What is the ‘magic bullet’ required to stop PA in its tracks?
Well, there are several possible candidates, as follows:
- The judge could make an immediate transfer of residence order, conditional upon the alienator cooperating with contact. This is a ‘coercive’ order. The idea here is that the alienator is incentivised to cooperate with contact, because, if he/she does not, residence will be transferred immediately. This is, and always has been, a possibility, but judges rarely make these orders. Having said that, recent cases show that the courts are no longer seeing a transfer of residence as the ‘nuclear option’. The logic seems to be, hopefully, that if a child is being abused then we must get him/her out of the way of the abuse immediately – and this is so, whether the abuse is physical, sexual, or psychological;
- Judges could enforce contact orders. On this site, we mention that the family courts enforce their own orders only 1.2% of the time. In fact, that figure is from 2015. The figure is now 0.9%. So – 99.1% of the time alienators ignore court orders and nothing happens. So, it is hardly any surprise that they keep alienating!
- We could adopt a mix of Australian and American ideas – that is, that 50-50 parenting is ordered straight away, and that neither parent may move more than 10 miles from wherever they are living now. This is done as a preliminary step, to ‘draw a line in the sand’;
- We could make PA a crime;
- We could make PA a specific tort (a civil ‘wrong’, like negligence or defamation);
- Judges could order alienators to pay costs or fines, or do community service;
- Judges could order disobedient alienators to be arrested and detained in prison for a short, sharp shock
Now, to make it clear, when I talk about ‘PA’ here, I mean ‘hard’ alienation – that is where the alienator knows precisely what they are doing – deliberately setting out to break the bond between the child and the other parent. Here, the alienator usually has a ‘cluster B’ type pathology, like narcissism or Borderline Personality Disorder. It is important to distinguish between this kind of alienation and ‘soft’ or ‘hybrid’ alienation, where the alienator is, rather than malicious, simply careless with their language. In soft alienation cases, the alienator can be educated and the child ‘flipped’. In hard alienation cases it is impossible to ‘flip’ the child, certainly not without a transfer of residence order, because any efforts made with the child will immediately be undone and rendered useless by a cluster B alienator.
Given this, which of our options are preferable in hard alienation, high-conflict, intractable cases?
Well, I think this is a great idea. The case law shows that hard alienators never play ball unless there is the sword of Damocles hanging over their heads. The question is: will the judge actually enforce the order and transfer residence as threatened?
Enforcing Contact Orders
This is my preferred solution. It is outrageous that judges do not enforce their own orders. That is why the judiciary has become a laughing stock. I am confident that if judges were robust, PA would end.
Again, a good idea. The point is that if the alienator spends less time with the child, he or she will have less opportunity to alienate. Also, it’s about fairness. Both parents have a right to see their child equally. Likewise, the child has a right to proper, direct, plentiful and meaningful contact with both parents. The problem is that the alienator still has to cooperate, and we know that they do not! And just because they have less time to do it, won’t mean they don’t or can’t. And, without robust enforcement of 50-50 arrangements, the arrangement might as well not exist;
Making PA a Crime
Yes, I would like to see this, of course. PA is a criminal offence in some countries. The problem here is the burden of proof. In a criminal case, the state has to show that the alienator committed the offence ‘beyond reasonable doubt’ and that they intended to do so. Again, without judicial robustness, this will be ‘hollow’. It is extremely rare for judges to jail anyone in a family matter, so I am not convinced that they are more likely to do so, just because it’s identified as a specific criminal act.
Further, ss 66 and 76 of the Serious Crimes Act 2015 already makes emotional/psychological abuse a crime (against both you and your child). I have done no research, but my guess is that there have been no prosecutions, and certainly no successful ones. If anyone knows any different, please let me know.
Making PA a ‘tort’
Notice, tort, not ‘torte’. Unless you feel that deserts are part of the solution 😊 But seriously, a tort is a civil ‘wrong’ – it’s the French word for ‘wrong’. There are many torts in law, such as negligence, defamation, trespass and so on. The ‘cure’ in all cases is for the wronged party to sue (take legal proceedings against) the wrongdoer (‘tortfeasor’). If you win, you get cash.
The reason I like this idea is that, to win a civil case (a tort case), you only have to prove your case on the ‘balance of probabilities’ – that’s the civil burden, not the criminal burden of proof. This is attractive because, unlike physical or sexual abuse, the evidence in PA cases is harder to come by. There are no photos or x-rays. We all know from our dealings with CAFCASS that social workers cannot understand the very concept of psychological abuse, and are not, in any event, trained to spot it. They are not psychologists. They are not diagnosticians. Most social workers could not even be described as ‘the sharpest tool in the box’. Now, we can accept the view of Dr Amy Baker (amongst others) that children do not reject parents without some help or coercion. So, if we can persuade the judge of this, we can try pleading something like ‘res ipsa loquitur’ – that is ‘the thing speaks for itself’. If a child has rejected a parent, this must raise a (rebuttable) presumption that the child is being – or at least might well be – alienated.
Next, there are some torts like ‘wrongful arrest’ and ‘false imprisonment’ that allow awards of exemplary and punitive damages. I would like to get the tort of PA so classified. The reason that makes a difference is that in a normal tort case, the wronged party gets only ‘compensatory’ damages. The idea is to put that person in the same position they would have been in, had the tort not occurred, so far as money is able to do that. So, in a personal injury case in the UK involving Big Pharma, an injured party might get, say, £100,000. That same case, though, in America would attract exemplary and punitive damages, meant, respectively, to make an example of and to punish the wrongdoer. Also, in America the awards are decided by juries, who tend to be much more generous than judges (although most very high awards will be appealed). So, that same case would now be worth several £million, not thousands…
Imagine how many parents would alienate if they got sued successfully for £2 million! Or even £10,000. I think they would be a bit slower to take a hatchet to your relationship with your child…
Costs, fines and Community Service
As the law currently stands, alienators can be ordered to pay your costs of having to keep bouncing back to court to try to enforce orders. They can be ordered to do community service or pay a fine. But this is never done. So, we come back again to robust judges. If the judges would simply do their jobs, most of this would go away. Also, these kinds of orders require only the civil standard of proof. But even then, judges still do not do it. Ever.
Yes, a judge can put a disobedient parent in jail for disobeying a court order, or for lying on oath. Both are ‘Contempts’ – a criminal offence. But again, this never happens.
We could make PA a crime and/or a tort. We could change the law. But my strong instinct is that this is not about the law. It’s about application of the law. The law is fine as it is. It’s not perfect and could be improved, but, in general terms, the Children Act 1989 is a good piece of legislation. My preferred method, therefore is to get judges to simply do their jobs. Enforce their own Orders, for God’s sake! Punish false allegations! Make costs orders and fine alienators! This is all possible under the law as it currently stands.
But judges do not do this. Judges are weak and cowardly. Worse than that, they are, effectively completely unaccountable and make these outrageous decisions in private, so we don’t even know what’s going on.
Would you put up with a bad teacher, a bad doctor, or a useless plumber? Why do we put up with it with judges? There are many, many bad judges out there.
Judges have lost the confidence and respect of the public. It’s time to let them know.
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