Sadly, we frequently see cases involving the most entrenched parental conflict and cases of alienation.
- What is parental alienation?
- What is the effect?
- Not always parental alienation
- What can you do?
- Non-court based dispute resolution
- Application to the court
- Child Arrangements Order
- Finding of Fact Hearing
- Section 7 welfare reports
- Experts/R16.4 Guardians
- Don’t delay
- What if you have concerns about parental alienation?
Sadly, we frequently see cases involving the most entrenched parental conflict and cases of alienation. These cases can be extremely complex, involving several professionals and detailed assessments of the family, which can be difficult for all concerned. Those looking after the welfare of children have been aware of the destructive effects of parental alienation and, growing interest from the public, social worker sector and the courts has put the issue centre stage. So what do we mean when we say “parental alienation”?
What is parental alienation?
The term was coined by Psychiatrist, Dr Richard A Gardner, to explain a situation where one parent attempts to turn the couple’s child or children against the other parent. He defines it as:
“...a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the childs campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parents indoctrinations and the childs own contributions to the vilification of the target parent.”
Its recognition as a syndrome in the US is highly disputed in this country. The definition of ‘parental alienation’ in the UK remains under debate. However there is a consensus that alienating behaviours can include denigrating or belittling the other parent, limiting or withdrawing contact, forbidding discussion about the other parent or creating the impression that the other parent dislikes or does not love the child.
These behaviours sit on a continuum of mild to severe with varying impacts on the child, the most serious being the child aligns themselves with the alienating parent and rejects their relationship with their other parent without legitimate justification.
What is the effect?
Dr Edward Kruk reports that:
“The biopsychosocial-spiritual effects of parental alienation are devastating. For both the alienated parent and child, the removal and denial of contact in the absence of neglect or abuse constitutes cruel and unusual treatment. As a form of child maltreatment, parental alienation is a serious child protection matter as it undermines a basic principle of social justice for children: the right to know and be cared for by both of ones parents.”
Not always parental alienation
Just because one parent has objections to contact taking place with the other parent does not necessarily mean there is alienation afoot. If a parent has a justifiable reason why contact with the other parent would not be safe for the child or in that child’s best interests, then it is unlikely to be alienation.
What can you do?
The key thing is to understand the difference between alienation and justifiable reasons for withholding contact and to ascertain the real reason contact is being denied.
Non-court based dispute resolution
If you have concerns in relation to contact taking place between the other parent and the child or children then these should be communicated to the other parent as soon as possible. If agreement outside of court proceedings is not possible and you have already considered non-court based dispute resolution methods such as mediation, collaborative law and arbitration and considered these as not suitable for your situation, then you will need to issue an application to court seeking a child arrangements order.
For more information about non-court based options, please refer to our podcast.
Application to the court
Similarly, if you suspect parental alienation exists within your family and if such matters cannot be resolved using the methods set out above, then an application for a child arrangements order should be issued. Whether the situation is so hostile that you are seeking a change of residence so that the child or children live with you, will depend on the individual circumstances of your case. To address parental alienation, you must be able to prove it is taking place, which will come down to oral evidence and contemporaneous evidence of the incidents which make you believe it is happening.
Child Arrangements Order
A child arrangements order (also known as “CAO”) is the term for an order which sets out with whom the child or children should live with and spend time with. Before you issue an application to court, you will need to attend a Mediation Information and Assessment Meeting (“MIAM”). It isn’t mediation but, rather, a meeting that explains the mediation process to you and explores whether it could be of some benefit to you and your situation. If the mediator considers mediation is not appropriate they will provide you with the MIAM exemption form, which you are required to attach to your court application. The court wants to be satisfied that you have at least considered non-court options to resolve your dispute.
Finding of Fact Hearing
If there are allegations of harm being levied at one parent or both, then a finding of fact hearing can help to determine the factual matrix of a case. To make a finding in a fact finding hearing, a judge will ask the parties to lodge statements where they explain their allegations in detail and Scott Schedules, which act like a summary table of the allegations contained within the statement.
The court may also ask for disclosure of police records, medical records, school records and any other contemporaneous evidence that might assist the court in making a determination.
A finding is made in a fact finding hearing where the judge is sure, on the balance of probabilities, that the incident alleged happened i.e. they have to be 51% or more sure that the incident took place. Sometimes a judge may decide that an incident took place, but they might not accept every detail alleged by the victim. A finding will either be made out or it won’t be in relation to each allegation. This information can then feed into welfare reports, which can assist the court in deciding whom a child should live with and spend time with.
