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Vardags Family Law Essay competition 2023/24 | Hermione Baldwin

Hermione Baldwin - University of York

To what extent does parental alienation serve in the best interests of the child in custody battles?

This essay will present the argument that parental alienation is fundamentally flawed and is unfit to serve in the best interests of the child during custody battles, other than in exceptional circumstances. Parental alienation lacks a legal definition which, in itself, presents a serious problem for the understanding of the principle, presenting the question of whether it should be applied in court at all. For the purpose of this essay attention will be drawn to Section 57 of the Domestic Abuse Act 2021 Explanatory Notes where the foundations of parental alienation see the most similarities as to class parental alienation as a form of domestic abuse. The essay will evaluate the following points: firstly, the argument that parental alienation can be used by perpetrators of domestic abuse as a defence, to conclude that judges appear to take notice of this defence; secondly, how parental alienation is measured, to conclude that the ambiguity of parental alienation means the childs wishes are not adhered to; thirdly, how parental alienation is treated differently to other domestic abuse allegations, to conclude that parental alienation should be separated in court. The essay will, overall, conclude that parental alienation is given unjustified weight in allegations of domestic abuse. This essay proposes that allegations of parental alienation should be held to the same burden of proof as domestic abuse and not to assume that where domestic abuse is not supported by empirical evidence the parent is alienating the child, claims of domestic abuse should be treated the same. It should not be the sole decision of a case-hardened person to determine that a child should be placed with a parent whom they may not feel comfortable with for pro-longed periods of time.

Parental alienation as a defence.

This section will evaluate the argument that allegations of parental alienation can be used as a defence by perpetrators of domestic abuse causing victims of domestic abuse to lose custody battles and place the children in harmful environments. This section will conclude that allegations of parental alienation can cause more harm to the child, where the court could place more importance on Child Arrangement Orders to promote contact between the child and the non-residing parent. In a report written by the Commissioner of Domestic Abuse it is highlighted that the court has a lack of understanding of domestic abuse in family court which can lead to an increase of harm to the child as allegations of parental alienation can mean children are placed under unsafe orders by the court. Due to this lack of understanding it can be inferred that where the judge does not fully believe the victim of domestic abuse, they automatically assume that the victim is alienating the children from the other parent. This has been described as a clear inequality in the court room with parental rights outweighing the allegations of domestic abuse, this is supported by Birchall and Choudhry. They argue that even when the mother has not been expressly accused of parental alienation, the fear that raising allegations of domestic abuse will cause the perpetrator to raise parental alienation claims, and win. The weakness of this source is its bias, it must be noted that not only women are exposed to domestic abuse and that men can be, for no legitimate reason, alienated from their children.

To critique the argument that judges lack understanding, it could be argued that rather than them having a bias perception, they are following the legislation given to them. In 2014 the Children and Family Act amended Section 1 of the Children Act 1989 to place importance on the child having contact with both parents after separation. Therefore, it can be inferred that the issue may stem from there not being enough legislative backing to support victims of domestic abuse in family court proceedings rather than independent judges using their personal perception in favouring those alleging parental alienation. Despite this, the argument of this essay still stands that the use of parental alienation cannot claim to support the best interests of the child. In an article by Proudman, emphasis is given to a Channel 4 documentary which demonstrates children being forcibly removed from their homes to live with the other parent, whom they did not wish to live with following allegations of parental alienation. This is definitely not in the childs best interests. Proudman also draws on cases where even when domestic abuse is proven the court still forces the victim to promote contact between the abuser and the children, with the threat of the children being removed if the victim alienates the abusive parent. This essay argues that the interests of the alienated parent are put before that of the child with the fundamental safety of the child and the victim of domestic abuse withdrawn.

To conclude this section, the uncertainty of parental alienation makes it dangerous, it can deter victims of domestic abuse speaking out and can lead vulnerable children to be placed in harms way. There appears to be a bias towards those accusing parental alienation and not domestic abuse. It also notes that forcibly does not align with the idea that the court listens to the wishes of the child, therefore, the next section will evaluate this and how parental alienation is measured.

The measurement of parental alienation.

