When parents separate, a child is entitled to a relationship with both of his or her parents, and contact is vital in terms of the child’s successful, long-term emotional development. It follows then that contact should only be terminated in exceptional circumstances. By Donna Roberts
But sadly there are times when one parent will go to extreme lengths to prevent the other from having contact with their child(ren). Parental alienation, as it has come to be known, is a term that has been used with increasing frequency in the debate over child contact, following the separation of the child(ren)’s parents. It is, in effect, the phenomenon whereby one parent poisons their child against the other, the ultimate aim of which is to persuade the child to exclude, permanently, that parent from their life. However, It is important to note that there is still no universally accepted definition of the term.
The Children Act 1989 recognises this in Section 2A where there is a presumption that, unless the contrary is shown, the involvement of a parent in the life of the child concerned will further the child’s welfare.
“The termination of a child’s contact is always a last resort, and should only be considered when it is clear that it would not be in the child’s welfare interests to pursue it.”
What is the High Conflict Pathway?
In situations where the parent who has the care of the child seeks to turn that child against the other parent, in order to prevent contact from taking place. CAFCASS has introduced a High Conflict Pathway to try to manage such cases. It is worth noting what The Right Honourable Lord Justice McFarlane, President of the Family Division, said in his keynote address to the Families Need Fathers Conference in June 2018:
“From my experience as a first instance judge, albeit now more than seven years ago, I readily accept that in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. Further, where that state of affairs has come to pass, it is likely to be emotionally harmful for the child to grow up in circumstances which maintain an unjustified and wholly negative view of the absent parent. Page 6 of The Women’s Aid research describes accusations of parental alienation being used against women who raise concerns about domestic abuse, to the extent that allegations of abuse are “obscured by allegations of parental alienation against the non-abusive parent.”
Let’s take a look at the case of D (child–parental alienation) The court considered the CAFCASS Pathway and the typical behaviours exhibited in parental alienation, which include:
- The child’s opinion of a parent is unjustifiably one-sided, all good or all bad, idealises one parent and devalues the other
- Vilification of rejected parents can amount to a campaign against them
- Trivial, false, weak and/or irrational reasons to justify dislike or hatred
- Reactions and perceptions are unjustified or disproportionate to parent’s behaviours
- Talks openly and without prompting about the rejected parent’s perceived shortcomings
- Revises history to eliminate or diminish the positive memories of the previously beneficial experiences with the rejected parent – may report events that they could not possibly remember
- Extends dislike/hatred to extended family or rejected parent (rejection by association)
- No guilt or ambivalence regarding their attitudes towards the rejected parent
- Speech about rejected parents appears scripted, it has an artificial quality, no conviction uses adult language, and has a rehearsed quality
- Claims to be fearful but is aggressive, confrontational, and even belligerent
Where contact is in dispute, it is imperative that the court identifies at the earliest possible stage the level of risk to the child, and whether the lack of contact is due to parental alienation, or as a result of historical domestic abuse or other risk factors, where a parent is seeking to safeguard him/herself and the child.
How should the court identify and manage such cases?
Where there are allegations of domestic abuse, there is a procedure to ensure that matters are dealt with without delay. At the First Hearing Dispute Resolution Appointment (FHDRA)the court must consider whether domestic abuse is raised as an issue and, if this is the case, there are clear guidelines for the matters which must be considered.
A similar procedure should be encouraged to consider parental alienation alongside any other allegations of domestic abuse or risk. The CAFCASS Pathway assists with this process in terms of identifying the risks to the child posed by parental alienation.
The next stage would be for the court to hear the case in order to consider the allegations made. Unfortunately, a real difficulty that often arises, both in terms of parental alienation and domestic abuse allegations, is the lack of immediate court time to hold a finding of fact hearing in order to determine what the actual level of risk is.
The President of the Family Division in his keynote address in June 2018 stressed the importance of fact-finding:
“It is, as I have already observed crucial, both to the interests of the alleged victim and, in fact, to those of the alleged perpetrator, for any significant allegations of domestic abuse to be investigated and determined as matters of fact, similarly any significant allegation of “alienation,” should also be laid out before the court and, if possible, determined on the same basis’.”
Delays in fact-finding, and the court process, can result in the parties becoming entrenched, with the resident parent believing that they are in control of contact, and the absent parent feeling frustrated and angry at the lack of progress. This is particularly problematic when there has been a break in the child’s contact with the other parent. The longer the delay in the decision-making, the harder it is to move a case forward.
In situations of delay, achieving a remedy becomes more difficult due to the continued influence placed upon the child and the consequent unwillingness of the child to entertain contact. These difficulties are significantly increased as the child hits adolescence. Time is therefore of the essence.
Judicial continuity in intractable contact cases is vital
Once a court determines that parental alienation is the primary reason for the lack of contact, careful consideration must be given to all of the options available to the court, including the transfer of residency of the child or a Section 37 direction for an interim care order, which could result in the child being temporarily placed in foster care. The court should not be afraid to consider these options as short-term distress may result in long-term welfare benefits to the child. Consideration should also be given at this stage to the need for independent expert assessment and/or therapeutic intervention.
In the event that the court determines that the child’s welfare dictates that he/she should remain with the resident parent, then there must be the clearest of orders for contact, which sets out the consequences of a breach, and a judgement should always be made available to support the orders made.
Enforcement of child arrangement orders must be treated as urgent applications, where the court must again give careful consideration as to whether the child’s residence needs to be reconsidered, as, by this stage, it is likely that all else will have failed.
Ultimately, the court must consider all of the available remedies before reaching a decision that contact cannot be achieved. The termination of a child’s contact is always a last resort and should only be considered when it is clear that it would not be in the child’s welfare interests to pursue it. Even if direct contact cannot be achieved, indirect contact must be carefully considered, in order to keep some measure of the relationship between the parent and child alive.
