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Parental alienation and disputes about children

August 27, 2021 Speech Box

Our colleague Louise Barretto, Head of our Family team was interviewed on Thursday this week on BBC Radio 4’s Woman’s Hour, discussing parental alienation, a term growing in use and increasing in frequency in cases involving disputes about children.

Parental alienation can occur when the child is psychologically manipulated by one parent against the other.

In cases where there are children and the relationship between the parents breaks down, and they are unable to agree arrangements, it is well known that the Courts invariably stipulate how much time a separated parent can have with his or her children.

The legal and practical issues arising from parental alienation have come under review in recent years, with many sharing the opinion that it is a form of child abuse that should be dealt with like any other form of neglect or abuse and should be treated as a criminal offence.

The Child Arrangements Orders have been severely tested for some of our clients during the lockdown period on the pretext that it has not been safe for the separated parent to spend time with their children.

The Courts have a duty to try everything possible to enable children to have a relationship with both their parents after separation unless it is not safe for them.

Sometimes, if the children have experienced domestic abuse and high conflict between their parents they may align themselves with one parent, often expressing reluctance to spend time with the other.

It is thought that this happens when the children have divided loyalties and find it easier to “split”. This is believed to occur as the child’s protection mechanism kicks in to try and avoid further conflict. The lockdown restrictions have provided a perfect storm for more such cases to arise.

However, if a Child Arrangement Order is in place, but being deliberately manipulated to prevent the separated parent seeing their children, we may need to seek the Court’s determination whether this is the case, on the grounds of acting reasonably in light of the government’s many twists and turns of its ongoing guidance over COVID-19.

Last year’s judgement of Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 provides for a good working definition of parental alienation, and a useful warning on the impact delayed proceedings will have on parental alienation being further ingrained and too late to reverse.

When a child refuses to go willingly to see the other parent, psychologists or psychiatrists are sometimes engaged to establish the root of that reluctance, and they may conclude that it is the behaviour of the parent with care that has consciously or subconsciously “alienated” the child from the absent parent.

In some cases, it will be obvious and intentional behaviour that leads to this reluctance. Those are the less complex cases. Where it is unintended and subconscious, things are rather more complex.

In an earlier case, Re H (Parental Alienation) [2019] EWCH 2723 (Fam) the trauma that children can suffer from being alienated from a parent, and the extreme measures the Court is prepared, if necessary, to take, reminds all Family lawyers of the need to seek the support of trained specialists urgently to diagnose what is going on so that effective measures can be taken quickly.

In the case of Re H (reported here) direct contact between son and father had stopped, and it became apparent from the dramatic change in the child’s messages to his father that he was reflecting the mother’s conflictual relationship with the father, and was prioritising her needs above his own.

In this case the psychologist determined that “therapeutic intervention aimed at restoring his relationship with his father whilst in the care of his mother was ill advised”.

Justice Keehan made a Child Arrangements Order for a change of residence, and placed a three month embargo on the mother’s direct contact. The Court concluding that whilst a three month temporary change of residence would cause the child distress, in comparison to the trauma he was suffering from the alienation of his father it was the lesser of two evils.

There have been many papers written about this subject and yet it remains one of the most difficult for our courts to resolve satisfactorily. There are really only a limited number of approaches that a Court can take when faced with a true parental alienation scenario. The first is to make orders for contact, try and enforce them, and as an absolute last resort make an order that the child lives with the “absent” or “alienated” parent. The second approach often involves therapy for the parents, the whole family and the child, usually with psychologists or psychiatrists.

In the meantime, well before a clinical diagnoses of parental alienation takes place remember children have the right to maintain a relationship with both parents, where it is safe to do so.

If you are affected by similar issues or would like to have a related discussion in confidence, please call me on 020 7091 2869 or email lbarretto@bishopandsewell.co.uk

Our Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in both Chambers & Partners and the Legal 500 for their expertise. 

The above is accurate as at 27 August 2021. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.

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