Abuse, Parental Alienation, and Sorites Paradox – It’s all just semantics…
If you have a grain of sand, that is not a ‘heap’. If you add another, that is still not a
heap. Clearly, the addition of one grain
of sand is going to make no difference to whether or not you have a heap. The problem is that, on this basis, you will
never have a heap. But we know that, at
some point, you WILL have a heap…but when?
That’s Sorites Paradox.
This kind of problem arises all the time in law. For example, it is not legal to have sex if
you are 15 years and 364 days old, but perfectly legal 24 hours later. Where do you draw the line, and on what
basis? Who decides, and why?
The answer seems to be that ‘you have to draw the line
The UK Government has just released some guidance about domestic
abuse. Help is available from the
Department of Work and Pensions (?!).
Who is this help available for?
“The cross-government definition of domestic violence and
any incident or pattern of incidents of controlling,
coercive, threatening behaviour, violence or abuse between those aged 16 or
over who are, or have been, intimate partners or family members regardless of
gender or sexuality. The abuse can encompass, but is not limited to:
There are two things to note here. The first is that domestic abuse does include ‘psychological and
emotional’ abuse. The second is that
this help is available to persons ‘aged 16 or over’.
psychological and emotional abuse aged 16 or over
Well, what reasonable person would argue that these victims
deserve support? Nobody. That much is, surely, uncontroversial.
psychological and emotional abuse aged under 16
The problem with this initiative for STOPPA is that there
appears to be an assumption that people under 16 are already adequately catered
for. We know that this is not
true. Not in practice.
The Psychological and
Emotional Abuse of Children
The law provides plenty of remedies for the punishment of
persons that abuse children.
Let’s start with S 66 of the Serious
Crimes Act 2015, which amends Section 1 of the Children and Young Persons
Act 1933 (cruelty to persons under 16), to add psychological injury to the
offences listed. Simply put, it is an
offence to abuse a child psychologically.
Next, we have S37 of the Children Act 1989, which empowers
the court to make a care or supervision order in respect to any child where, to
do so, benefits the child’s welfare.
This can be read, for our purposes, in conjunction with S43 of the Act,
“Child assessment orders.
(1) On the
application of a local authority or authorised person for an order to be made
under this section with respect to a child, the court may make the order if,
but only if, it is satisfied that—
applicant has reasonable cause to suspect that the child is suffering, or is
likely to suffer, significant harm;
assessment of the state of the child’s health or development, or of the way in
which he has been treated, is required to enable the applicant to determine
whether or not the child is suffering, or is likely to suffer, significant harm”
So, this is all very simple.
It is a criminal offence to abuse a child psychologically,
and (separately, or in conjunction with this sanction) the court can order an
investigation and, if necessary, order that the child be taken into the care of
a Local Authority if it is of the view that there is a risk of ‘significant’
harm to the child.
So far, so good. Good
theory. What about in the real world?
In practice, as so often with the law, we come down to
semantics. And this is where Sorites
rears his ugly head. Legal books are
filled with cases that address the issue of semantics. What does ‘reasonable’ mean? What does ‘subjective’ mean? What does ‘objective’ mean? What does ‘semi-objective’ mean? What does ‘country’ mean, and so on. The rest of the world seems to know instinctively what ordinary words mean, but the law
must be precise. So countless cases are
heard in courts all the time that attempt to define terms that most of the rest
of us take for granted.
This is right and proper.
For your idea of ‘green’ might be different to mine. Your idea of what constitutes a ‘table’ might
be different to mine and so on. The law
is there, amongst other reasons, to define terms.
In this context,
we have to decide the meaning of two common English words – “psychological” and
And, again, we are faced with the age-old problem that we
all have different ideas about what these words mean. This is where the law is exposed as a
somewhat clumsy interpretative and definitional tool. Because you might ask 100 judges what
“significant” means on any set of facts, and get 100 different answers. You might ask 100 different experts what set
of facts would amount to “psychological” harm and get 100 different
answers. It all depends on the facts of
But surely there are some cases where everyone would agree
that the child has suffered, or is suffering, “significant” harm. And there are. But there is also a whole truckload of cases
where, as laymen, we would say “surely this harm is significant” and judges
seem to go quiet on the issue.
There will also be cases where ordinary people would regard
harm as psychological or emotional where a judge might say “well, yes, that might
be some kind of harm, but it is not
serious enough to be classified as psychological.”
Is the harm caused by
PA “significant” and can it really be described as “psychological”?
If the answer to both of these questions is “yes” then,
logically, there should presumably be a large number of prosecutions under the
Serious Crimes Act, and a large number of children taken into care following
the psychological abuse caused by PA, right?
But there is not.
So, it follows that somebody somewhere does not feel that PA
causes psychological harm, and/or that any harm so caused is not “significant”.
Who are these
Well, those that determine whether there is a possible breach of the criminal law are
the police and the CPS (Crown Prosecution Service). Whether there is an actual breach, and a criminal offence, is decided by judges, juries
Those that determine whether children need to be protected
under the Children Act are judges guided, crucially, by social workers.
A good place to start is the case of re W  EWCA Civ 772.
This is a case where Lord Justice Ryder gave the leading
judgment. He thought that, on the facts of this case, the harm
suffered by the child was “significant”.
Lords Justices Underhill and Laws agreed.
The Facts of the Case
The child in question was an eight-year-old girl. Judge Cardinal (a County Court Judge sitting
as a High Court Judge) had ruled that the girl should be removed immediately
from the care of her mother. The mother
asked for permission to appeal. The
child was represented by a Guardian. The
Guardian, the father and the Local Authority all opposed the appeal.
