Eysha Gill - University of Law
To what extent do parental alienation claims affect child arrangements cases in the United Kingdom?
Parental alienation, where one parent claims that the other has, by manipulation, ‘alienated’ their child, has in recent years taken prominence in family proceedings. This is particularly prevalent, and poses significant issues, where the parent alleging alienation is accused of domestic abuse by the ‘alienating’ parent. This essay will explore the ramifications of parental alienation where the alienated parent has been accused of domestic abuse, within the context of child arrangements proceedings. Discussion will include the extent to which domestic abuse and the wishes of the child are sidelined by an allegation of parental alienation. Finally, possible paths forward will be considered.
What is parental alienation?
Before we begin to discuss the effect of a claim for parental alienation, we must first set out what a parental alienation claim entails. Thought to have derived from Richard Gardner’s theory of Parental Alienation Syndrome, where a child is manipulated by one parent to denigrate the other, a claim of parental alienation essentially involves an allegation that a hostile parent has exerted influence to alienate the child from the other parent. A claim of parental alienation does not centre on the alienating parent, rather, it is the result of their behaviour on the child, who becomes isolated from the parent bringing the claim.
Cafcass (the Children and Family Court Advisory and Support Service), states that ‘there is no single definition of ‘alienating behaviours’. We use the term to describe behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.’
It is significant that there is no legally-recognised definition for parental alienation, nor any legislation dealing specifically with the issue. In child arrangement disputes, the court will intervene only when parental alienation is seen to damage the child’s welfare, in accordance with the Children Act 1989.
The law on child arrangements
It may be necessary to briefly set out the court’s approach to child arrangement disputes. Previously known as residence or contact orders under section 8 of the 1989 Act, replaced in 2014 by the Children and Families Act 2015 with the neutral term ‘Child Arrangement Orders’, these orders regulate who the child is to live with and spend time with. Under section 1(1) of the 1989 Act, the welfare of the child is “the court’s paramount consideration”. When making child arrangement orders, the court is required to make the order that best promotes the child’s welfare, or best interests, with section 1(3) containing the ‘welfare checklist’ for the court to have regard to in making this decision.
Of particular importance is the presumption of parental involvement under section 1(2A), where the court will “presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. Although no specific reference is made to parental alienation in the welfare checklist, this presumption favouring the involvement of both parents in the child’s life appears to lend weight to a claim of parental alienation, as parental alienation concerns the lack of involvement of the alienated parent in the child’s life, which, by virtue of section 2A, is presumed to be against the child’s welfare.
Domestic abuse and child arrangement orders
The court’s paramount consideration in determining whether a child arrangements order should be made, and its terms, is the welfare of the child. Domestic abuse is thus not an automatic bar on the court making a ‘live with’ or ‘spend time with’ order. Where abuse does not appear to the court as causing harm to the child, an alleged abuser may be awarded contact with their child. Even where a finding of domestic abuse is proven, if violence is confined to the parent, a child arrangements order in the abuser’s favour may still be granted.
Of crucial importance is that domestic abuse is notoriously difficult to prove. The law operates on a binary nature; a fact must be proven or disproven, and the burden lies on the party making the allegation to prove the abuse on the balance of probabilities. Domestic abuse is proven in fact-finding hearings, where each account of abuse is considered and must be proven discreetly. It has been argued that this method compounds the burden on an abuse victim’s shoulders to prove individual instances of abuse, and fails to take into account the broader nature of some forms of abuse, such as coercive control.
This form of proceedings often facilitates a culture of victim-blaming within the family courts, where the victim is portrayed as vindictive, compared to the alleged abuser, who is seen as committed to the family. Victim blaming within the family justice system has been worsened with the introduction of parental alienation, which commonly undermines domestic abuse allegations.
‘The implacably hostile mother’ and the gendered dimension of parental alienation
Parental alienation necessarily involves a parent alleging hostility, and manipulation of the child, on the part of the other. Gilmore argues that the notion of ‘the implacably hostile parent’ entails “a significant gender dimension, with the debate mostly focusing on the implacably hostile “mother”, the child’s mother being most often the resident parent post-separation”.
