Parental alienation: who's pulling the strings?
By Jack Henry
Jack Henry considers the dynamics of parental alienation
Parental alienation has previously been described by Cafcass 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”. The depth of resistance and hostility to a parent will reach such a level that its impact actually causes harm to the child.
As a term for describing hostility from a child to their parent, parental alienation has been known by other names such as ‘implacable hostility’ and ‘Parental Alienation Syndrome’. Defining this concept in such a way actually led the Court of Appeal to state that such labelling was not helpful (Re L, V, M and H (Children)  EWCA Civ 194). Since Re L, V, M and H, the term parental alienation has been settled on as the best way of defining this issue.
Despite cuts in legal aid funding, the courts of England and Wales continue to receive an influx of private law children cases. The case of Re D (A Child: Parental Alienation)  EWFC B64 (19 October 2018) notes “most experienced Family Court judges would acknowledge that there is a category of private law Children Act disputes which present profoundly difficult challenges to the court and which frequently cause judges near despair as they endeavour to achieve a positive and enduring outcome for the child.”.
As a legislative starting point, the Children Act 1989 demands that the court, practitioners, and all parties involved must place the “best interest of the child” as the paramount consideration. This is a key foundation of Children Law in England and Wales and creates a voice for the child in a world where they may not otherwise have one.
A key trait of parental alienation is that is can be very difficult to spot or even more complicated to act upon. Like a virus, it is often only seen when it has already started to work on the victim. If the court does not act swiftly, delay in these proceedings can only enhance the symptoms. It is important to note that there may be other reasons for the child saying that they do not want to spend time with a parent. Such reasons can include rejection, conflict between the child and the parent and abuse, to name but a few. As each practitioner will note, every case must turn on its own merits and factual matrix.
Given the risk of harm that parental alienation presents, English and Welsh courts have a variety of tools in their armoury to attempt to address the situation. The starting point and foundation of any case management is that the court must always be mindful of delay. The reasoning for this is obvious, the longer that any potential case with suspected parental alienation is left unchecked, the deeper the roots grow and the more entrenched the child’s view will be. This is especially prevalent in children whom are older. The balance between the harm that alienation causes the child and the harm that ordering direct contact with the alienated parents is a tightrope that the court and all practitioners must be mindful of.
Under Family Procedure Rules Practice Direction 12J (PD12J), the courts in England and Wales must look to the need for a Fact Find Hearing. This option to the court is linked to that of the ‘no delay’ principle but is often difficult to have such hearings, fully prepared without some delay. PD12J states that the court “should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse”. Parental alienation is, to some practitioners, still an undiagnosed issue. A Fact Find Hearing allows the court to focus specifically on the issue of alienation and whether the act of the alienating parent is to such a level that harm is being caused to the child. This is a very useful tool that can be applied at the earliest stage and focuses the mind of the parties and their legal representatives.
Given the numerous strains on our legal system, perhaps the most difficult case management power to the court to ensure is that of judicial continuity. However, the benefits of the same judge on these cases must not be underestimated. Keeping the same judge on these cases allows for a clear timetable to be set out. This can directly address the delay principle and ensure that all case management tasks are swiftly acted upon. Additionally, keeping the same judge allows the judge to build an understanding with the parties and continually probe matters.
Once the case management matters have been addressed and the court process is fully underway, the court should be minded for the variety ways that any case can be brought to a conclusion. The court should seek to “act as a reasonable parent”. The main concluding route available, as will be noted in the case law below, is a change of residence. This was identified along with the options of Wardship and the ordering of a Section 37 assessment (involvement of the Local Authority) in the case of Re M (Children) (Ultra-Orthodox Judaism: Transgender)  EWCA Civ 2164.
Sir James Munby (then) President of the Family Division stated:
“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 (see Re D (Children)  EWCA Civ 1551 and Re D (Children)  EWCA Civ 496) 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.”
The above case highlights the lengths that the judge can go in order to protect a child from further harm. Perhaps a more commonly used option would be the appointment of a guardian for a child pursuant to Rule 16.4 of the Family Procedure Rules. Parental alienation in its very nature is built around the child and their views. The voice of the child therefore cannot be lost within the court process.
What is clear is that alienation can take many forms but all routes lead to a child that does not want to have contact with their parent. Any child that is the victim of parental alienation can be seen to be suffering harm. The issue therefore reaches to the very heart of the Children Act 1989 and the duty of the court to protect children from harm and act in their best interests. Often the party who is inflicting the alienation upon the child can attempt to hide behind the wishes and feelings of the child. It is imperative to note that an important part of the Welfare Checklist has been omitted and that is the ‘ascertainable’ wishes and feelings.
The court and practitioners must utilise a full variety of tools before them to ensure that the best interests of the child are met. As always, it is important to remember that each case turns upon their own merits and should be considered within all circumstances of the case. Unfortunately, the issue of parental alienation appears to be all too common within our legal system and in order to truly protect the child/children we must ensure that it is appropriately addressed at the earliest opportunity.
Jack Henry is barrister and partner at DF Legal LLP dflegal.com