Parental alienation: turning the tide

Parental alienation occurs on a spectrum, but even in less extreme cases the impact on the child can be substantial. There is no formally accepted definition of parental alienation in family law, partly because it is a complex concept which can manifest in several different ways. A good starting point is the Cafcass definition which says parental alienation is: “When a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.” Parental alienation is one of several reasons why a child may be reluctant to spend time with one parent post separation.

As Cafcass sets out, “all potential risks factors, such as domestic must be adequately and safely considered, reduced or resolved before assessing the other case factors or reasons”. The Children Act 1989 presumes that spending time with their mother and father will be in a child’s best interests unless there is a good reason that they should not. Where both parents wish to play a part in their child’s life and it is safe for them to do so, both have a duty to promote contact with the other.

SIGNS AND SYMPTOMS

Behaviours of parental alienation can include:
— Denigrating another parent in front of the child.
— Limiting or preventing contact.
— Giving the child the impression they do not like or trust the other parent.
— Asking the child inappropriate questions about the other parent, encouraging them to play the role of ‘detective’.
— Indicating to the child that the other parent does not care about them. A child can react to parental alienation in a variety of ways including:
— Withdrawing and displaying symptoms of anxiety.
— Displaying anger and aggressive behaviour.
— Stating they do not wish to spend time with the other parent.
— Using adult language and repeating what has been said to them.
— Displaying confusion and uncertainty. The phrase ‘parental alienation’ is appearing more frequently in judgments of the English courts. In 2018, President of the Family Division Sir Andrew McFarlane said he accepts “that in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. “Further, where that state of affairs has come to pass, it is likely to be emotionally harmful to the child to grow up in circumstances which maintain an unjustified and wholly negative view of the absent parent.” His view was that alienation should be dealt with in a similar way to allegations of domestic abuse and should be “investigated and determined as matters of fact, similarly any significant allegation of ‘alienation’, should also be laid out before the court and, if possible, determined on the same basis”.

The case of Re L [2019] EWHC 867 highlighted the difference between “ascertainable” and “expressed” views of the child. The guardian did not ask the child which parent he wished to live with. At this point in proceedings, he had already been alienated from his father by his mother and presented as withdrawn and monosyllabic. His honour judge Robin Tolson QC determined that the child’s answer to the question “who do you want to live with?” would have been obvious anyway – he would only ever have said he wished to live with his mother; but he was so damaged that his wishes and feelings could not be ascertained. In Re A (Children) (Parental alienation) [2019] EWFC B56, leading child and adolescent psychiatrist, Dr Berelowtize, described the case as “one of the most disconcerting situations that I have encountered in 30 years”. Here, the children refused to have anything to do with their father or his family. In his judgment, Judge Wildblood QC observed the “failure to identify, at an early stage, the key issue in this case – the alienation of the children from their father by the mother. By the time that it was identified, the damage had been done”.

The ruling shortly after in Re H (Children) (Parental Alienation) [2019] EWHC 2723 was in line with the ruling in Re A. Re H involved a 12-year-old child who lived with their mother. The mother had raised allegations of domestic violence against the father which had been dismissed. Post-separation, the child had regular good quality contact with his father until March 2018. In May 2018, the child sent messages to the father indicating he had been shown a harsh email the father sent to the mother. Dr Braier, a clinical psychologist, assessed the family and observed that the child’s presentation suggested he was prioritising his mother’s own needs before his own.

REPERCUSSIONS

Parental alienation is a form of child abuse and both child and alienated parent can develop long-term mental health issues. As for the perpetrator, vilifying another in this way with such devastating consequences isn’t technically a criminal act. But there have been recent petitions calling for the introduction of a law recognising parental alienation as a criminal offence. In response, the Ministry of Justice has said the court already has the power to take effective action in such cases. Much of the responsibility for recognising parental alienation appeared to be placed at the feet of Cafcass, but there is continuing confusion among professionals on how to approach this. It is within a judge’s power to order that a child’s residency should be transferred to the alienated parent. It is also possible to order that the perpetrator of the alienation will no longer have contact.

When parental alienation is recognised, direct contact between the child and the alienated parent should be quickly reinstated. There is a heavier-handed approach to the issue in some jurisdictions, for instance, in Mexico and Brazil, alienating a child from a parent is a criminal act. And in some countries, such as Sweden, there’s a cultural expectation that parents have shared care of their children. Would the presumption of shared care be a useful starting point in all cases? Perhaps, though it would need consideration as to how this would work in practice. Theoretically, children would spend half their time with each parent following separation or divorce. Court applications could then be lodged, and evidence provided to demonstrate why a 50/50 shared care arrangement should be departed from.

Educating parents is key. Some parents are in denial about the hostility and the potential impact on the children. Improving communication between the parents, which is mature, business-like and child-focused, is a step in the right direction. A recurring theme is that intervention at an earlier stage helps. To enable this, greater specialist training is needed for family law professionals, social workers and Cafcass officers. Is the current court procedure effective? Where unfounded allegations are made, the options for the accused are bleak. If they want to defend their innocence, a lengthy fact-finding hearing may be needed. It seems unjust, particularly considering legal aid cuts, for a parent to have to spend money on legal fees (which they may need to go into debt to fund) to ensure they do not lose their relationship with their child.

Tragically, a parent determined to destroy the relationship between a child and the other parent will, often, succeed. The substantial failings from a number of parties in cases such as Re A demonstrate that there is still a lot of work to be done. That said, there seems to be a shift in judicial attitudes and the law is likely to get tougher on parental alienation. If the law is working to protect the best interests of children, it must move in the right direction.

The key takeaway for practitioners is if you suspect parental alienation is taking place – act quickly before it’s too late.

Natasha Ord is a solicitor at Stowe Family Law stowefamilylaw.co.uk