Family values: parental alienation

Emma Nash explores how the courts deal with the complex topic of parental alienation

The relationship between a child and their parents is hugely important in promoting their welfare, ensuring healthy development into adulthood and their future relationships.

What is parental alienation?

Parental alienation is when a child becomes unjustifiably hostile towards, or estranged from, one parent because of the actions or emotional manipulation of the other parent. The motivation behind such behaviour can be complex and each case will inevitably turn on its own facts.

Parental alienation can be subtle, difficult to prove and might not even be intentional. Alienation can happen if a child spends considerably more time with one parent after a separation than the other. Seeing one parent suffering from the fallout of the relationship daily, but only seeing the other parent occasionally, and in less stressful circumstances, can lead to children siding with one parent over the other.  

The other parent might be struggling just as much, but this is not visible, and they can often be blamed for leaving or not providing enough support, even if this is not the case. Even a short period of time when children do not see both parents regularly can have an impact on the relationships, particularly for younger children.

While it may be difficult, the importance of managing the end of a relationship with these issues in mind and not exposing children to negativity and conflict cannot be underestimated.

Sometimes parents intentionally manipulate children in order to alienate them from the other parent. This can include:

·       Refusing to allow the child to spend time with the parent;

·       Denigrating or insulting the other parent in front of the child;

·       Blaming the other parent for the situation – e.g. ‘I can’t afford to take you to football lessons because Daddy will not pay’;

·       Coaching or convincing the child that they have witnessed or suffered abuse at the hands of the other parent;

·       Making it difficult for the other parent to be involved in the child’s life – e.g. moving away or not telling the other parent about important events, such as parents evenings.

It is not unusual for the Family Court to get involved in such cases, often at the instigation of the parent who is being alienated.

The court’s stance

When making decisions relating to children, the Family Court must presume a parent’s involvement in a child’s life will further the child’s welfare, unless there is evidence to the contrary (section 1(2A) of the Children Act 1989).

There will, of course, be some cases where it will be better for a child to have a limited relationship with a parent. For example, in cases where that parent exposes the child to harm through domestic abuse or neglect. However, it is rare for the risk of harm to be considered so great that the court will justify no involvement by a parent in a child’s life.

The Family Court can make orders setting out who a child lives with and what time they spend with the other parent, as well as orders in relation to specific issues – e.g. what school a child should attend or orders preventing a parent from doing something such as taking the child out of the country (section 8, the Children Act 1989).

In each case, even if just approving an agreement, the court must consider how their decision will impact the child’s welfare. They will be assisted by the Children and Family Court Advisory Support Service (CAFCASS) who carry out mandatory safeguarding checks in each case and are trained to identify welfare issues such as parental alienation.

The court then must refer to the ‘welfare checklist’ set out in section 1(3) of the Children Act 1989, which includes a consideration of each parent’s ability to meet the child’s needs. In cases where parental alienation is proven, there will be considerable question mark over the alienating parent’s ability to meet the needs of the child and this is likely to influence the decision of the court.

If a parent refuses to comply with a court order and continues to alienate the child, then the court has a range of powers it can use to enforce their decisions, including imposing fines or a custodial sentence and changing living arrangements for the child.

A change of residence or primary care is likely to be a last resort and such a decision must balance the potential short-term harm of such a move on the child against the long-term damage of the continued alienation.

Notable cases

In 2018, in Re C (A Child) [2018] EWHC 557 (Fam) a judge ordered the transfer of residence of a 6-year-old girl from her mother to her father. The mother had been given numerous opportunities to comply with court orders and support the relationship with the father, but had repeatedly failed to do so.

The mother appealed on numerous grounds, including alleged procedural irregularities and lack of judicial continuity. The appeal was found to be “totally without merit”. Unfortunately, by the time this decision was taken, a great deal of damage had been done.

The proceedings had been highly acrimonious and had run to over 50 hearings. Arguably, the Family Court could have taken a stronger position sooner, which might have limited the damage to this family.

In the case of Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam), the High Court again transferred residence from a mother to a father.

This time, the case related to a 9-year-old girl whose mother was exposing her to the teachings of a harmful cult. The cult’s teachings included very strict rules for all aspects of living and a very negative view of those not in the cult, which was leading to the child becoming alienated from her father.

The court heard from both parents and an independent social worker and was satisfied that the mother was not going to take steps to protect her daughter from exposure to the cult and the damage that it was doing to her relationship with her father.

It concluded that the short-term difficulties that the child would face in moving to live with her father would be outweighed by the long-term benefits of having an improved relationship with him.

Domestic abuse

Protection for victims of domestic abuse in court proceedings has improved in recent years. In 2017, an amended Practice Direction 12J introduced into the Family Procedural Rules 2010 a mandatory procedure for cases involving children and domestic abuse, stating unequivocally that domestic abuse is harmful to children and establishing a broader definition of abuse to include coercive and controlling behaviour.

More recently, the Domestic Abuse Act 2021 has introduced additional protections for victims of domestic abuse, including a prohibition on being cross examined in court by their abusers or alleged abusers.

If there are allegations of abuse between parents, the court must be cautious about what the arrangements should be for any children to avoid exposing them to any risk of harm. Sometimes a full investigation is required, including a hearing to establish whether the allegations are true.

These investigations can add months on to the proceedings and can be incredibly stressful and traumatic for all involved. They can also significantly disrupt the relationship between a child and the parent accused of perpetrating the abuse.

Unfortunately, some allegations of domestic abuse are made falsely and with the intention of disrupting the relationship between the alleged abuser and the child, either permanently or until a full investigation can be carried out.

This is possibly one of the most extreme forms of alienation, particularly if the children are old enough to be involved in the investigation process or are repeatedly exposed to the allegations by the parent making them.

Genuine domestic abuse is abhorrent and absolutely needs to be taken seriously and its victims need adequate protection, but there must also be protection for those facing false allegations, consequences for those found guilty of making them and recognition of the damage that such allegations can have on children.

To avoid the impact of unintentional alienation on their children people need to understand how their actions may affect their children in the short and long term and be provided with adequate support when a relationship ends.

Available support

There are some resources available, including court-endorsed programmes, to promote positive co-parenting, but even engaging in counselling or therapy to help people come to terms with their own emotions can make a difference. The challenge will be to ensure that such support is made available and utilised and the child’s needs are always prioritised

With intentional parental alienation the challenges are different; however, early identification and intervention by professionals including CAFCASS and the Family Court, together with support for those parents and children facing these issues, robust court action if needed and consequences for those parents who wilfully engage in alienation and fail to remedy their behaviour, will help to limit the damage.

Emma Nash is a partner in the family team at Fletcher Day fletcherday.co.uk