The term Parental Alienation (or sometimes referred to as implacable hostility) has become somewhat of a buzz word within recent Children’s Act Proceedings. Many lay parties consider this to mean when their contact or relationship with a child is restricted or halted completely by the other parent, however a finding of Parental Alienation is far more nuanced than this and involves a rejection or resistance to contact or a relationship with one parent from the child themselves, which is due to influence of manipulation of another parent.
The Law
It is written into legislation that ‘unless the contrary is shown, involvement in the life of a child by a parent will further the child’s welfare (The Children’s and Families Act 2014 S1(2A)). The case law of Re C (A Child) sets out:
- Contact between a parent and child is a fundamental element of family life and is almost always in the best interests of the child;
- Contact between a parent and a child is to be terminated only in exceptional circumstances where there are cogent reasons for doing so and where there is no alternative. Contact is to be terminated where it is detrimental to the child’s welfare;
- There is a positive obligation on the State (therefore the Judge) to take measures to maintain and to reconstitute the relationship between the parent and child. The Judge has a duty to positively promote contact; and
- Contact should only be stopped as a last resort and only once it has become clear that the child will not benefit from continued attempts.
The theoretical idea of Parental Alienation Syndrome was first propounded by American child psychiatrist Richard Gardner in 1985. Dr Gardner is now held in disrepute as a credible psychiatrist given some alarming studies and theories relating to issues of child abuse; however, the theory of parental alienation is one that has been adopted within the English judicial system, having been a feature of many cases previously tried in the High Courts. It is an issue that is taken very seriously and is described in Baker v Darnall 2007 as ‘an unwarranted rejection of the alienated parent and an alliance with the alienating parent, characterised by the child’s extreme negativity towards the alienated parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parent.’
Parental responsibility places obligations on parents in matters of contact and managing a child’s hostility towards contact with a non-resident parent. In the case of Re W 2012, MacFarlane LJ’s recorded judgment states “Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child’s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ‘no’ to strategies designed to improve the situation in this regard.”
This was emphasised by Munby P in the case [Re H-B (Contact)[2015] when he stated that it is not acceptable for a parent to shirk their responsibility by sheltering behind an assertion that the child will not do, or even that the child is adamantly opposed to doing, something and that this applied whatever the age of the child. Essentially, it is not considered good enough for a parent to simply state that a child does not want to, and that all endeavours should be made to encourage and prepare a child for contact with the other parent, regardless of the existence of a poor relationship between the parents.
The modern day description of Parental Alienation was considered by the Court of Appeal in the case of Re S (Parental Alienation: Cult)[2020] as ’When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”
There does not need to be evidence that the manipulation is malicious or even deliberate and a finding of parental alienation can result in a substantial change in arrangements for the child, to include where they live and with whom.
Each case is determined on a case by case basis, meaning there is no prescriptive checklist that must be met, however HHJ Bellamy in the case of Re D (A Child): Parental Alienation)[2018] set out a list of typical behaviours to look for:
• The child’s opinion of a parent is unjustifiably one sided, all good or all bad, idealises one parent and devalues the other;
• Vilification of the rejected parent can amount to a campaign against them;
• Trivial, false, weak and/or irrational reasons to justify dislike or hatred;
• Reactions and perceptions are unjustified or disproportionate to parent’s behaviours;
• Talks openly and without prompting about the rejected parent’s perceived shortcomings;
• Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent. May report events that they could not possibly remember;
• Extends dislike/hatred to extended family or rejected parent (rejection by association);
• No guilt or ambivalence regarding their attitudes towards the rejected parent.
• Speech about rejected parent appears scripted, it has an artificial quality, no conviction, uses adult language, has a rehearsed quality.
• Claims to be fearful but is aggressive, confrontational, even belligerent.
Procedure
These typical behaviours are explored through various sources during the course of proceedings. The initial argument is usually raised by the parent seeking contact and responses are set out in initial statements. The Children and Families Court Advisory Service (Cafcass) will conduct their initial enquires and usually a further, more explorative report known as a section 7 report. If Cafcass are of the view that there may be a manipulation of the child or open denigration of the non-resident parent that is leading to hostility from the child, the Court will give consideration as to whether a Rule 16.4 Guardian should be appointed. The role of a Guardian is to represent the needs of the child(ren) separately to the parents.
