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parent-alien
Parental Alienation
  • Feb 3, 2021
  • Latest Journal

by Lydia Pilati Family Law Associate at JMW Solicitors LLP

Parental alienation refers to a process in which a parent, commonly the one with day-to-day care of the child, acts or speaks in a way without legitimate justification to cause the child to reject their relationship with the other parent.

The legal and practical issues arising from parental alienation have come under review in recent years, with many (1) sharing the opinion reported by The Telegraph that it is “a form of child abuse that should be dealt with like any other form of neglect or abuse” (2) and treated as a criminal offence.

Indeed, parental alienation is a criminal offence in some countries such as Brazil and Mexico and in other countries, such as Italy, the offending parent may incur a penal fine, if their behaviour is persistently repeated.

In late 2016 a petition in England and Wales sought to introduce a law to recognise parental alienation as a criminal offence (3). However, although the petition acquired 15,083 signatures, the government did not believe it necessary to introduce it as a criminal offence, adopting the view that the courts alone could take effective action against such behaviour. The government concluded the family court has a sufficient range of powers to deal with parents demonstrating alienating behaviours as part of their judicial role to uphold and administer the law, in particular, the Children Act 1989, in which a child’s welfare is of paramount consideration.

It is difficult to determine exactly how parental alienation should be treated and it is most certainly a controversial issue. Irrespective of this, it appears to be a growing concern, (4) and from personal experience, it is now commonly cited among separating families, between professionals and in the courtroom.

Parents turn to the courts to tackle the issue and take effective action, in the hope they will prevent any further emotional damage to their child and see their relationship with them restored. Recent cases involving the issue of parental alienation indicate the measures, sometimes drastic, the court will take.

The recent judgement of Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 provides a good working definition of parental alienation, and a useful warning to practitioners on the impact delayed proceedings will have in terms of parental alienation being further ingrained in the child which becomes too late to reverse.

In Re S, the definition of parental alienation provided by the Children and Family Court Advisory and Support Services (CAFCASS) was deemed “sufficient”. It is defined by CAFCASS as: “when a child’s resistance / hostility towards one parent is not justified and is the result of psychological manipulation by the other parent. To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters not the motive”.

In respect of the impact of delayed proceedings, Lord Justice Peter Jackson who gave the judgement summarised: “in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures available. The situation call for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not present a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parents right to respect family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement but it is emphatically not necessary to wait for serious, worst still irreparable, harm to be done before appropriate action is taken. It’s easier to conclude that decisive actions was needed after it has become too late to take it.”

With this in mind, the case of Re H (Parental Alienation) [2019] EWHC 2723 (Fam) is useful in highlighting not only the trauma children can suffer when alienated from a parent, but also the drastic measures the Court may take to ensure that a child’s welfare interests are met.

Re H involved an application made by the father of a 12 year old boy for a change of residence on the basis that his mother was demonstrating alienating behaviours towards the father.

The parents of the child had been separated for many years and, up until early 2018, the child had enjoyed regular contact with his father and his paternal family. However, since the parents’ separation in 2007, there were continuous court proceedings, and the mother made many attempts to frustrate the father’s contact with the child, including making allegations of domestic abuse against the father, which were later dismissed by the court.

In and around May 2018, direct contact with the father stopped, and it became apparent from the dramatic change in the child’s messages to him that he was reflecting the mother’s conflictual relationship with the father, and that she was prioritising her needs above the child’s.

Upon hearing the evidence, including that of Dr Janine Braier, a psychologist and expert in the field of parental alienation, Mr Justice Keehan found that the mother had alienated the child from his father and accepted the child was “triangulated within his parents’ conflictual relationship” and that “therapeutic intervention aimed at restoring his relationship with his father whilst in the care of his mother was ill advised”.

On this basis, Keehan J made a child arrangements order for a change of residence, and placed a three month embargo on the mother’s direct contact. Although Keehan J recognised that a change of residence would cause the child distress, this, in comparison to the trauma the child was suffering from the alienation of his father, would be of short duration.

Keehan J recognised the trauma and harm children suffer as a result of alienation and deemed that if the child’s alienation from his father continued, this could damage his mental and emotional wellbeing, including among other behavioural issues such as:

• Poor self-esteem or inflated self-confidence;
• An inability to form meaningful and positive relationships;
• Depression and anxiety and Post Traumatic Stress
Disorder; and
• Identify diffusion or identity crises.

In her evidence, the expert witness, Dr Braier, emphasised the need for experienced practitioners with specialist training to take on cases in “the area of implacable hostility and alienation”. As such, the court was critical of the social worker, who had no experience of cases involving alienation, and called the s.37 report (a report ordered by the court and carried out by Cafcass because they are worried about the child) “woefully inadequate”. Furthermore, the National Youth Advocacy Service (NYAS) Caseworker was criticised for giving “no consideration at all of the adverse role of the mother…or the extent to which the mother had alienated the child against the father”.

The case of Re H demonstrates the need for practitioners to be alive to the issue of parental alienation, and the repercussions it can have on a child, if left undetected. Not only does Re H highlight the need to carefully consider the facts of each case where parental alienation may be an issue, but also the need to gather expert opinion from a trained professional, early on in the proceedings. Practitioners must be mindful to resolve any obstruction of contact with the view and hope that if addressed early enough, any further psychological damage to the child may be prevented.

It is clear there is a no one size fits all approach when dealing with parental alienation, and it is difficult to determine exactly how it should be treated. In some cases it may be that a robust approach is necessary, with others a more gentle approach. It is clear however, that the right expert with experience and training in this field are engaged to offer advice. What is important is that parents do not see the headlines of parental alienation and believe it to be a hopeless issue, one that cannot be reversed or overcome.

References
1, https://www.change.org/p/uk-parliament-make-parentalalienation-a-criminaloffence#:~:text=Parental%20alienation%20needs%20to%20be,within%20the%20criminal%20justice%20system&text=At%20the%20extreme%20end%2C%20it,an%20ex%2Dparent%20as%20well.

2. Anthony Douglas Chief Executive of the Children and Family Court Advisory and Support Service (CAFCASS) The Daily Telegraph ‘Divorced parents who pit children against former partners ‘guilty of abuse’ by Lexi Finnigan on 12 February 2017 [https://www.telegraph.co.uk/news/2017/02/12/divorced-parents-pit-children-against -formerpartners-guilty/]

3. https://petition.parliament.uk/archived/petitions/ 164983

4. https://www.theguardian.com/society/2016/jul/14/ programme-aims-to-help-people-affected-by-parental-alienation#:~:text=Parental%20alienation%20is%20estimated%20to,North%20America%20experience%20parental%20alienation.