Although parental alienation was first recognised by Wallerstein and Kelly in 1976, the concept gained controversy when Gardner suggested that parental alienation is actually a mental condition suffered by children who had been alienated by their mothers. Subsequently, parental alienation became a term which was rejected by English and Welsh courts.
However, the idea that parental alienation is a syndrome is outdated. Hence, English and Welsh courts now embrace a more nuanced approach to parental alienation and it is not such an alien concept.
Cafcass previously recognised parental alienation to be “when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent”.
This definition was accepted by the Court of Appeal in Re S (Parental Alienation: Cult: Transfer of Primary Care) . Since then, however, Cafcass and Cafcass Cymru have begun using the term “alienating behaviours” to describe “circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviors of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent”, although it accepts there to be no single definition.
Whilst the lack of a universal definition of parental alienation comes as no surprise therefore in England and Wales, in Ireland, Judges are being warned against using the term “parental alienation” in proceedings following the publishing of Department of Justice research which has found that Irish Judges are not using an agreed definition of the term.
In contrast to the focus on the use of experts in England and Wales, key concerns reported from the Irish Legal System include the scientific data – or lack thereof – and the gendered nature of the concept. It also suggested that this lack of definition is a trend which can be observed internationally.
In the Courts of England and Wales, the case of Re C (‘Parental Alienation’; Instruction of Expert)  EWHC 345 (Fam) brought back into focus the parental alienation “industry”, in its consideration of the use of unchartered and unregulated “psychologists” being called as experts on parental alienation.
Critics have highlighted the propensity of parental alienation to be used as a disingenuous tool to rebut allegations of domestic abuse and manipulate proceedings. This concern is entrenched by the prospect of so-called experts assisting the court who are neither a Chartered Member of the British Psychological Society (BPS) nor otherwise registered.
Subsequently, MPs are now calling for an inquiry into the effect of alienation claims on the family courts and more importantly, the children and families whom they impact the most.
However, in Re C, the court referred to the argument of the Association of Clinical Psychologists UK, highlighting that “the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist.” Hence, this may go some way to curtailing concerns with regards to experts, given that the court of course has the ultimate say.
Evidently, parental alienation is not such an alien concept in the Courts of England and Wales and has been approached with a level of nuance and flexibility.
However, there remains a clear need for caution. It would appear that findings from the Department of Justice Research appear more critical to the concept of parental alienation at its core. Conversely, the current position of the English courts is that it is precisely the judiciary’s place to make findings on parental alienation. Nevertheless, current discourse arising from both the Irish and English and Welsh legal system highlights that parental alienation is still a concept which requires some clarification.
Joy Elson is a student at the University of Law