Legal Update
The courts attitude to  Parental Alienation in 2019 – too little and too late?
28 October 2019

The courts attitude to Parental Alienation in 2019 – too little and too late?

Last week saw the horrific case of Re A (Children) (Parental alienation) [2019] EWFC B56 reported in the press.  The Judge HHJ Wildblood QC and the psychologist in the case described this as one of the most disconcerting of their long careers. The father attempted to re-establish the relationship with his children who had been systematically alienated from him by their mother.  Very sadly it turned out that a combination of the time elapsed before decisive action was taken and the failure of the professionals involved in the attempts to transfer residence to the father, meant that all attempts to re-establish failed. This was a father who loved his children dearly and had done nothing at all to warrant the mother’s campaign to alienate the children from him. The demonisation by the mother had gone so far that the children’s memories of their father did not reflect anything close to their reality. They made unjustified and illogical complaints about their father, and they refused to engage with professionals. In a judgment damning of the mother Judge Wildblood Q.C. was clear that the mother’s actions were “deeply harmful” and would cause significant and long-term harm to the children involved. One of the important contributory factors was the wholesale failure of professionals to identify alienation at an early enough stage. By the time it was identified, the damage had already been done. This shows the willingness of the court to intervene and to shift residence in appropriate cases to the parent that has been alienated with the intent of changing the mindset of the child. Whilst the attempt to shift residence failed the Judge concluded that the change in residence handover had gone badly wrong, as opposed to there being anything wrong in his decision to move residence. The professionals had underestimated the reaction the children would have; the extent of the level of alienation and the children’s resistance were not properly appreciated; there should have been far greater planning and full and frank discussions about the transfer, including with the school that the children attended to improve the prospects of success. This case highlights the deeply concerning problems that continue to plague the courts and professionals in these high conflict cases. Greater understanding and further training are desperately needed in addition to the court’s ability to identify alienating behaviours. Whilst we can identify the source of the illness, we do not know how to medicate it effectively. All the judge was left with in this case was to say sorry to the father, and hope that he find some happiness in the future. From its initial definition as ‘Parental Alienation Syndrome’ in the 1980s the concept gained traction with the long-standing campaign charity, Families Need Fathers, and then the infamous Fathers4Justice group, who you will undoubtedly remember scaling Buckingham Palace dressed as Batman and Robin. Acceptance of ‘parental alienation’ as an issue for the courts was hindered to some extent by this psychological syndrome and association with campaign groups being seen at the time as extreme. Arguing parental alienation in the courts was made difficult by there being an undercurrent that it was possibly a concept used/developed to provide a zero-responsibility excuse for a child’s reluctance to spend time with a parent when there were in fact good reasons for the child’s reluctance. The hangover of this attitude unfortunately remains ever prevalent with some professionals including CAFCASS staff and lawyers still claiming parental alienation as the “hobby horse” of psychologists.  The tide has been changing with, for example, Sir Andrew McFarlane, the President of the Family Division, speaking at Families Need Fathers conference in 2018. McFarlane’s view is that there is no need to be side tracked re psychological /syndrome arguments; alienating behaviour on its own facts is a serious matter and the courts now need to take notice of it. He accepted that: 

in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship’  

Hot on the heels of McFarlane’s address, CAFCASS introduced its 2018 guidance, which aims to identify a range of potential causes for unjustifiable resistance and/or refusal of contact by a child. The guidance very helpfully aims to provide courts with recommendations as to what processes can be employed following a finding of alienating behaviours. The CAFCASS definition for parental alienation is: 

‘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. All potential risk factors, such as domestic abuse, must be adequately and safely considered, reduced or resolved before assessing the other case factors or reasons.’ 

Anecdotally, it appears that uptake of the training by CACFCASS professional remains  low and it is still rarely referred to in safeguarding letters so there is still much work to be done in raising awareness. Further recognition was accorded by the world Health Organisation on 25th May 2019 in the ICD-11, which will come into effect from 1 January 2022.These are positive indicators of a changing attitude of the courts and professional bodies and at last for this to be an issue taken seriously.  Sir Andrew Macfarlane’s view was implemented by HHJ Bellamy in D (A child: parental alienation) [2018] EWFC B64 which is an example of: 

a)    Judicial recognition of the history to parental alienation

b)    The court’s adoption and implementation of the CAFCASS Guidance.

c)    A warning call to practitioners as to the problems that can arise in such cases.