Parental alienation claims are often gendered, many feminists attack the concept as being used commonly by fathers against mothers, in particular, as a response to domestic abuse allegations. Statistical figures appear to support this criticism: In the United States, a study found that when fathers cross-claim alienation, courts are more than twice as likely to disbelieve mother’s claims of abuse, in fact, courts are 3.9 times more likely to disbelieve mother’s claims of child abuse than if fathers made no alienation claim. Notably, when parental alienation claims are gender-reversed, the same is not true. The study found that fathers do not see a significant reduction in crediting their abuse claims when mothers cross-claim alienation. It thus crucial, when discussing parental alienation claims, to recognise and account for this inherently gendered dimension.
Where does this gendered aspect stem from? It has been suggested that it derives from the roots of gender inequality, to Parental Alienation Syndrome (PAS), accredited to Gardner, who framed the issue as vindictive mothers making false allegations against an innocent father. This may have led to a culture of victim blaming, with the mother framed as hostile and irrational in denying the child contact with a father, contrasted to the ‘family man’ father simply wishing to maintain a relationship with the child. PAS espouses misogynistic and outdated views on spousal relations, and glosses over what may be a real case of domestic abuse, where a mother simply wishes to protect her child.
Father’s rights movements, such as Fathers4Justice, have exacerbated this gendered debate. Under the guise of equality for fathers, many such groups promote making use of parental alienation as a weapon against the ‘hostile’ mother.
The domination of parental alienation claims ‘to the exclusion of all else’
When making child arrangement orders, the courts do not take domestic abuse into account, unless this is seen to affect the child’s welfare. In contrast, parental alienation claims have remarkable effects within this context.
In tracing a timeline of parental alienation within family law, Barnett identifies 2002-2004 as the beginning of the courts accepting parental alienation claims. It is highly significant that many of these cases involved allegations of domestic abuse. In Re M (Intractable Contact Dispute: Interim Care Order), the first case in which the residence of the child was transferred to the father, there were unresolved allegations of domestic abuse made by the mother against the father. Despite the welfare of the child being of paramount consideration, parental alienation appears to detract from this principle, operating to place a child with a potentially abusive father.
Of course, it cannot be said that parental alienation allegations are always without merit; One can conceivably imagine circumstances where one parent has unjustifiably attempted to destroy a child’s relationship with the other. In Re S (Parental Alienation: Cult), the mother was involved in the controversial Universal Medical cult, and the court found that if this continued, the relationship between father and daughter, previously one of love and affection, would terminate. In consequence, the court granted a ‘live with’ order in favour of the father, reasoning that any short-term harm to the child as a result of living with her father against her wishes would be outweighed by the long-term welfare benefits in having a strong father-daughter relationship. It is likely that the onlooker would agree with this order, given the mother’s cult connection, and recognising the importance of the child continuing the relationship with the father.
However, in a majority of cases where parental alienation is alleged, there may be no justification for the claim. The most common case in which parental alienation arises is in response to a claim of domestic abuse. Where domestic abuse is alleged in a child arrangements dispute, discussion should centre on the welfare of the child, as there is a risk of allowing the child contact with an abusive parent.
In a study conducted by Women’s Aid Federation and Queen Mary University of London, it was found that parental alienation claims are frequently used in child arrangement proceedings to undermine allegations of domestic abuse, which can lead to serious harm both to an abused parent and a child. Although an important limitation of the study should be recognised, in that the survey did not distinguish between mere allegations and proven instances of domestic abuse, it nevertheless highlights the issue that a child is at risk of being placed with or spending time with a potential abusive parent. Contact with an abusive parent can have detrimental effects, both to the child’s wellbeing, and the abuse victim, as an abusive partner may use the child to inflict further harm on the other parent. Framed in this perspective, allowing a child to be placed with a potential abuser becomes sinister.
