At the end of a relationship, there can often be animosity between the parties. This can sometimes spill out into arrangements for childcare. In recent years, there has been a high level of media attention around the concept of ‘parental alienation’, leading many of our clients to mention this when they first contact us. Many individuals are not aware that this is a concept which has consistently been rejected by the English Courts. In April 2018 Cafcass Cymru, who provide child-focussed advice and support to the Family Court in Wales, published a ‘Review of Research and Case Law on Parental Alienation’ hoping to bring some clarity to this area.

The term ‘parental alienation’ is ill-defined. The Courts have made clear that implacable hostility of one parent is not a sufficient ground on which to refuse contact between the child and other parent. In the US, Canada and Europe, the term ‘parental alienation’ is used in the same way in which UK courts use the term ‘implacable hostility’. The Review, in contrast, uses the term to describe ‘unwarranted rejection of the alienated parent by the child, whose alliance with the alienating parent is characterised by extreme negativity towards the alienated parent.’

Spotlight on a Case

In the case of Re L, V, M and H (children) [2000] the Court of Appeal rejected psychiatric expert evidence regarding parental alienation syndrome. It was held that parental alienation is not a useful concept because it assumes a linear relationship between a cause and effect, whereas there can be many factors which together have affected the relationship between the child and ‘alienated’ parent. Furthermore, the term ‘parental alienation’ can unjustly label the other parent as an ‘alienator’. Although implacable hostility is not a legal basis for stopping contact, many people may sympathise with their reasons for seeking to do so which may not be entirely irrational, for example, if there is a history of abuse inflicted upon them by the other parent. Contact between the non-resident parent and child will usually involve some level of communication between the parents which may be used as a mechanism through which to continue emotional abuse. Post-traumatic stress suffered by the resident parent may also be exacerbated by having to participate in such communication.

Developments since Re L, V, M and H (Children) [2000]

The decision in Re L, V, M and H (children) [2000] is not to say that there are not cases where hostility is not based on real events or experience. In my opinion, it is only these cases in which the term ‘parental alienation’ can accurately be used. This is a growing body of opinion since the judgement. The difficulty comes in distinguishing such cases from ‘implacable hostility’ cases. In order to do so, the judgement in the case of Re J [2018] emphasised the need to address allegations of domestic abuse at an early stage. In accordance with Practice Direction 12J, a fact-finding hearing should, therefore, take place before Cafcass are ordered to carry out a ‘section 7’ Report. This means that Cafcass will have a factual basis on which to base their report. Furthermore, dismissal of allegations without factual basis at an early stage will allow cases to be dealt with more efficiently, preventing cases where the alienation has continued to the point of no return.

In some cases, where parental alienation has been deeply entrenched by the child, it may be more harmful to force contact on the child. In some cases, even where the alienated parent’s behaviour cannot be criticised, the effect on the child of ongoing contact proceedings is such that the court will decide those proceedings should not continue.

Since L, V, M and H (children) [2000], research has been carried out regarding the impact of parental alienation. Evidence shows that alienated children have identity issues, a tendency towards manipulative behaviour, lack of respect for authority, and feelings of abandonment. Furthermore, parental alienation has been linked with depression and lack of independence in adulthood associated with their strong alliance with the alienating parent.

The Child’s Wishes

Additionally, parental alienation cases should be distinguished from cases where the alienation comes directly from the child as opposed to through the influence and manipulation of the resident parent. In child arrangements cases, the Court will base its decision on the ‘welfare checklist’ under section 1(3) Children Act 1989. As children get older, their views are given increasing weight by the Courts. Where an older child has clearly expressed their wishes not to see the other parent, the court must carefully explore the basis of this resistance before overriding it, i.e. whether it has come from their independent thoughts or through manipulation by the resident parent.

Intervention

The Court will be mindful of making orders which cannot realistically be enforced. In child arrangement cases the court is unlikely to commit a parent in breach, to custody in prison since the child’s best interests are not best served by doing so. Due to long adjournments, early intervention is key. The Report suggests therapy, retreats, and workshops involving the child and both parents to get to the root of the alienation.

Cafcass have published a new assessment framework (Child Impact Assessment Framework) to support Family Court Advisers in private law cases. Parental alienation remains an under-researched area, therefore, the framework is to be treated as a living document, updated in line with practice, research and developments.

Conclusion

In conclusion, ‘parental alienation’ can be an overused term due to media attention in recent years but is nevertheless an important thing to look out for. Early assessment of allegations, early intervention through creative means, and careful consideration of the wishes and feelings of the child are key in such cases.

We take a solution-focused approach to arrangements for children, and work with you to find a short and long term resolution. Please contact us to discuss your individual situation.

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