Judge Bellamy accepted that in high conflict cases where children become alienated from a parent– perhaps more often than not – this is caused by the behaviour of the other parent. For practitioners Re D serves as a warning, it is stark example of the problems that can arise in parental alienation cases, and the detriment it can have on those involved where it is not identified and dealt with by professionals appropriately. The case was a prolonged ordeal, resulting in a total of nearly 6 years of litigation and collective legal fees of around £320,000. Moreover, despite HHJ Bellamy’s findings of parental alienation by the Mother, and his clearance of any allegation made against the father, the damage to the child involved had already been done. The process of alienation had been allowed to continue for two years and repairing the relationship would now be an extreme challenge.  In 2008 the father’s litigation resulted in an order which provided that D should live with him in the week and have contact with mother on the weekends. The mother, contested the order via several hearings which continued until 2011. Throughout the process, the mother made serious but false domestic abuse allegations against the father. Those before whom the case came were highly critical of the mother. Her evidence was described as inconsistent and only made in “order to win”. It was consistently found that this case was one in which the mother had such a strong desire for her son to be in her care, that she would not even allow the truth itself to prevent her from obtaining what she wanted. The mother was seeking to tarnish the father as an abusive individual whom would put D at risk of harm so that he would be prevented from caring for D. Unsurprisingly, her evidence was treated as suspect and her allegations against the father were rejected. It was also found that there was a serious risk in future that if the mother was ever awarded residence, she would do whatever she could to reduce contact with father, if not eliminate him completely.  In August 2016, problems began to rear their head once again. D had informally begun to spend an increased amount of time with his mother which led her to beginning another campaign for D to be in her care full time citing new serious allegations. HHJ Bellamy conducted the fact of finding hearing, in which he was also deeply critical of the mother. He noted that the father and D had an extremely positive relationship from 2008 to 2016, with allegations of abuse not being raised until D began to spend more time with his mother in 2016. HHJ Bellamy was also critical of the child D, finding that he was neither an honest nor a credible witness. It was even noted, at paragraph 241, that “It is clear that D has an axe to grind. He seeks to grind it at his father’s expense”. On the other hand, HHJ Bellamy found the father to be “credible, reliable and above all honest witnesses”. He also noted that he was not the first judge in this extended saga of litigation to find him credible. All of D’s allegations were rejected and the father’s evidence of denial was accepted however by this point it is clear that the damage to D has been done.  The case of L (A Child) [2019] EWHC 867 (Fam) (08 April 2019) provides a further example and draws parallels to Re D whereby there was again sustained and prolonged litigation. The child’s parents separated when he was two years old, after which L primarily lived with his mother, along with the maternal grandmother, and spent time with his father who lived in Northern Ireland. Despite the division in care working well informally, the mother applied to solidify the arrangements in a Child Arrangements Order. In October 2017, L had made an allegation to the police that he had been sexually abused by the father. However, in May 2018, the allegations upon which the mother relied were dismissed and the court found “to a very high standard of proof that there has been no sexual or physical abuse by L’s father of his son.“  The father then applied for a change of residence on the basis that the mother and the maternal grandmother was undermining his relationship with L.  The child’s guardian’s report didn’t go so far as to change residence immediately  but found that if the mother and the maternal grandmother did not seek to change their manipulative behaviour and promote the relationship between L and his father, then a change of residence would become necessary.  The mother and maternal grandmother attempted to portray the father as a “bad man” and an irresponsible father. It was therefore held that L’s mother and grandmother could not meet L’s emotional needs and therefore to protect him from further emotional harm in future he should be placed in his father’s care in Northern Ireland. The judge also found that the case fell short of attracting the labels “intractable hostility” or “parental alienation”.  This decision was appealed by the mother; however, her appeal was rejected by Sir Andrew McFarlane who found that the judge below had concluded that the level of emotional harm and the potential for future harm were such that, in the absence of any clear indicator of change, a move of home was justified. He then held that whilst the decision might have been finely balanced, it was not possible to say that the judge was wrong.  