In conversation with 4PB’s Mani Basi: parental alienation

Today’s Family Lawyer speaks with Mani Basi of 4PB Barristers to deconstruct the concept of parental alienation.

Mani – what actually is parental alienation?

It is a complex term to define, particularly in the context of family law proceedings. Defining “parental alienation” has received a lot of debate in recent times and some argue that labels are not helpful.

For example, if we consider the following comment in S and T (care proceedings following private law dispute) [2021] EWFC B54 (06 July 2021) at paragraph 75 of the judgment:

“Parental alienation is a loaded term which means different things to different people. It can describe a child who is estranged from a parent for justifiable reasons; if that parent presents as a risk to them. It can describe the motivation or actions of one parent deliberately acting to manipulate and control their child so as to reject the other parent. That process can also take place deliberately or inadvertently, a parent unconsciously transferring onto their child their fears about the other parent or fears of losing control. It can describe the behaviour of a child who appears to reject a parent completely with no rational basis”.

I find this comment to be helpful and I think it is important to emphasise that it is a “loaded term which means different things to different people”.

In practice, some consider it appropriate to look at “alienating behaviours”. For example, Cafcass state:

“While there is no single definition, [we use] the term alienating behaviours to describe circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviours of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent. It is one of a number of reasons why a child may reject or resist spending time with one parent post-separation.”

How do the courts view parental alienation?

Each case is fact-specific and it is a matter for the court to look at the particular circumstances of a situation and if they regard the term parental alienation to be helpful, to explore why and how it applies to that particular situation and after this, to determine what the outcome should be.

On occasions, there can be an instruction of an expert to assess the impact of parental alienation on that particular case, if the court does deem such an instruction as necessary. Alternatively, or in combination with an expert report, there can be welfare reports from social services and/or Cafcass and this can also consider issues relating to parental alienation.

Today’s Family Lawyer has previously heard that “false counterarguments of parental alienation might be used by one parent in order to shift the focus from the allegations that are being made against them, particularly in cases where domestic, emotional or psychological abuse have been alleged”. How can such a sensitive and complex area be navigated?

Family law is a complex area of the law and there can be a number of counter-arguments raised in a case for a number of reasons.

For example, one parent may allege that they have experienced domestic abuse or any other harm and the other parent may raise “parental alienation” as suggested in the question. The court is equipped to deal with counter-allegations where it is relevant to the welfare of the children.

It is important to look at the whole picture. There have been a number of high profile cases considering such issues and the relevant law/guidance. Upon counter-allegations being raised, it is essential that the factual matrix is determined before final welfare decisions are made. In this context, the court may direct for there to be a fact-finding hearing where certain allegations are considered. Upon findings being made, i.e. the judge determining the truth in the allegations, then the court can proceed to look at the impact of the findings for the case generally. Of course, as each case is fact specific, there can be varying degrees of harm in existence and varying degrees of issues / allegations that may need determining.

How can we learn more about how parental alienation is dealt with in the family courts?

Parental alienation has been a hot topic for a while and has featured in the media recently when considering the use of experts in cases. There has been a number of family law cases published that has considered the concept and I imagine there will be more cases published in this area.