This is not to say that any parent making a parental alienation allegation as a response to abuse claims should be disbelieved, or automatically barred from child arrangement orders in their favour. Rather, where domestic violence is alleged, a proper investigation should be made into the abuse, rather than simply attributing this to a vengeful spirit of the mother. The issue with parental alienation is that it is used to illegitimately undermine domestic abuse claims within the context of child arrangements. As Barnett describes, “even very serious proven or admitted violence could be minimised and the case reconstructed as one of an implacably hostile, alienating mother”. This raises serious concerns about how parental alienation claims influence child arrangements disputes. Aptly described by Barnett, “raising PA dominates cases to the exclusion of all else. The complex and complicated lives, emotions and circumstances of the mothers, fathers and children who come before the family courts are reduced to stark binaries of good and bad, deserving and undeserving”.
The wishes and feelings of the child?
The notion that parental alienation exclude all else may lead to a further detriment in child arrangement hearings, when we consider the wishes and feelings of the child, explicitly part of the welfare checklist that the court must have regard to. Parental alienation allows the court to disregard the wishes of the child. Framed as being manipulated by the jealous parent, the child’s wishes will be seen by the court as unreliable, and will not be taken into account when determining the child’s welfare needs.
As Barnett notes, “one of the most worrying aspects of PA is its refusal to accept children’s views as their own, unless, of course, children want contact with their fathers, in which case their views are readily accepted”. Stemming from the presumption of contact, and likely strengthened by pervasive misogynistic views about the ‘hostile mother’ that parental alienation encourages, objections of the child himself would not be an impediment to the court granting a child arrangements order in the ‘alienated’ parent’s favour.
This becomes a concern when we consider that the child’s welfare is of paramount importance, as parental alienation claims undermine discussion on the child’s wishes and feelings. Although the basis behind this is that the child’s wishes are “distorted by the prism of alienation”, to the point where they no longer provide an accurate portrayal of the child’s legitimate wishes, this risks the real possibility that a child’s legitimate wishes against the alienated parent, untouched by any manipulation, will be disregarded within child arrangements proceedings. Particularly when the alienated parent has been accused of domestic abuse, careful consideration should be made before disregarding a child’s clear opinion that he does not wish to reside with or contract that parent. Failure to do so may be against the best interests of the child, who is placed with a parent after explicitly expressing a desire against this, and potentially placing the child himself at risk.
The courts are aware, when making child arrangements orders in favour of the alienated parent, as in Re S, that a transfer of residence may cause “short-term harm and distress for the child as a result of moving into the father’s care”, but this is ultimately outweighed by the “foundations of a positive and beneficial relationship between the child and her father”17. Harm from terminating the child’s relationship with her father was seen to outweigh the harm of going against the child’s clearly expressed wishes of estrangement.
It is profound that an allegation of parental alienation has the effect of minimising or entirely dismissing wishes of the child, expressly forming part of the welfare considerations in statute. This has implications for assessing children’s welfare in child arrangements disputes, and carries a real danger that a child’s legitimate feelings will be dismissed as a result of a parental alienation claim.
Where are we now?
Recent cases indicate the court’s growing awareness of the potential dangers parental alienation claims pose. In AB v CD, Moor J appeared to discredit the term, stating that “Father’s allegation of “parental alienation” of S against him by the Mother should actually be referred to as an allegation that the Mother has undermined contact, given that there is such contention around the concept of “parental alienation”. In the case, no parental alienation was found, rather, it was held that the child had picked up on the distress of the Mother. In the circumstances, the Father could not “blame” the Mother. The explicit use of “blame” may signal a shift in the courts’ attitude, away from victim-blaming, towards an objective view of parental alienation that recognises its capacity to shift blame onto the victim.
In Warwickshire CC v Mother, the court criticised parental alienation as a label, for being general and unhelpful in nature, serving only to aggravate conflict and a binary view of one parent in the right with the other in the wrong. The central focus for the court in such disputes is the welfare of the child. The recognition that parental alienation heightens tension between parents and does not lead to the best outcome for children is a welcome judgement. The most important focus for the court in such disputes is, and should continue to be, the welfare of the child.
