‘Alienation’ – State of Affairs

What is parental alienation?

The family world of ‘parental alienation’ has been scrutinised over recent times both in case law and through the media. The focus has been very much as if this is a new phenomenon, however from my experience, what parents say and do when they separate both directly and indirectly to children has formed the basis of alienating behaviours for decades.

There is no legal definition of parental alienation but what we do have is the approach taken by the Children and Family Court Advisory and Support Service (“Cafcass”). Cafcass uses the term “alienating behaviours” to describe circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviours of one parent that have the potential to undermine or obstruct the child’s relationship with the other parent.

What is the current situation?

Back in 1985 American Child Psychologist, Richard Gardner, explained ‘parental alienation’ as a syndrome, something that has never been accepted by the medics and has been criticised as lacking scientific validity and not considered reliable.

He described that alienation is psychological manipulation which results in disrespect or hostility towards a parent, undue influence of a child which can result in extreme but unwarranted fear.

This year, the Domestic Abuse Commissioner, Nicole Jacobs called for urgent reform and cultural change within the Family Court Report 2023.  As is now common place, following recent case law the concept of ‘parental alienation’ is discredited and follows the Harm Report from 2020.

This report is very much welcomed; there needs to be an urgent reform to the way in which we deal with private law children cases, so families can be assisted and supported when going through a difficult emotional journey. More importantly, it will ensure that children are protected from harmful behaviour that can often transcend to irreparable damage to a child’s emotional welfare.

The conclusion of this Report includes ‘the family court is failing in its ability to effectively engage with domestic abuse and is lacking a child-centric model’. 

The report has 10 key recommendations which need to be analysed vey carefully as they include aspects of matters that fall very firmly in supporting survivors and children by providing survivor support, sustainable funding, transparency, the voice of the child and overall culture change.

How will the Courts deal with parental alienation moving forward?

The Family Justice Council has now issued draft guidance which is open to consultation.  It details how to respond to allegations of alienating behaviour, emphasising that any response must be evidence based, outlining what the actual evidence base is of such behaviour, possibly within schedules. It then provides a flowchart of how the Court should allocate and deal with such cases.

Following case law the flowchart stipulates that the courts focus should be on the identification of ALIENATING behaviour and the IMPACT of that behaviour on the RELATIONSHUP OF THE  CHILD with either of his/her parents.  There needs to be the factual matrix to identify that the child does not or is reluctant to see a parent and whether this is justified.  The hostility that may be present needs to be scrutinised and finding of fact hearings which result in findings should be where the hostility is the result of psychological manipulation.

There are options available to courts where alienating behaviours are identified depending on the spectrum between the transfer of residence cases and cessation of contact with the non-resident parent.

Three elements need to be established:

1. The child is refusing, resisting or reluctant to engage in a relationship with a parent or carer
2. The refusal or resistance or reluctance is not consequent on the action of the non-resident parent towards the child or resident parent
3. The resident parent has engaged in behaviours that have directly or indirectly impacted on the child leading to the child’s refusal, resistance or reluctance to engage in a relationship with the other parent.

Behaviours can include:

• repeatedly or constantly criticising or belittling the other.
• unjustifiably limiting or restricting contact or undermining contact.
• forbidding discussion about the other parent.
• creating the impression that the other parent dislikes or does not love the child or has harmed them or intends them harm.
• denying emotional responsiveness to the other parent or spurning, terrorising, isolating, corrupting, or exploiting behaviours

Final thoughts

As a professional dealing with these cases, one must be alive to the distinction between a parent who is generally opposed to contact, a child who is implacably opposed to contact with a parent and a parent who is engaging in alienating behaviour.  It is hoped that the momentum that has been gained in the above case law and draft guidance helps the courts identify these cases at an early stage and change the landscape that has historically and frequently left the non-resident parent with no contact with their child, and a child who has lost a parent which can impact detrimentally and have long lasting effects upon them, into adulthood.