What happens if a child has been manipulated to such an extent by one parent that he or she is unwilling to have any contact with the other parent? The approach of the Courts and practitioners to what’s known as parental alienation is constantly evolving as our understanding of the effects of this type of behaviour on children and parents deepens. It’s an area of family law on which I regularly advise, representing parents on both sides of the argument through the Direct Access Scheme also known as the Public Access Scheme. Here I examine some key aspects of parental alienation and consider how the Courts and the legal profession approach it.
When Does Parental Alienation Arise?
When parents can’t agree on child arrangements, it’s ultimately up to the Courts to decide who the child should live with and how much time a child should spend with each parent. (These ‘live with’ and ‘spend time with’ orders replace the old concepts of residence and contact.) In approaching child arrangements, the Court is required to give paramount consideration to the child’s welfare, and in doing so it may seek to establish the wishes and feelings of the child. It’s in this context that the concept of parental alienation most commonly arises.
What Does Parental Alienation Mean?
The concept of parental alienation is not defined anywhere but it’s generally accepted that it may be present when:
· A child shows hostility to spending time with one parent when there’s no discernible reason for doing so
· The hostility can be traced back to manipulation of the child by the other parent
Alienating behaviour can take many forms and exists in varying degrees of severity.
Identifying Parental Alienation
Because of the range of behaviors associated with parental alienation, it’s rarely straightforward to establish. To investigate the possibility of alienation, the Courts frequently use powers under Section 7 of the Children Act to appoint Cafcass (The Children and Family Court Advisory and Support Service) to report to the Court on such matters relating to the welfare of that child. In a parliamentary research brief in 2020 Cafcass helpfully described some of the types of behaviour that could amount to or lead to a finding of parental alienation. These include:
· A parent constantly bad mouthing or belittling the other
· Limiting contact with one parent
· Forbidding discussion about another parent
· Creating the impression that the other parent dislikes or does not love the child
Other forms of alienating behaviour might include:
· Refusing to pass on communications like letters or calls from one parent
· Threatening a child with punishment if he or she spends time with the other parent
· Placing obstacles in the way of contact with the other parent
How Do The Courts Approach Parental Alienation?
In making child arrangement orders under the Children Act, there’s a presumption that children benefit from the involvement of both parents in their life. Clearly that aim is undermined if a child has been alienated to a degree that he or she objects to spending time with one parent.
The Courts are more and more alive to the long-term damage parental alienation that goes unchecked can have on a child. Our understanding of the issue is becoming more sophisticated all the time. As a result there’s a growing realisation by professionals and the Courts of the need to urgently address alienation where it exists to prevent longer-term psychological damage to the child.
In my own experience as a barrister working on this type of case I’ve seen how the most recent cases involving parental alienation point to a more proactive approach by the Courts. They won’t shy away from intervening — for example to move a child’s residence — if it is in the child’s interests and sufficient evidence of alienation is produced.
In Re H (Parental Alienation)  EWHC 2723 (Fam)
In this 2019 case the Court found unequivocally that the Mother had alienated the child from his Father, that the absence of the Father in the child’s life would cause the child emotional and social harm and that the only way the child could enjoy a relationship with both parents was to transfer residence away from the Mother and to the Father. The judge, Mr. Justice Keenan provided a useful summary of the approach the courts should take in this type of case. He indicated that:
· The welfare of the child is the court’s paramount decision
· Courts must look at the ‘welfare checklist’ contained in the Children Act, including the likely effect on the child of a change in circumstances and any harm the child has suffered or is at risk of suffering
· Judges should decide which checklist factors apply to the case in hand and then, taking all those matters into account, determine which of the various options best meets the child’s welfare needs
· At all times judges should bear in mind article 6 (right to a fair trial) and article 8 (right to family life) of the Human Rights Act, 2000. But while tackling parental alienation is important in safeguarding the mental health of a parent who has been the victim of the behavior, if there is a conflict between the rights of the child and the rights of the parent the child’ interests come first.
How I Can Help
Parental alienation is not always easy to spot. It takes many forms, some more subtle than others. I work closely with individuals to identify instances of alienation — or to counteract allegations that they have sought to alienate a child from another parent. . If you would like further advice or need representation you can contact me on SNajma@2kbw.com. Instead of you having to deal with several lawyers, I’ll work directly with you, assess your case and if necessary provide you representation in Court.