Family Law: Parental Alienation
By Joanna Abrahams, 18th July 2016, The Law Society Gazette
'Parental alienation' is a widely recognised phenomenon in North America but we have a long way to go.
The courts in England and Wales are slowly becoming exposed to a phenomenon known as ‘parental alienation’. In fact, it is being progressively recognised throughout the courts.
But there is much work to be done because lawyers, and the country’s judiciary, are still in the embryonic stages as to how to identify and address it.
To sum up, parental alienation is where a parent knowingly (or, as importantly, unknowingly) is in a position where their child’s wishes and feelings are intrinsically linked to their own with regard to contact with, or even their views on, the other parent. Or to use the playground vernacular, it is where one parent ‘turns’ the child or children against the other.
Parental alienation is now illegal in Brazil and is widely recognised in the US and Canada. But in England and Wales there is some way to go.
Parental alienation is not recognised as child abuse under our jurisdiction, although campaign groups say that needs to change, with some claiming it should be made a criminal offence. What one has to recognise is the effect on the child of this implacable hostility. Frequently, the inability to put the child’s feelings and needs above those of the perpetrator is something the perpetrator is unable to do. There are, therefore, strong arguments to suggest that parental alienation is indeed a form of psychological abuse.
Within our courts we are seeing progress. High Court judgments are now being passed using the words ‘parental alienation’, but it is an expression still rarely heard in the lower courts where many legal professionals seem slow to acknowledge the phenomenon. Why is this? And what needs to change?
The problem starts with the ability to identify parental alienation. The courts will start on the premise that contact is in the best interests of the child unless there are reasons for it not to take place, and we frequently leave the recommendations to be made by the social worker (most often a Cafcass officer but, on occasion, an independent social worker) which will then guide the court when making orders.
Cafcass officers are an invaluable source of assistance to the court and without them the family system would come crashing down. This should, therefore, in no way be seen as a criticism of the amazing work that the Cafcass team do for our clients and their families, but rather an observation about how we can improve matters.
There are plenty of Cafcass officers who simply do not have enough exposure to, and therefore experience in, parental alienation. And yet too often, particularly in the lower courts, Cafcass officers are asked to provide an expert analysis, when what is required is a skilled mental health practitioner with experience in parental alienation. It needs to start with a lawyer who acknowledges the existence, and understands the implications, of this phenomenon. It then requires skilled practitioners to be brought in to identify it.
But if you want to bring in such experts you need a court order, and that can also be a stumbling block. High Court judges tend to deal with more severe cases often involving child protection issues and are seemingly more open to accept an application for experts, such as psychologists, to be instructed.
In the lower courts, however, they will often turn towards social workers and Cafcass rather than allow an expert qualified in mental health to be brought into the proceedings, under the misapprehension that the social workers are appropriate to the case.
It is our job to raise awareness of this phenomenon and to invite the courts to make the appropriate direction.
We then come to a third problem, specific for our clients: their financial ability to gain access to both psychologists and lawyers who have the requisite understanding of parental alienation.
If a child arrangements application is made to the court, for the child to spend time with the absent parent where alienation is suspected by the practitioner, one would need to advise on the submission of a Part 25 Application (currently on a C2) being filed subsequently. The Part 25 Application will contain details of (normally) three experts together with their CVs, costs and timescales.
This information is invaluable if an application is to be made for an expert to assist, so that the court, and of course the other party, can consider the options available.
But a key issue is the funding of experts if a Part 25 Application is successful. For families from poorer backgrounds or litigants in person, this can be very challenging. For these people it is vital that the targeted training of social workers is a priority to ensure their families have a better chance of having parental alienation recognised and addressed.
I accept that the world of parental alienation is one in which we are all finding our way. But the quicker we can raise awareness and understanding, the better for all involved. When parents are implacably hostile the court may consider whether the children need separate representation, but this can lead to exposing children to too many professionals.
By issuing proceedings there is also the risk of the aggrieved parent pushing the child even further away, as the hostile parent becomes even more hostile. One must explain this risk and be alive to it.
If a diagnosis is given, then proper targeted therapy is the next stage. My concern is that in order to save costs or, perhaps in a misguided attempt to reduce conflict, therapy is often recommended at the beginning. However, it is like sticking a plaster on an open wound, leaving a festering sore underneath which simply will not go away without proper diagnosis and proper treatment first.
One would hope that lawyers (including the judiciary) and social workers could have some targeted training from psychologists, psychiatrists or psychotherapists to enable us to understand how this works, so that we do not look to punish but rather to treat the situation.
We still have a long way to go but the key issue is going to be understanding that parental alienation exists and accepting the fact that we need help in how to address it. There have always been intractable contact disputes. However, what I and many practitioners are hoping for is a shift in the approach to addressing these disputes so that psychologists, psychiatrists and psychotherapists can assist in diagnosing why contact is not happening.
Strategies can then be put in place with regard to the reimplementation of contact, so long as it is in the best interests of the children.
Joanna Abrahams is head of family at Setfords, Guildford