’s role. In the light of Dr Braier’s reports, this is a startling and serious omission. When asked why she had not instructed counsel at the beginning of this hearing to request an adjournment of this final hearing, she could not give a cogent answer.
« 17. These serious omissions and deficits in her report undermine its reliability. »
Au terme de la recension de l’exposé des moyens de chacune des parties, le juge Keehan formule quelques remarques sur chacun des parents, dont celles-ci :
« 20. The father […] readily accepted that he had made errors in the past and had drawn [the child] into the conflict between the parents. […] He has, however, reflected upon his past behaviours and is ready to move forward. […] The father is committed to undertake the therapy and work advised by Dr Braier.
« 24. [The mother] spoke of supporting co-parenting between herself and the father. She was however […] wholly passive aggressive in giving this evidence because […] she could not and did not resist every opportunity to castigate and blame the father for the breakdown of contact. Her evidence was largely taken up with a veritable diatribe against the father. »
Le juge Keehan livre ensuite son analyse. En voici quelques extraits :
« 25. I have no hesitation in accepting the unchallenged opinion and recommendations of Dr Braier. […]
« 26. I formed a very positive view of the father […].
« 27. [The mother] repeatedly lied in her evidence. […]
« 31. I am wholly satisfied that, on the totality of the evidence, the only means by which [the child] can have a full relationship with both of his parents would be to make a Child Arrangements Order that [the child] live with his father. Such a step is not without the risk of causing [the child] trauma and emotional harm. […]
« 32. I do not underestimate the trauma and stress [the child] will endure if a transfer of residence is ordered. I am however entirely satisfied and find that:
- [The child] would be fully supported by his father and the paternal family;
- [The child] will have the support and guidance of an independent expert in this field;
- it is most likely that his former close relationship with his father will be restored in very short order and;
- any trauma and or stress is likely to be of short duration only and will resolve when he settles into his father’s care. »
Le juge Keehan formule enfin ses conclusions. En voici le principal :
« 35. I have come to the following clear conclusions:
- the mother has alienated [the child] from this father;
- she does not support the father having a role in [the child]’s life;
- the absence of the father from [the child]’s life has, is and will cause [the child] emotional and social harm;
- if [the child] remained in his mother’s care, the prospects of [the child] having a meaningful relationship with his father are, at best, poor; and
- the only means by which [the child] can enjoy a relationship with both of his parents is to transfer residence to the father; nothing else will do in the welfare best interests of [the child].
« 36. […] The transition plan placed before the court by the independent social worker instructed is comprehensive and will support [the child] transferring and settling in his father’s care.
« 38. I shall make a Child Arrangements Order that [the child] shall live with his father and will spend time with his mother subject to [a] three-month embargo. […]
« 39. […] In light of my decision the Independent Social Worker was to collect [the child] from school that afternoon and transport him down to his father’s home in […] the South of England. The paternal family had agreed to leave the family home for a short period to enable [the child] to have time and space to settle into his father’s care. I have been informed that that process proceeded without incident and the transition plan to date has been effective. »
- High Court of Justice (Family Division)
Décision : Re H (Parental Alienation)  EWHC 2723 (Fam) du 3 octobre 2019
- Rappelons que, contrairement à la pratique des systèmes juridiques de tradition civiliste qu’on connaît en France, la jurisprudence pèse d’un très grand poids dans les systèmes juridiques anglo-saxons – dits de common law – où elle constitue la principale source du droit. De façon générale, la règle du precedent impose aux juges de suivre les décisions judiciaires antérieures.
Attention ! La jurisprudence et la loi évoluent en permanence. Assurez-vous auprès d’un professionnel du droit de l’actualité des informations données dans cet article, publié à fin d’information du public.
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