Identifying the signs of parental alienation  Any professional reading the above cases should ask themselves whether they would have picked up on the warning signs?  In addition to major warning signs, which when summarised can seem so clear, there may be cases in which this is in fact far more subtle. Such subtle indicators were seen in Re D itself. In father’s evidence he indicated that D had become privy to information that he believed D to be unaware of and was questioning how he came to find out such information. This information related to a historic drink driving offence that the father had been convicted of and which was used by D to undermine the father’s character in his evidence. This is an example of one parent drip feeding negative information about the other parent to manipulate the child’s view of them. Another subtle behaviour that has been identified is where one parent repeatedly demonises normal, excusable behaviour by the other parent. For example, where one parent takes their child to swimming lessons or sports competitions and makes remarks such as, “I hope your mother/father can be bothered to turn up”, or “I hope your mother/father doesn’t let you down again”, therefore resulting in the child becoming upset and feeling let down when the other parent has not been able to make it, usually for some good reason, such as a medical appointment or busy traffic or where they were never infact told they could attend. Hopefully however with training in place for CAFCASS and children law professionals and the wide reporting of cases such as Re A, D and L the early warning signs may be taken notice of. Earlier identification and response by professionals may have prevented the level of harm suffered by D in this case, and the relationship may have been left at least rectifiable.  A key point to draw from Re L is that L was not yet displaying unjustified resistance or hostility towards his father and therefore the facts fell short of the CAFCASS definition. It was nonetheless recognised that if L continued to have been exposed to this repeated behaviour, such allegations would become a part of his belief system. This was therefore a case that, had the behaviour been allowed to persist, would have developed into one of parental alienation. This therefore highlights the importance of courts and professionals recognising the harm of such alienating behaviours at an earlier stage.  In arriving at his decision HHJ Bellamy was assisted by the CAFCASS assessment framework for private law cases and in particular to the section headed typical behaviours exhibited where alienation may be a factor. That document is key reading. In summary it includes:  Behaviour indicators in alienating parents.
  1. Derogatory comments
  2. Suggesting the non-resident parent presents a danger.
  3. Bringing the child into the dispute as a confidant.
  4. Obstructing or mitigating contact
    1. Active interference i.e. stopping calls
    2. Making it a child decision and scheduling other things i.e. school clubs
    3. Creating scenarios to mitigate the quality i.e. telephone calls in front of the tv with the child’s favourite show, or in a busy family room
    4. Encouraging the child to not want contact and praising or promoting the rejecting behaviour
  5. Reframing the NR’s parents legitimate actions as wrong, or nasty. I.e. shouting or reprimanding the child.
  6. Not recognising, or rejecting any positive comments or behaviours regarding the targeted parent.
  7. Creating an unnecessary level of dependency between the child and the alienating parent.
Behaviour indicators in children.
  1. Increasingly negative focus on the alienated parent. Unjustifiably one sided views.
  2. Lack of ambivalence – talks openly and without prompting as to the rejected parent’s shortcomings.
  3. Illogical level of negativity in response to behaviour. I.e. vilification of a parent for a minor (and appropriate) punishment or slight mistake.
  4. Verbal presentations not matched by behaviour. i.e. saying scared of parent before contact, then having a positive contact and showing no fear
  5. Making comments closely aligned as to parent’s comments.
  6. 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.
  7. Claims to be fearful but is aggressive, confrontational, even belligerent. 
The position we have arrived at is, if you have a type of case and identify the above features, these can be brought to the court’s attention. The court may conduct a finding of fact, using the recognised factors and accompanying guidelines, to determine whether there has been parental alienation. There appears to no longer be the need for dressing up as Superman and gluing yourself to the court walls; courts are beginning to recognise such behaviours, even in their more subtle forms. Cafcass and the courts are now alive to the issue, and it is unlikely to go unaddressed as it once did in the past.  However, a word of caution, whilst parental alienation may no longer be the hobby horse of the once deemed dogmatic experts, it may not be time just yet to be putting away those Batman and Robin costumes. Whilst parental alienation is starting to be recognised as a serious matter, there is still some way to go, as highlighted by the substantial failings in Re D. Training needs to be improved and attitudes need changing.  It seems that Gotham may still need its heroes. Julia Nelson Iain Hutchinson