Pump Court Chambers

Parental Alienation: practical tips to try and break the deadlock

Blog 15th November 2018

1. Parental alienation is where a parent intentionally (or, as importantly, unintentionally) negatively influences their child’s view of the other parent. Parental alienation is now illegal in Brazil and Mexico and is widely recognised in the US and Canada.

2. Some of the most common signs of parental alienation are:

  • Constantly saying negative things about the other parent;
  • Limiting contact with the other parent;
  • Forbidding / discouraging the other parent being mentioned in the home;
  • Creating the impression that the other parent is dangerous /something to fear;
  • Asking the child to keep secrets;
  • Involving the child in parental conflict; and,
  • Presenting contact with the other parent as a choice.

How should we approach parental alienation cases?

3. The court starts from the premise that contact is in the best interests of the child unless there are reasons for it not to take place. Early identification and rapid intervention is key. The danger with such cases is that they drag on for months / years, with the child(ren) becoming more and more entrenched and exposed to the alienating parent.

4. One of the first questions to ask is ‘is the rejection of the parent justified’? If the rejection is alleged to be based on a factual matrix which is disputed then an early fact-find is essential. The longer an incorrect narrative is allowed to drive proceedings the more likely that factual matrix will take root. In T (Children) [2014] EWHC 2164 (Fam) Holman J emphasises the need for detailed investigation (fact finding) at an early stage.

5. A s.7 report is likely to be required. However, be wary of a purely ‘wishes and feelings’ report. An alienating parent often places huge importance upon the expressed wishes and feelings of a child. In H (Children) [2014] EWCA Civ 733 the court made it clear that it was inappropriate to take expressed wishes and feelings at face value. The court has been clear that in serious cases, the stated wishes and feelings of a child may well be at odds with their overall welfare. The court must scrutinise the context of such views.

6. If you think a Guardian is needed do not hesitate in asking for their appointment, as their appointment will of itself cause delay.

Judicial Continuity

7. Effective case management can prevent the alienation between the child and non-resident parent being exacerbated. Judicial continuity safeguards against the risk of shifting sands in parent alienation cases, in which an alienating parent will seek to advance any possible arguments in order to prevent contact. Remember – allegations that should have been made at an earlier stage should be viewed with appropriate scepticism: Re D (Intractable Contact Dispute: Publicity) [ 2004] EWHC 727 (Fam).

Psychological Assessment?

8. In many cases the way to understand how we have got to where we are, and to identify the right support, is with the help of an expert. The most common avenue is to instruct a Cafcass Officer, Guardian or Independent Social Worker to assist. However, if the facts of the case point to the need for psychological help or assessment, no matter how good your Guardian or Cafcass Officer may be, they are not trained to provide the correct support.

9. If funds are available, but the court is resistant to an expert as it is not the usual course, a helpful case is M (Children) (contact: Long term Best interests) [2005] EWCA Civ 1090, A Part 25 Application should be made promptly, with CV’s and cost and time estimates. Make sure everyone is on notice of your application – no one likes an ambush!

Indirect Contact

10. It is often the case that indirect contact is proposed as the solution. However, other than a short introductory period, it is rare that in fact this will be the answer in high conflict cases and merely serves to create further delay. In W (children) [2012] EWCA Civ 999 the Court of Appeal were clear that the court has a duty to try and restore direct contact.

11. In Re K [2016] EWCA Civ 99 the Court of Appeal disapproved of an order in which the father was only to have indirect contact for an unspecified period of time.

Direct Contact

12. If a Judge has determined that direct contact should take place and that the allegations made against the other parent are unfounded, how is that child told? Any reintroduction will only work if the message is conveyed at home. As such, thought needs to be given to how this is to be achieved. A child friendly Judgment or order? The continued role of Cafcass / Guardian?

13. Such interventions can be achieved by asking the court to make a Child Contact Intervention Order (“CCI”) via an activity direction. A CCI is normally funded through an agreement that Cafcass has with a local provider and can be for up to 12 hours. One of the most useful elements of such an order is that (subject to a risk assessment) such contact is not limited to a traditional community centre. Sessions can take place at the Cafcass Office, in the community or even within family homes.

The Ultimate Sanction

14. A change of residence must not be implemented as a punishment, even when dealing with the most unwilling and hostile parent. It must only ever occur if it is in the child’s best interests. There has been an increasing trend for the courts to make suspended residence orders, meaning that the alienating parent has the lingering threat hanging over their head should they fail to comply. The approach has been approved in M (children) [2012] EWHC 1948 which is worth referring to in an appropriate case.

15. If the court feels that matters have reached the point when a change of residence is necessary, it is not always permissible to immediately switch residence to the alienated parent. and A holding placement, either in foster care or with other family members can be the way forward. The need for such interim placements can be to allow the child(ren) space to try and process what has occurred and to rebuild the relationship with, and transition to living with, the alienated parent.

Family Assistance Order

16. S. 16 of the Children Act 1989 enables a court to make a Family Assistance Order requiring a Cafcass Officer or a named Local Authority to advise, assist (and where appropriate) befriend any person named in the order. This option is a much under used resource and an order can last up to 12 months. The relevant guidance is set out in Practice Direction 12M of the Family Procedure Rules.

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