At a finding of fact hearing in December 2010
the court concluded that the child had been sexually abused by her paternal
grandfather. There was then a further finding of fact hearing before Judge
Cardinal that immediately preceded the child’s removal on 11 November 2013 and
which dealt with further serious allegations made by the mother against the
Judge Cardinal made the following findings. He
held that the mother
1. (i) had wrongly suggested that the child did not want to
see her father, and was frightened by him;
2. (ii) had knowingly sought to prevent the child from
having a relationship with her father by putting pressure on her about seeing
him, and by putting obstacles in the way of contact;
3. (iii) had deliberately and wrongly sought to exclude
father from school events and being involved in the child’s life;
4. (iv) believed that the father was involved in the child’s
abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and
had informed others of her belief;
5. (v) misled the court by saying that it was the child
rather than herself who struggled with the grandfather’s abuse;
6. (vi) deliberately put the worst interpretation on events
to place obstacles in the way of the father’s contact;
7. (vii) encouraged the child to
make false allegations against her father because of her own fear of contact
(which the child did at her mother’s behest despite being a daughter who
delights in seeing her father);
8. (viii) had told the child about
alleged domestic violence on the parties’ separation to influence the child
against her father and to cause her to make similar allegations;
9. (ix) is out of control, believing her own propaganda and
convincing the child of it: creating a situation that is deeply concerning –
the child was and is subject to influences which she should not be;
10. (x) is worryingly obsessed by the abuse of the child by
her paternal grandfather to the extent that she had unfairly taken an adverse
view of the father and worked against his contact at every opportunity, save
when she could police it herself. Her reluctance to let him develop a natural
relationship with his daughter was plain for all to see; and
11. (xi) had encouraged the child to have an unhealthy
attitude towards her father, to make untrue allegations, to know more about
sexual matters and about the case than was good for her with the consequence
that her emotional and psychological progress had been damaged.
The judge concluded that the child had
suffered significant emotional harm in her mother’s care within the meaning of
section 38 CA 1989 and that her psychological safety required her immediate
removal from that care.
The mother argued that there was no risk to the child that
necessitated immediate separation, that removal of the child was
disproportionate, that the mother’s care was better than ‘good enough’ and that
she had had insufficient notice of the possibility of the child’s removal.
Lord Justice Ryder held that there was no procedural
unfairness. He further held that
“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.”
He said “I ask the question rhetorically:
given the court’s findings, how could the judge leave the child with the
The mother’s appeal was dismissed.
The reason that this case is such a good starting point for
our purposes, is that, given Judge Cardinal’s findings of fact, this child was
clearly suffering significant harm at the hands of her mother. STOPPA argues that there can be no serious
argument about that.
The question that arises, then, is this:
Are the facts in this case so much more serious than other
cases that have not been regarded as
involving serious emotional/psychological harm?
If not, then we must ask why more cases are not moved into
the public law arena, moving children to local authority care. (We will leave aside, for the moment, whether
such a move does actually serve the best interests of the child).
If this case is really serious and so much more serious than other cases, what is
it about this case that ‘tips the balance’?
What if the damage in
this case were just a bit less serious?
We see above that there were 11 findings made by the judge
that, collectively/cumulatively ‘tipped the balance’. Here comes Sorites again… What if one of these were removed? Or two?
Or five? See the problem?
This is why cases have to be decided on their own facts,
some would argue.
However, we could also argue, just as effectively, that the
balance should be tipped, and the harm regarded as “significant” if just some of the key findings were replicated
in other cases. In other words, we could
and should use cases like this to provide, at the very least, guidelines as to what might constitute
“significant” harm for the purpose of the Act.
Our telos should be certainty.
Certainty is a worthy goal. Not
always easy to achieve, of course, but children need it in their daily lives,
and litigants need it in their dealings with the courts.
Let’s look at finding 7 – to remind ourselves:
“7. (vii) encouraged the child to make false allegations
against her father because of her own fear of contact (which the child did at
her mother’s behest despite being a daughter who delights in seeing her
Let’s suppose that this were the only finding of fact – that the other 10 findings were just not
Could it be said that encouraging a child to make false
allegations of sexual abuse against her father (or anyone else) amounts to
“significant” harm to the child? To
emotional/psychological abuse? STOPPA
intends this question to be rhetorical.
Is it possible that such encouragement could NOT be abusive? Is it possible that, being abusive, it could not be regarded as “significantly” so?
What about finding 8?
“8. (viii) had told the child about alleged domestic
violence on the parties’ separation to influence the child against her father
and to cause her to make similar allegations;”
We could go on. The
point is that every time a judge makes a finding like finding 7 or 8 it should
not be difficult to conclude that there is significant emotional/psychological
harm to the child.
So – are there other cases where such findings were made,
and, if so, was an order under SSs 37 – 43 of the Act then triggered? And if not, why not? And, crucially what do we do if such harm is
found to have occurred? Well, get the
child outta there for a start! Moved to
Local Authority care? Maybe, if there is
some kind of risk to the child at the other parent’s house. Moved to the other parent, if there is no
risk and safeguarding procedures have been conducted? Of course!
Are there other cases
involving false allegations against the TP?
According to Families Need Fathers, false allegations are made somewhere
between 48% and 63% of the time. Looking
at the case
law, you might think this figure to be higher. At all events, false allegations are very, very commonplace in PA cases. This is not open to serious doubt.