Posted: 25/01/2023
The UN recently announced that it will be investigating what appears to be a growing, and perhaps concerning, link between child arrangements and guardianship cases, and violence against women and/or children. It is intended that there will be a particular focus on concerns that the concept of ‘parental alienation’ is being used as a weapon in proceedings, and as a ‘shield’ to deflect and minimise allegations of abuse. There are also concerns that the way in which courts in numerous countries are dealing with these issues is resulting in a double victimisation of domestic abuse sufferers.
A previous article, providing an overview of parental alienation, is available to read here. This article was written following the conclusion of a lengthy and complex children dispute in which allegations of alienation were made, and upheld, against the mother. Interestingly in that case, no allegations of abuse were made against the father.
Since then, many family law practitioners, myself included, have noticed a rising trend in claims of parental alienation and similar arguments. Specifically, there has been a correlated increase of allegations of parental alienation being made against women who have themselves made accusations against a partner of domestic abuse.
Having worked on numerous cases involving allegations of alienation, the UN’s attention to this area is welcome, and it is likely that the outcome of the investigation will provide vital guidance and insight into how family courts around the world should approach situations where alienation is raised alongside abuse.
The classification of behaviours as ‘parental alienation’ seems to have risen out of research in the 1980s about ‘parental alienation syndrome’. The research remains contentious almost forty years later. Despite the controversy, CAFCASS has defined alienation as being ‘when a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’. This definition was adopted by the Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, and was deemed sufficient by that court.
However, such a definition provides significant scope for subjective interpretation, and the courts are becoming increasingly reliant on experts to assess and diagnose alienation. Alongside the concerns raised by the UN and others, including Women’s Aid, about the weaponization of alienation, concerns are also increasing about the use of parental alienation ‘experts’ in these complex cases and the outcomes – sometimes extreme – that are being implemented based on their reporting.
The Guardian has covered the unsuccessful appeal by a mother who was assessed by an unregulated expert as having alienated her children. The appeal was unsuccessful despite the Association of Clinical Psychologists UK expressing their own concerns about unregulated experts being used. Clearly a professionally endorsed, standardised set of criteria to be applied to parental alienation experts would be welcome. Should the courts insist, for example, on the experts in alienation cases being trained in one of the areas of psychology regulated by the Health and Care Professions Council (HCPC) as a minimum?
In the interim, family law practitioners can actively impact on these issues by scrutinising carefully those instances where alienation might have been alleged as a tactical shield to allegations of abuse, and also insisting on, advocating for, and employing a higher standard of expert witness when expert involvement becomes necessary in their cases.
Wherever possible, solicitors should look to the recommendations of the relevant professional body and apply a rigorous approach when considering what qualifications should be demanded of experts in these cases. At present, many expert reports produced in children cases have been authored by independent social workers with little or no psychological training or experience. Difficult arguments about the suitability of an expert may, at best, lead to increased costs and delays in family proceedings and, at worst, result in life-changing decisions about the care of children being made upon insufficient recommendations.
Labels aside, it remains the case that hostility between parents is harmful to children, and needs to be addressed at the earliest possible stage in a family breakdown.
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