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11 December 2019 0 Comments
Posted in Family, Life, Opinion

Parental alienation: how is it treated in court and what can be done to spot it?

Posted by , Trainee Solicitor

Parental alienation is undoubtedly a hot topic. At the recent Oxford Local Family Justice Board conference, a large portion of the day was dedicated to the psychological perspective on this controversial issue, as well as recent case law relating to how it is treated by the judiciary.

However, what came out of that event was that there are many different theories surrounding parental alienation, and therefore as many ways for it to be viewed within the Court system. Here we examine a few of these, and look at how the Children and Family Court Advisory and Support Service (CAFCASS) is hoping to make parental alienation easier to identify and handle.

The theory

Parental alienation is a term coined by child psychiatrist Richard Gardner in 1985, derived from a set of behaviours he identified as forming Parental Alienation Syndrome (PAS). PAS, he theorised, was a set of symptoms which he believed could only co-exist if a parent had engaged in alienating behaviour. The eight behaviours he believed children might exhibit are:

  • denigration of the alienated parent
  • frivolous rationalisation of their complaint
  • a lack of ambivalence regarding their feelings towards the alienated parent
  • going out of their way to point out that their ideas are their own
  • automatic support of the alienating parent
  • an absence of guilt
  • borrowing scenarios as described to them by the alienating parent
  • spreading animosity to the extended family of the alienated parent.

While PAS has not been accepted as a diagnosable condition that can be used as part of children disputes, it has led to the recognition of parental alienation as a set of behaviours exhibited by some parents who, whether deliberately or not, allow their negative emotions regarding their ex-partner to influence the views of the children. This alienating behaviour can then lead to children exhibiting similar behaviours to those described by Gardner. However, because of its complex standing within the field of psychiatry, parental alienation in itself is a phrase that Family Law practitioners tend to avoid in order to prevent any unnecessary conflict.

At the conference, Dr Peter Misch suggested that parental alienation is best tackled in children as though it were a phobia of the alienated parent. Often, exposure to that parent, in the form of uninterrupted contact with them, can be highly effective in reversing the effects of alienation relatively quickly, albeit with some interim distress caused to the child.

Dr Misch also emphasised that parental alienation is often not simply an issue of one parent bad-mouthing the other to the child, but of the conduct of both parents. Justified parental estrangement can also form part of parental alienation if, for example, the child feels abandoned by the leaving parent or has been in any way abused or harmed. Further, alienation need not be direct denigration or undermining of one parent by the other, but can occur simply where one parent fails to support time with the other parent, or does not attempt to correct the child’s negative attitude towards them.

It is clear that parental alienation presents a legal minefield in terms of how it should be approached by the Court.

For example, in the recent case of Re H (Parental Alienation), it was determined that facilitating contact with the alienated father while the twelve-year-old was still living with the mother would be ineffectual at best, as the mother would be incapable of encouraging any such arrangement. The Judge therefore ordered that the twelve-year-old was to live with his father and spend time with his mother after three months, despite the trauma the child was likely to suffer short term.

On the other hand, the case of Re A (Parental Alienation) ended with the withdrawal of court proceedings that had lasted eight years regarding three children who had been alienated from their father by their mother. Due to procedural delays and a failure by experts to recognise parental alienation at an early stage in proceedings, the children’s view of the father had become too entrenched, and any attempt to transfer residence at this stage would no longer be in the children’s best interests.

CAFCASS

In response to the knotty problem of parental alienation, CAFCASS developed what they refer to as the Child Impact Assessment Framework (CIAF) in 2018, which is a set of tools and guides for Family Court Advisers (FCAs) to be able to answer the open question ‘what is happening for this child?’ in the course of proceedings. This moves the focus in safeguarding children away from looking for specific behaviours in parents and children to looking at how alienating behaviours impact an individual child in the context of causing them harm overall.

The legal blog “The Transparency Project”, which aims to make family justice clearer, have remarked that they are pleased that “CAFCASS has moved away from any suggestion that parental alienation is endemic, a problem that social workers should be commonly identifying, labelling and making decisions about”, representing a change in the approach in the treatment of alienation.

It remains to be seen what impact the new framework will have on alienation case law but this certainly represents a change in the approach in the treatment of alienation. The CIAF looks at it in a more global context of harmful behaviours for children going through parental separation, and allows FCAs to make more comprehensive decisions about which guidance to apply to particular cases.

Conclusion

There is no doubt that parental alienation can have far-reaching consequences for the children who are exposed to the negative behaviour of their parents, not to mention the alienated parent who may have to face the fact that the child’s attitude towards them is now so entrenched that contact is no longer viable. Nonetheless, CAFCASS’ new wide-ranging approach to tackling the problem is encouraging. It is to be hoped that with greater knowledge and understanding of this behaviour more can be done to highlight parental alienation early in proceedings before it becomes irreversible.

For any enquiries, please contact Paola Cuffolo on:

01865 792 300     Email uspaola.cuffolo@roydswithyking.com

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