Finding Parental Alienation

There has been much discussion about what the courts should do when it has made a ‘finding’ of Parental Alienation.   Perhaps Parental Alienation must be thought of as a kind of child abuse.  I certainly think so, as does June Venters QC, when she asks[1]

“One issue that does concern me, and I know many others, is that when there has been a finding of parental alienation why it is not thereafter referred to and treated as a form of “child abuse” in the same way as other forms of child abuse together with a recognition of the significant harm which may have been caused to the child.”

It is ridiculous for family courts to regard Parental Alienation as a form of child abuse and then to leave the child with the abuser.   It would be like finding that a child had been sexually abused by a parent, and doing nothing – just leaving the child in harm’s way.

If you read June Venter’s piece in Family Law, you will see that she makes several references to what should happen in the event of a ‘finding’ of Parental Alienation.  Yes, in my view, the child’s residence should be transferred, or, at the very least, a coercive suspended Order should be made threatening to transfer residence if the Alienator fails to comply with contact Orders.  And yes, the case must then qualify as public law (S37 of the Act), allowing parties to be granted Legal Aid.  Indeed, in W (A Child) [2014] EWCA Civ 772

Ryder LJ says:

“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case [my  emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.

I have emphasised that s37 criteria were engaged ‘on the facts of this case’.  This, I am sure is because floodgates must be kept firmly closed.  If s37 criteria could be met more easily, Legal Aid costs would go through the roof.  So I am sure that Ryder LJ’s comment here is motivated more by political than legal considerations.

OK, so we can have some debate about what happens when a finding of Parental Alienation is made.

But this, whilst interesting and important, is not the real issue. 

The real issue is the difficulty in procuring such a finding.

There is real, tangible judicial reticence in finding that PA exists both in individual cases or, indeed, at all.  In my own case, for example, the judge agreed that the mother was obstructing contact, was “sticking two fingers up to the court”, that none of the allegations made against me were true and that I was a ‘good enough’ father who had done nothing wrong.  But the judge refused to find that Parental Alienation was proven. 

And, it seems, this is important. 

Because if PA is found, the judge has to actually do something. 

If, on the other hand, the judge accepts some, many or all aspects of PA are present, but does not declare a clear diagnosis of PA, he can hide.  He can be cowardly.  He can say ‘Well, there are obviously problems here, but there are not sufficient, even when taken together, to amount to PA, so I don’t have do anything.’

But judges need to absorb the fact that a decision to do nothing is still a decision.  And that decision can have long-term disastrous consequences for the child.

It seems that Judges (and CAFCASS of course) do not know what PA is

My question (and I see this as rhetorical) is:  who cares?!   If a parent is frustrating contact, disobeying/ignoring court orders, sharing inappropriately with the child all the details of the court case, failing to support the child in its relationship with the other parent (as was found in  my case) why does it matter if we call this ‘Parental Alienation’.  As Childress says “Let’s just call it Bob”.  HH Judge Wildblood has asked the same question – why does it matter what we call it?

What CAFCASS and most lower-court judges seem to want specifically is evidence that the resident parent has bad-mouthed the ‘Target Parent’ to the child.  Well, firstly, that is not required for a diagnosis of PA, and secondly we must remember the words of Dr Amy Baker:

“Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so,” [2]

Consequently, if a child rejects a parent, this should be a BIG RED FLAG for judges and social workers.  They should be saying to themselves ‘hang on a minute, kids do not reject parents…what’s going on here?’  And the answer to that question is ‘Parental Alienation’.

Yes, it’s possible that a child might have a good reason to reject a parent, but even when the child does have a good reason, the child often still does not reject the parent – indeed, this is one of the problems faced by social workers in sexual/physical abuse cases – the child still wants the love of the abusing parent.

Finally, how is any targeted parent going to be able to prove this bad-mouthing?  There is unlikely to be any video or audio recording, and witnesses are going to be hard to come by.  Surely it is enough to infer that this must (on the balance of probabilities) have happened, because “Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so,”.

Look at the case of re L [2019] EWHC 867 (Fam)[3] where the president of the Family Division agreed with the trial judge’s finding that, on the facts, PA or ‘intractable hostility’ had not been proven.  This was a useful decision insofar as the child’s residence was transferred to the Target Parent (in this case the father).  But, no finding of PA.  But these other findings were made:

“In October 2017 L gave an ABE interview to the local police in which he made assertions which, if true, indicated a lack of sufficient sexual boundaries in the father’s home.

And

“In a judgment given on 18 May 2018, HHJ Tolson dismissed the allegations upon which the mother relied and found “to a very high standard of proof that there has been no sexual or physical abuse by L’s father of his son.”

And

“As a result of what he had observed during that process the judge considered that the father’s central submission, namely that his relationship with his son was being undermined by the mother and grandmother, may be made out.

And

“The closing paragraph of the Guardian’s report however included the following statement:

“…I have confirmed in this report that L is safe in the care of (father). (Mother and grandmother) must accept this. They must also accept that they have created a situation where L returns to their care and shares aspects of his spending time that are not necessarily true and they facilitate a manipulation of or put words into L’s mouth.”

And

“The judge observed that the CAFCASS officer went further and suggested that L “could be developing a view that his mother is all good and his father is all bad”.

And

“L described his mother entirely positively and his father entirely negatively. L’s responses to his father during supervised contact appear to show little concern for his feelings and he required no prompting to say that he wanted no contact with his father.”

And there are many other such comments, too numerous to mention here. 

BUT – still no Parental Alienation!

Questions arising:

If these findings do not give rise to a finding of PA, what will?!

Whether or not they do, does it matter?   At the end of the proverbial day the father got the right result and did not have to leave court as yet another ‘tearful and wholly-deserving father’. 

But it does matter.  Cases of Parental Alienation must be identified as such, and PA must be recognised as psychological child abuse.  Perhaps the only reason it isn’t is political.

Paul Massey 24-1-20


[1] https://www.familylawweek.co.uk/site.aspx?i=ed200967

[2] https://www.theguardian.com/society/2016/jul/14/programme-aims-to-help-people-affected-by-parental-alienation

[3] http://www.bailii.org/ew/cases/EWHC/Fam/2019/867.html

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