Parental alienation cases

Parental alienation cases are amongst the most complex and difficult for practitioners and the courts to deal with. The impact of parental alienation itself, and the decisions made by the court as a result, is
life-changing for both children and parents.

Whilst this area of law is very broad indeed, this column is intended to provide some key pointers.

Identifying parental alienation

Early identification is crucial. If parental alienation is not identified at an early stage, then by the time it is dealt with, it is more likely that significant damage will already have been done, and the children’s views will have become entrenched. It is therefore important to be alert to early signs of
alienation.

Cafcass has defined parental alienation as, "When a child’s resistance / hostility towards one parent is not justified and is the result of psychological manipulation by the other parent." This definition has received recent approval from the Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263, who added to it that the manipulation of the child need not be malicious or even deliberate. It is the process that matters, and not the motive, though the alienating parent’s motive is important and can inform the court’s decision.

It is also important to remember that the reported cases depict parental alienation carried out by mothers and fathers. It is not unique to the parent with primary care (if there is a primary carer).

Signs that alienation is present include:

• one parent portraying the other negatively;
  
  
• one parent suggesting that the other parent does not love the child;one
  
  
• parent providing unnecessary reassurance to the child about time with
  the other parent;
  
  
• one parent contacting the child excessively when with the other parent;
  
  
• one parent making unfounded allegations or insinuations against the other parent.

Seek an early fact finding hearing

If the children are being alienated, then the longer that is allowed to continue, (a) the longer the emotionally abusive situation for the children will continue and (b) the more difficult it will be for the damage caused to be "undone". An early fact finding hearing should therefore be listed to ascertain whether the allegations made are true, on the balance of probabilities. The burden of
proof lays with the person seeking the finding.

Get the right professionals involved in the case at an early stage

An order under s 7 of the Children Act 1989 for a welfare report to be prepared should only be made after the fact-finding hearing has taken place. Without a fact-finding hearing, those who may be called upon to advise the court regarding the children’s welfare, whether a Cafcass officer, independent social worker or guardian, have no factual bedrock from which to work. It is typical for parental alienation cases to involve serious allegations against the
alienated parent, and for the children to be reporting in strong terms that they do not wish to see the alienated parent. Without a proper assessment of the truth or otherwise of those allegations, it is difficult for safeguarding professionals to come to any conclusions.

In addition to a s 7 report, other expert evidence may be of benefit. It may also be necessary for a parent and / or child to undergo psychotherapeutic treatment and intervention.

Professionals involved must have experience in dealing with alienation. Too many experts is not helpful, but if multiple professionals are involved, it is important to ensure they are working collaboratively at all times.

Assessing the child’s wishes and feelings

There is an obvious difficulty in how to approach children’s wishes and feelings in an alienation case. The expressed views of the child, however firm they appear, are likely to be those of the alienating parent, rather than the child’s own.

The checklist at s 1 of the Children Act 1989 requires the court to have regard not to the expressed wishes of the child, but to her ascertainable wishes and feelings considered in the light of her age and understanding.  Simply reporting what the children say, without any exploration into how and why they are saying it, has been described as superficial and naïve (see Re A
(children: parental alienation) [2019] 9 WLUK 445.

The court is likely to be heavily reliant upon the astute observations of the instructed expert who will be able to navigate the responses of the child and give better understanding as to their context.

Joining the children to the proceedings

Joining the children so that they are represented by a guardian, pursuant to
r 16.4, should not be delayed where necessary. Practice Direction 16A sets out guidance on circumstances which may justify making the child a party, and this includes ‘where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational or implacable hostility to contact or where the child may be suffering harm associated with the contact dispute’.

The court’s approach

The court has a positive duty promote contact. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy ordered by the court will depend upon an assessment of all aspects of the child’s welfare, and not merely those that concern the relationship that may be under threat.

The court must consider the evidence, not to determine who is the "guilty" party but to determine how the interests of the children can best be met; the child’s welfare is paramount.

If conclusions are drawn regarding the parents’ behaviour, the court’s first
inclination will be to reason with parents and seek to persuade them to take the right course for their child’s sake; it will only make orders when it is better than not to do so. If an order is required, the court can change a child’s living arrangements, so that they move from one parents' home to the other, and cases have increasingly demonstrated the courts’ willingness to do this in recent years. The Court of Appeal in Re S (above) made clear that this is not "a last resort". The judge must consider all the circumstances and choose the best welfare solution.

In that case, the Court of Appeal also made plain that these cases do call for judicial resolve; the line of least resistance is likely to be less stressful for the child and for the court in the short term, but does not represent a solution to the problem.

Implementation of final orders

It may be that a suspended order that a child moves to live with the alienated parent if contact arrangements are not complied with is sufficient and achieves the desired end and the re-establishment of the relationship with the alienated parent. Equally orders for contact with strict and prompt penalties in the event of breach may also be successful. An alienating parent who can satisfy the court that their alienation was unconscious rather than deliberate, or that if deliberate they have reflected on their behaviour, shown insight, and are now committed to change, may well be given "another chance".

Whether the court transfers residence from one parent to the other, implementation of the order is likely to need careful management, particularly where there has been a long period of estrangement, or in the case of an older child. There is always a risk a child may simply vote with their feet.

One such example, is the case of Re A (Children: parental alienation) (above) in which the judge had made an order that the children should live with their father for a period of just over weeks on the basis that they would not see their mother during that period. The handover went badly wrong; the children were extremely distressed and resistant to the attempts to place them with the father. They ran away from their father several times, refused to eat and exhibited extreme distress. They returned to their mother less than a month after the hearing and had remained there since with the father having no more contact. The court found that the plan for the transfer of the children to the father involved an underestimate of the likely reaction of the children. Also of concern was the absence of full and careful discussion with the children’s schools, notwithstanding that the transfers took place there.

It is therefore clear that, even when the court has made the orders sought by the alienated parent, that is not necessarily enough. A carefully thought out plan must be made, with the involvement of all the professionals in the case, to ensure that the order is successfully implemented and the children’s relationship with the alienated parent repaired.

The loss of the relationship with one parent can cause significant emotional harm to a child. It can have an impact on their long-term mental health, can cause low self-esteem, and can also cause problems in the child’s own adult relationships in the future. There is also the risk that, at some point in the future, they will discover what the alienating parent has done, resulting in harm to that relationship also and potential estrangement from both parents. These cases provide a great many challenges for practitioners; there are no easy answers. Ensuring that steps are taken promptly gives the best possible chance that the issues can be fully considered at an early stage and resolved for the benefit of the children concerned.

Please note this content was originally published by The Law Society Gazette in the Family Law legal update section of the 22 April 2022 edition see here.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2022