‘Parental alienation’ is a term that is becoming increasingly commonplace in private children law proceedings. however, it remains controversial.
Initially, the approach of the English courts had been ambivalent. In March 2002, Tony Hobbs JP Chartered Clinical and Counselling Psychologist wrote an article in Family Law stating that:
‘The current leading case in England and Wales is that of Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)1. This case relied heavily on a report by Sturge and Glaser ’Contact and Domestic Violence – The Experts’ Court Report’ [2000] Fam Law 615. The report was specifically written to address the issue of contact after domestic violence and, while generally of impeccably high quality, was seriously flawed in its review of Parental Alienation literature – dismissing Parental Alienation Syndrome outright. In the UK’s family court system Parental Alienation Syndrome, therefore, remains unrecognised and unaccepted, despite the fact that for several years it has been known that it may be of some influence in as many as 90% of all protracted family cases.’
He defined Parental Alienation Syndrome in the following terms: ‘One parent (of either gender) seeks to alienate their child(ren) from the other parent; this desire may be either conscious or subconscious. Severe PAS becomes self‑perpetuating: the child refuses contact with the alienated parent, having internalised a host of powerful negative messages from the alienating parent.’
However, in the case of Re O (Contact: Withdrawal of Application)2, Wall J agreed with Dr Claire Sturge and Dr Danya Glaser, who provided the expert report in Re L, that the term ‘parental alienation syndrome’ was a misnomer, preferring their analysis in that case that:
‘We do not consider it to be a helpful concept and consider that the sort of problems that the title of this disorder is trying to address is better thought of as implacable hostility. The essential and important difference is that the Parental Alienation Syndrome assumes a cause (seen as misguided or malign on the part of the resident parent) which leads to a prescribed intervention whereas the concept (which no-one claims to be a “syndrome”) is simply a statement aimed at the understanding of particular situations but for which a large range of explanations is possible and for which there is no single and prescribed solution, this depending on the nature and individuality of each case.’
Cafcass, the Children and Family Court Advisory and Support Service, who independently advise the family courts during children proceedings, have subsequently issued guidance stating that:
‘The definition of parental alienation itself as a concept in family court cases, its surrounding terminology and its scale remain under debate, meaning there is no clear data as to its extent. While there is no single definition, we recognise parental alienation as when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent. It is one of a number of reasons why a child may reject or resist spending time with one parent post-separation.’
How has court reacted to this phenomenon?
While the terminology is still a matter for debate, ‘parental alienation’ as a phenomenon is certainly recognised by the courts.
In Re M (Children)3 Hughes LJ said: ’cases of intractable opposition to personal relationships are very frustrating but also very difficult to solve’. Butler-Sloss P also recognised this difficulty in Re S (Contact: Promoting Relationship with Absent Parent)4 but held that ‘… no parent is perfect, but “good enough” parents should have a relationship with their child for their own benefit and even more in the interests of the child. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt’5.
It was recognised by the courts that there needed to be changes made to the judicial system to ensure that that delays, judicial discontinuity and lack of overall court timetabling in proceedings, factors which could allow parental alienating behaviours to flourish, were addressed.
Bracewell J in V v V (children) (contact: implacable hostility)6 added her voice to those calling for change when she transferred residence from an ’implacably hostile’ mother to the father. She considered that judicial continuity, case management, timetabling, pro-active orders, attaching conditions to residence orders and early effective intervention by CAFCASS officers, were only partial remedies.
Changes have been introduced to tackle this issue. Since the commencement of the single family court on 22 April 2014, allocation to the appropriate level of judiciary to deal with the issue is determined in accordance with the Family Court (Composition and Distribution of Business) Rules 2014 and the President’s Guidance on Allocation and Gatekeeping for Proceedings under Part II of the ChA 1989 (Private Law) (issued on 22 April 2014).
Under paragraph 7 of the President’s Guidance the appropriate level of judiciary will be determined by consideration of the relative significance of:
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The need to make the most effective and efficient use of the local judicial resources that is appropriate, given the nature and type of application
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The need to avoid delay
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The need for judicial continuity
Cases that appear to involve, or have the potential to involve, intractable opposition to contact appear in the Schedule to the President’s Guidance on Allocation in the Part 2 column, which sets out a number of different types of cases suitable for allocation to a ’District Judge but may be by Circuit Judge (or at most serious level by High Court Judge)’.
What happens in cases of parental alienation?
In cases of parental alienation and/or unwarranted obstruction of contact, the courts are increasingly willing to balance the risks of a transfer of residence within a comprehensive analysis of the child’s welfare which results in a transfer of residence from the implacably hostile parent to the other.
In Re L (A Child)7, McFarlane P sanctioned a transfer of residence between two broadly similar households where the case turned on the issue of emotional harm and the absence of any clear indicator of change on mother’s part:
‘Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care. Use of phrases such as “last resort” or “draconian” cannot and should not indicate a different or enhanced welfare test. What is required is for the judge to consider all the circumstances in the case that are relevant to the issue of welfare, consider those elements in the section 1(3) welfare check list which apply on the facts of the case and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs.’8
In Re M (Contact)9 the court concluded that mother’s failure to adhere to contact orders placed them at an unacceptable risk in the short, medium and long term of being deprived of family relationships that the court deemed essential for their development as balanced young people and as adults. Consequently, a conditional ‘lives with’ order was made which would come into effect in the event of the mother’s non-compliance with the contact order.
Recent case law in respect of parental alienation reinforces the paramountcy of the child’s welfare at the heart of all private children law proceedings and therefore, where one parent demonstrates implacable hostility towards the other, the court will weigh up what is in the child’s best interests and, if deemed in the child’s best interests, may make an order that the child live with the other parent to prevent the child being exposed to further risk of harm.
A cautionary word
The types of cases where the courts are more likely to give rise to a finding of parental alienation are:
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Where one parent continually fails to adhere to orders made in respect of child arrangements
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Where court appointed social workers determine that the children are being placed at risk of significant emotional harm, or are already suffering from it, due to one parent’s feelings about the other.
However, the consequences for the implacably hostile parent can be severe, as outlined above. Therefore, the term ‘parental alienation’ should not be used lightly, and careful consideration given by those involved in the case whether it is an appropriate argument to run.
[1] [2000] 2 FLR 334
[2] [2003] EWHC 3031 (Fam), [2004] 1 FLR 1258.
[3] [2008] EWCA Civ 367
[4] [2004] EWCA Civ 18, [2004] 1 FLR 1279
[5] [33]
[6] [2004] EWHC 1215 (Fam), [2004] 2 FLR 851
[7] [2019] EWHC 867 (Fam)
[8] [50] Cited by Keehan J in Re H (Parental Alienation) [2019] EWHC 2723 (Fam), [2020] 1 FLR 401, where against a background of parental alienation, the court transferred residence from mother to father.
[9] [2012] EWHC 1948 (Fam), [2013] 1 FLR 1403.
