What is Parental Alienation?
This is a highly controversial and topical issue and you are likely to have come across the term of Parental Alienation in your online searches around children disputes in the Family Court. There is no commonly agreed or authoritative definition of Parental Alienation, but in effect it is a term applied in cases where the resident parent is psychologically or emotionally manipulating a child against the non-resident parent, which can be done either deliberately or unwittingly.
So, in other words, this can relate to a situation where the child is expressing an overly negative view about the non-resident parent or is otherwise stating that they do not want to see that parent.
It is not unusual, especially where there has been a messy separation/divorce, for the parent and their wider family/support network to hold a negative view of the other parent. The child can often pick up on that parental conflict. Although this is unfortunate, it is the reality for most, if not all, cases that go to the Family Court. However, it is important to distinguish between those cases and cases involving genuine Parental Alienation which has a much more serious, negative impact on the child.
I thought the law said that a child’s voice should be heard and that their wishes and feelings are important?
This is correct. The law states that the court should base its decision on what it considers to be in the particular child’s best interests before them (sometimes referred to by lawyers and Judges as the ‘paramountcy principle’ – i.e. that the child’s welfare is paramount). The law expressly states that one factor that a Judge must consider when determining what is in a child’s best interests is the ascertainable wishes and feelings of that child with reference to their age, understanding and maturity.
However, the issue of Parental Alienation relates to something more complex in the form of a psychological or emotional manipulation of the child by an adult.
Why is Parental Alienation such a controversial issue and what can the court do about it?
There has been a significant sea change over the past 10 years or so with Judges, CAFCASS and family lawyers having a much greater understanding and awareness of the emotional harm that Parental Alienation can cause a child. It is no longer sufficient in most cases to say that a child has said that they do not wish to see the other parent and leave it as that – the court now is likely to be concerned if a child is apparently expressing that wish in a case where there are no safeguarding risks posed by the other parent, and the court will invariably want to explore the child’s reluctance to attend contact.
If the court finds alienating behaviours and the ‘alienating parent’ does not address or change their behaviour then the court may well conclude that it is in the child’s best interests to order a change of residence with the child being removed from the ‘alienating parent’s’ care and into the care of the other parent. It is important to stress that this is not ‘the norm’ and the threshold for a change of residence is a relatively high one for understandable reasons, but the Family Court is increasingly considering the ‘unclear option’ of a change of residence in circumstances where the ‘alienating parent’ either refuses or is unable to change their behaviour. The rationale for a change of residence in these circumstances is that the child is suffering emotional harm by way of the Parental Alienation and that the only option available to the court to ensure that a child can have a meaningful relationship and contact with both parents is to live with the ‘non-alienating parent’.
Whilst this greater awareness and understanding of Parental Alienation is no doubt a good thing, it is also important that caution is taken when approaching this subject. I find that all too often parents will read about Parental Alienation online and then self-diagnose their own case and push the Parental Alienation label in court when perhaps the situation or child’s wishes are not in fact influenced or caused by ‘alienating behaviours’ from the other parent. It is very important to take care over this subject because, if the court finds that there is no basis behind the strongly stated case put forwards of Parental Alienation from the other parent, then the court may be critical and take the view that the non-resident parent lacks understanding or insight into the real issues with the case and child.
So if you consider there to be Parental Alienation in your family then my advice is to be careful and seek advice from a specialist solicitor prior to preparing any court application.
I represent both resident parents accused of Parental Alienation as well as non-resident parents who are experiencing the negative effects of Parental Alienation (it is not as straightforward as saying that this is a mother v father issue). It is important to understand both the impact on the non-resident parent and child in genuine Parental Alienation cases but, equally, it is also important to understand the impact on the resident parent and child in cases where a false allegation is being made of Parental Alienation.
How does the court approach cases involving Parental Alienation?
As outlined above, the court’s recognise that Parental Alienation is a serious issue which causes the child emotional harm. The court can go as far as ordering a change of residence as the last available option in order to ensure that a child is allowed and able to have a relationship and contact with both parents.
In complex cases where Parental Alienation is in play, the court may decide to appoint an expert such as a psychologist to assess the family and to provide an expert opinion to the court.
However, it is important to stress that the court does not look to see whether there is a syndrome of Parental Alienation in a parent or not. The President of the Family Division, who is the most senior family law Judge in England & Wales, has recently confirmed in a High Court case that the correct approach for the court to take is to look at and consider the actual alienating behaviours alleged by a parent and to make a factual determination on whether and to what extent those alienating behaviours have happened or not, and their impact on the child.
It is for this reason that I have intentionally used speech marks and italics throughout this article when referring to Parental Alienation. Parental Alienation is not a condition or syndrome which is capable of being diagnosed. Instead, the court looks at and approaches this issue as a factual matter. Whilst parents will often use the label Parental Alienation from their cursory online searches around this subject, the correct approach is to consider and concentrate as a matter of fact whether a parent has alienated a child or not, exploring the specific allegations being made and their effect on the child. This is the approach that the court and CAFCASS have taken for some time now in these cases and the above recent High Court case merely confirmed the law and made the law clear for all those involved in the family justice system.
The focus of the court will be on the specific ‘alienating behaviours’ that are being alleged and, if found, the impact they have had on your child. The court is not interested in finding and applying the label Parental Alienation. For the above reasons I find the label of Parental Alienation unhelpful in these complex cases. It is important that parents understand these issues and the law before embarking on court proceedings and before seeking to pursue or argue that the other parent is alienating the child.