This section will evaluate how parental alienation is measured and the guidelines available to CAFCASS in order to determine where the child should be placed. This section will conclude that the principle is unmeasurable, where a child is displaying a hesitation to spend time with one parent it should not be presumed to be parental alienation without empirical evidence to prove the latter. The presumption is not in the childs best interests. CAFCASS has an important role in the family courts, one which can be the swaying influence in child custody arrangements. CAFCASS have guidelines which set out the criteria for parental alienation, as well as the definition which they apply to alienating behaviours: where one parent expresses an ongoing pattern of negative attitudes and communication about the other parent that have a potential or intention to undermine or destroy the childs relationship with their other parent. The issue this essay finds with this definition is that providing empirical evidence to prove that there is alienating behaviours is difficult and can only be determined from the views of the child. Part of CAFCASSs role is to listen to the wishes of the child, but this essay argues that it is near impossible to separate the reason behind a childs wishes when it comes to only wanting to have contact with one parent.

Doughty and others raise the issue that CAFCASS in England and Wales place different levels of importance on the childs wishes despite their reports being given under the same jurisdiction when in court. The article proposes that in a lot of cases of parental alienation the child is old enough for their wishes to be taken into consideration but yet there is no set age to which the childs wishes are given the upmost weight. This essay argues that the child is more aware of their wishes than that of a CAFCASS officer, it should never be inferred that the child is being alienated unless all other avenues have been investigated.

Garber supports this argument, he argues that during divorce children develop a chameleon like behaviour and adapt to the parental environment they are in; therefore, their actions may not always result from alienation. In the case referred to by Garber, the child changed their opinion on where they wanted to reside dependent on what parent dropped them off. It can be overall argued that these two articles clearly demonstrate that children are not considered enough in contentions of parental alienation, it is perhaps that children hold more of a key role in the conflict between the parents than is considered in court. If the childs wishes are not being measured, parental alienation is not measurable.

To conclude this section, the most influential argument is that there is great difficulty in measuring the reasons behind a child not wanting to send time with one parent. This essay argues that it is near impossible to determine empirical evidence that suggests that one parent is being alienated by the parent and not the child. Johnston and Sullivan establish the lack of distinction available giving the example of anxious attachment between the parent and the child. They argue that there may be a hesitation to spend time with the other parent either due to the childs anxious attachment to their primary caregiver, or the parents anxious attachment to the child. This essay proposes that to assume that the parent is alienating the child without a measurable system poses a risk of harm to child as CAFCASS hold persuasion in court. CAFCASSs lack of understanding is apparent by the differences in guidelines in England and Wales, something which requires reform.

Parental alienation as domestic abuse.

This section will evaluate the argument that parental alienation is treated as a form of domestic abuse. This section will conclude that the weighting given to parental alienation is much greater than other claims of domestic abuse when deciding the custody of the child, it is concluded that it is not in the childs best interests for the court to place more weight towards parental alienation, but acknowledges the affects that can be had on the alienated parent. Campaigners in support of parental alienation legislation have claimed that not including parental alienation in domestic abuse legislation would have caused serious harm to children and victims of alienation. As such, alienating behaviour is included in the Explanatory Notes of Section 57 of the Domestic Abuse Act 2021 although this essay has established that there is no legal definition for parental alienation the principles of the concept align greatly with these pieces of legislation. Therefore, alienation is considered a form of emotional domestic abuse where the alienator isolates the victim by turning loved ones against them. It is suggested that it is wrong to assume that alienation only happens after separation, whereas the reality is that alienation can occur during a relationship. This essay infers that parental alienation has a primary affect on the alienated parent and a secondary effect on the child in that they lose out on a relationship with their parent.

Allegations of domestic abuse are assessed at a fact-finding hearing where there is a balance of probabilities of the allegations. For all allegations of domestic abuse, the burden of proof is on the person making the allegation to convince the judge that the standard of proof is on their side. It is noted that there is a lower threshold for parental alienation allegations in comparison to other forms of domestic abuse. It can be inferred that the reason for this is when there is not a substantial amount of evidence to prove domestic abuse, the allegations can be deemed by the courts to be proof of alienation and perhaps this demonstrates the aim of the courts to promote a relationship with both parents, placing more importance on the alienated parent. It is this essays stance that although it is evident that there will be negative effects on the alienated parent who is victim to emotional abuse, in order to put the childs interests first there must be key evidence to suggest that placing the child in the alienated parents home under force is beneficial. Doughty and others argue that the evidence surrounding the effects of parental alienation is not empirical evidence, due to samples being small and therefore lacks transferability. This highly links to parental alienation not having a measurable definition.