Where parental alienation is suspected, any party (although this is usually the Guardian) can make an application for the instruction of an independent expert (usually a child and family psychologist) to give expert evidence on the view and behaviour of the child and whether there is influence by the parent(s).
The Court can also order the Local Authority to prepare a section 37 report. This report is for the Local Authority to consider whether they should apply for a care order (this will give the Local Authority parental responsibility for the child(ren) which supersedes that of the parent(s) meaning that they would be able to make decisions for the child(ren) without the parent’s consent) or a supervision order (to be involved with child(ren) to advise, befriend and assist); whether they should provide services or assistance to the family; or whether they should take any other action in regard to the child(ren).
Remedies
It is known in cases where parental alienation has been proved, for the Court to order a change of living arrangements, so the stakes in terms of a judgment of parental alienation are extremely high.
The leading case is Re M (Children)(Ultra-Orthodox Judaism: Transgender Parent)[2017]. The case concerned an appeal by a parent from a decision of Peter Jackson J (as he then was) where at first instance he had declined to order direct contact between the parent, who had left the Charedi community to live as a transgender person, and the five children, because of the likelihood of the mother and children being marginalised or excluded from the community. Indirect contact was ordered four times per year and a Family Assistance Order made to enable social workers to work with the family to explain the situation to the children.
The parent appealed this decision which was sustained and heard by the Court of Appeal, who set out to key principles for the matter in hand:
- That the function of the Family Judge is to act as a ‘judicial reasonable parent’;
- Judges have a positive duty to attempt to promote contact in cases of alienation which requires it to grapple with all the available alternatives before abandoning all hope of achieving contact. Munby P set out how the Judge is expected to deal with the issue of alienation and the responsibility on the Court:
“Where an intransigent parent is fostering in their child a damaging view of the other parent, and thereby alienating the child from the other parent and denying contact between them, the court does not hesitate to invoke robust methods where that is required in the child’s interests. Thus, the court may make an order transferring the living arrangements (residence) from one parent to the other, either to take immediate effect or suspended so long as the defaulting parent complies with the court’s order for contact. The court can make the child a ward of court. The court can make an order under section 37 of the Children Act 1989 for a report from the local authority with a view to the commencement of proceedings for taking the child into public care.”
Another such case is Re H (Parental Alienation): PA v. TT and another [2019] EWHC 2723. In this case, a family psychological report was ordered. The psychologist assessed the parents and the child at length, and concluded that the entrenched opinions of the mother, who regarded herself as a victim and disavowed any responsibility for what had taken place, had transferred to her son over time, resulting in his independent rejection of contact. The child’s presentation suggested alienation rather than estrangement whilst also he prioritised the needs of his mother over his own.
The presiding Judge Keehan J made a Child Arrangements Order that the boy live with his father and spend time with his mother after a three-month transition period. He held that the only means by which the child could have a full relationship with his father was by an order that he live with his father. Such an order was in his best interests and nothing else would do. He found that the mother had alienated the father and did not support him in playing a role in the boy’s life. As a result, the boy was suffering emotional and social harm with consequences continuing throughout his life if the situation were allowed to continue. Whilst the court accepted that there was a small risk that the child would not settle in the care of his father, on balance a transfer of residence was required. He accepted the expert evidence that any attempt to restore direct contact whilst the child lived with his mother was likely to fail, with the boy merely becoming more entrenched in his views.
This is clear guidance to the Court that in cases where a parent appears to be alienating a child from the other, that robust methods must be invoked which translates to a change of living arrangements for the child(ren), with either immediate effect or suspended to allow the ‘alienating’ parent to ensure that an order for contact is adhered to.
The recent judgment of HHJ Vincent in B v C (private law – allegation of parental alienation) [2021] however provides a helpful reminder that an allegation of parental alienation is not a ‘trump card’ it is important to look carefully at the reasons why a child may feel as they do. It also highlights the danger of attributing all of a child’s behaviour to the influence of the other parent. In that case it was stated the child “desperately needs acknowledgement that he is his own person, not speaking his mother’s voice but expressing his own views”.
Cases of parental alienation or alleged parental alienation are often very complex and the facts of every case are different. Our team of experienced lawyers can give you further advice on the specific circumstances of your case.