Section 7 welfare reports
Section 7 welfare reports are reports prepared by independent social workers where the court has ordered a report to be prepared in accordance with section 8 of the Children Act 1989. If there has been no local authority involvement with the family for the past three months then this usually falls to CAFCASS to prepare, who are the Children and Family Court Advisory and Support Service. They provide an independent evaluation and assessment of a situation and report their findings to the court.
It often includes the social worker talking to the child or children, depending on their age and level of understanding, about their wishes and feelings and what they would like to happen. They try to talk to the children alone at a neutral venue such as their school and will speak to both parents, and sometimes to extended family members, teachers and health workers. CAFCASS will never ask your child or children to make a decision to choose to live with you or the other parent.
CAFCASS officers have to carry out at least an initial assessment and part of this includes identifying any risk of emotional harm to the child. The role of CAFCASS is to establish the impact of what has happened to the child concerned and to make recommendations to the court as to what, if anything, should be done to reduce or end any harmful impact upon the child.
CAFCASS have a framework known as the ‘High Conflict Practice Pathway’ (“the Pathway”) which will sit alongside existing practice tools such as the ‘Impact of Parental Conflict Tool’ which includes 10 indicators which officers use in identifying and analysing the emotional impact of parental conflict on children. It is hoped the Pathway will help to identify these harmful adult behaviours early on in a case and help officers to distinguish between those cases of parental alienation and those where there is a justified rejection of a parent, by a child, due to that parent’s harmful behaviour.
If you are unhappy with the report prepared by the social worker then it is important that the court is aware of your concerns so that these can be factored into their decision making. If there are any factual inaccuracies contained within the report, then it is important these are raised with CAFCASS as soon as possible.
If you are within court proceedings and have a CAFCASS officer appointed, then speak to them about the ‘Positive Parenting Programme’ which is aimed at cases involving medium levels of parental conflict where both parents are open to working with professionals. The 12-week programme for families aims to reduce parental conflict and emotional harm to children.
CAFCASS say it encourages parents to place themselves in their children’s shoes to understand the effect of their behaviour and uses restorative principles to help children recover with the support of both parents where possible. It will not be suitable in all cases and currently the programme is not available to families outside of court proceedings.
If parental alienation is being alleged and the court considers that evidence from a Clinical Psychologist is necessary to be able to resolve the proceedings, then a single joint expert can be appointed to assess the child or children and/or parent for any signs of parental alienation.
However, the court will not appoint an expert if you simply have a suspicion. You will need to be able to back up your reasons for believing parental alienation is occurring with detailed examples and if possible, contemporaneous evidence.
The court can make a direction under rule 16.4 of the Family Procedure Rules to make the child or children a party to the proceedings. When this happens a guardian is appointed for the children to give the court an independent view of what is happening. Guardians are professionally qualified social workers independent of the local authority. The guardian will also instruct a solicitor to represent the children and they are responsible for presenting the child’s case in court. The guardian, similar to CAFCASS, will meet with the family, study any records, statements and prepare a report with their views and recommendations.
There is a ‘no delay’ principle in Children Act Proceedings as delay is considered prejudicial for children. It is vital that you don’t wait to take action until a lot of the damage has already been inflicted, because you could find yourself in a situation where, although the other parents conduct is so severe as to warrant a change of arrangements so that the child or children should live with you, ultimately if the relationship with the child or children is damaged irreparably (examples might be their running away whilst in your care, truanting from school and generally acting out) then dependent on their ages and the individual circumstances in the case, the court might find that it would do the child or children more harm forcing them to live with a parent they do not want to live with, than to not have a relationship with the other parent. The court’s paramount consideration is always the welfare of the child.
If caught early enough and if you’re able to prove parental alienation exists within the family then, in extreme cases, if the court does not believe the other parents behaviour will change, they can order a change of residence so that the child or children live with you and spend time with the other parent on either a supervised or unsupervised basis.
What if you have concerns about parental alienation?
There are practical things you can do:
- seek legal advice at the earliest possible opportunity as to the options available to you;
- listen to your child, allow them a safe space to express their feelings and be patient;
- document in detail the examples of parental alienation;
- see if your child will speak to someone about how they are feeling, such as a teacher or GP, either within your presence or separate to you, so there can be no accusation of undue pressure;
- early therapeutic involvement for your child or children such as speaking with a counsellor can limit the damage caused by alienation. There are a range of organisations and charities that can provide support to children and families;
- you can try and engage the other parent in family based counselling or mediation to discuss your concerns;
- attempt alternative dispute resolution methods with the other parent to resolve the issues outside of court proceedings;
- report your concerns to the Local Authority or the Police if there is an immediate risk, or 101 if there isn’t but you wish to log the incident; and
- if you are within Children Act proceedings speak to your CAFCASS officer or the children’s guardian.
For help with resolving a dispute involving children, contact our child law solicitors.