To conclude this section, it is evident that parental alienation can present itself as emotional domestic abuse and this behaviour is observed in legislation. This essay proposes that the effects on the alienated parent and the child should be separated when evaluated in court. Allegations of domestic abuse should be dealt with equally at the same threshold and the effects on the child should be examined exclusively by an expert such as in the case of Re C. Where there is a lack of empirical evidence to prove that either party have committed domestic abuse, parental alienation should not be considered.

Following these evaluations, it stands that without careful deliberation on the correct legal definition of parental alienation, the principle can cause serious harm for children who are at the centre of contentious custody battles. From the arguments explored in this essay, it is evident that parental alienation is given significantly more weighting than other allegations of domestic abuse even though parental alienation can be used to place children in the custody of those who domestically abuse. It is important to note that parental alienation can have long lasting effects on the relationships of the child and the alienated parent, and in some cases the reason for alienation has no reason other than to be spiteful toward the non-residing parent. Although this essay acknowledges this, it also signifies how difficult it is for a stranger to the child to determine their reluctance to contact as manipulation from the residing parent to that of negative acts towards the child of the non-residing parent. This essay sees little reason why allegations of parental alienation can not be given the same weighting to other allegations of domestic abuse; the interests of the child should be placed above those of the parents and the court should take into consideration the wishes of the children even where they feel parental alienation has occurred. To conclude, the court should place more importance on Child Arrangement Orders as a way of slowly increasing contact with the alienated parent rather than placing them in immediate sole custody as this can create more tension in the relationship and cause serious harm to both the accused parent and the child.

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Bibliography Cases

Re C (Parental Alienation; Instruction of Expert) [2023] EWHC 345 (Fam)

Explanatory Notes

Chapter 6 Children and Families Act 2014 Explanatory Notes

Documentary

Channel 4 Dispatches, Torn Apart Family Courts Uncovered (20 July 2021) date accessed 30/1/24

Journal Articles

Doughty J, Maxwell N and Slater T, Professional responses to parental alienation: research- informed practice (2020) Vol 42 Issue 1 Journal of Social Welfare and Family Law 68 date accessed 30/1/24

Garber B, The Chameleon Child: Children as Actors in the High Conflict Divorce Drama (2014) Vol 11 Issue 1 Journal of Child Custody 25 date accessed 30/1/24

Johnston J and Sullivan M, Parental Alienation: In Search of Common Ground For a More Differentiated Theory (2020) Vol 58 Issue 2 Family Court Review 270 date accessed 30/1/24

Newspaper

Formica M, Why Parental Alienation Is a Form of Domestic Abuse Psychology Today (26 July 2023) date accessed 30/1/24

Proudman C, The discredited legal tactic thats putting abused UK children in danger The Guardian (21 July 2021) date accessed 30/1/24

Reports

Birchall J and Choudhry S, What About My Right to Not be Abused? (Womens Aid 2018) date accessed 30/1/24

Domestic Abuse Commissioner, The Family Court and domestic abuse: achieving cultural change (July 2023) date accessed 30/1/24

Domestic Abuse Commissioner, Understanding Court Support for Victims of Domestic Abuse, Mapping the provision of court-related domestic abuse support and advocacy across England and Wales on behalf of the Domestic Abuse Commissioner (June 2021) [24] date accessed 30/1/24

Ministry of Justice, Assessing Risk of Harm to Children and Parents in Private Law Children Cases (Final Report June 2020) [62] date accessed 30/1/24

Websites

Alienating Behaviours (CAFCASS) Domestic Abuse: Draft Statutory Guidance Framework (The Home Office 13 April 2023)

Parental Alienation (Parental Alienation Awareness) date accessed 30/1/24

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