A way forward?
Family law in recent years has seen the introduction of parental alienation, its acceptance by the courts, and most recently a growing awareness of its nefarious use to undermine the child’s welfare and domestic abuse allegations. Where should the law go from here?
The most obvious solution seems to be to firmly reject all claims of parental alienation. Recognising that the term may still be useful in certain cases however, as in Re S, Meier suggests adjusting alienation claims so that it is “constrained so as to avoid its misuse in abuse cases while exploring its legitimate contours in non-abuse cases”. Parental alienation claims are not entirely unfounded, it is only when it is misused to silence domestic abuse allegations, or undermine the child’s wishes, that the claim should be rejected by the courts.
An alternative way forward may be to abolish the contact presumption, arguably a major aggravator of parental alienation’s misuse. Kaganas is a vocal proponent of this, arguing that “As long as the courts and many of the professions involved in contact disputes subscribe to the view that contact is almost always in the child’s best interests, the legitimate concerns of resident mothers will continue to be sidelined. And as long as the prevailing belief is that courts can make contact ‘work’, resistance will simply be met with intensified intervention. Many mothers and children are likely to be worse off as a result”. Whilst abolishing the contact presumption may remedy domestic abuse claims being undermined, it seems to fail addressing the gendered issue underpinning parental alienation as a concept, and how it is misused to the disadvantage of women.
It is clear at least that discussion should be held on assessing children’s welfare, and how parental alienation may prove useful in protecting child welfare, yet at the same time carry considerable potential to detract from it.
Conclusion
Parental alienation claims have carried much controversy in recent years. Within the context of child arrangement orders, feminists argue that its inherently gendered nature operates to undermine a mother’s claim of domestic violence and overshadow the wishes of the child, detracting from the paramount question of child welfare. While parental alienation may in some cases be founded on legitimate concerns, the concept carries clear potential for illegitimate use by a parent, and the courts’ recent wariness of the term appears to highlight a growing realisation of this.
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Bibliography
2 Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 A.C. 11, Lord Hoffmann at [2].
3 Barnett, “’Greater than the mere sum of its parts’: coercive control and the question of proof” [2017] CFLQ 379
4 Gilmore,‘Justice and implacable hostility to contact: parental beliefs, factual foundation and justification’ (2020) Law Quarterly Review 136, 99
5 Meier, ‘U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?’, (2020) Journal of Social Welfare and Family Law,7
7 Barnett (2020) ‘A genealogy of hostility: parental alienation in England and Wales’ (2020) Journal of Social Welfare and Family Law 18, 29
8 Barnett (2020) ‘A genealogy of hostility: parental alienation in England and Wales’ (2020) Journal of Social Welfare and Family Law 18, 20
9 [2003] EWHC 1024 (Fam)
10 [2020] EWHC 1940 (Fam)
11 Birchall, & Choudhry, ‘I was punished for telling the truth’: how allegations of parental alienation are used to silence, sideline and disempower survivors of domestic abuse in family law proceedings’ (2022) Journal of Gender-Based Violence, 6(1), 115
13 Barnett (2020) ‘A genealogy of hostility: parental alienation in England and Wales’ (2020) Journal of Social Welfare and Family Law 18, 26
14 Children Act 1989, section 1(3)(a)
15 Barnett (2020) ‘A genealogy of hostility: parental alienation in England and Wales’ (2020) Journal of Social Welfare and Family Law 18, 30
16 [2003] EWHC 1024 (Fam), [63]
17 [2003] EWHC 1024 (Fam), [68]
18 [2023] EWFC 165, [18]
19 [2023] EWFC 165, [78]
20 [2023] EWHC 399 (Fam)
21 Meier, ‘U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?’, (2020) Journal of Social Welfare and Family Law, 12
22 Kaganas (2010) Current Legal Problems 63,
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