Review of research and case law on parental alienation
by @julie_doughty Nina Maxwell and Tom Slater,
Commissioned by Cafcass Cymru April 2018
A précis:
THREAD
by @julie_doughty Nina Maxwell and Tom Slater,
Commissioned by Cafcass Cymru April 2018
A précis:
THREAD
*Parental alienation* was first recognised by Wallerstein and Kelly in 1976, but Gardner’s assertion in 1987 that parental alienation was a syndrome - a mental condition suffered by children who had been alienated by their mothers, which has led to debate over the last 30 years.
Despite a wealth of papers written by academics, legal and mental health professionals, there is a dearth of empirical evidence on the topic.
Research is dominated by only a few authors who appear polarised in their acceptance/rejection of the nature/prevalence of parental alienation and no commonly accepted definition, insufficient scientific substantiation regarding identification, treatment and long- term effects
Without such evidence, the label parental alienation syndrome (PAS) has been likened to a ‘nuclear weapon’ that can be exploited within the adversarial legal system in the battle for child residence
Hence, Meier and others (e.g. Bala, Hunt and McCarney, Johnston, Walters & Oleson, Lee and Oleson, Clarkson and Clarkson have emphasised the need to distinguish parental alienation from justifiable estrangement due to abuse, violence or impaired parenting.
AND where parental alienation claims can be far more often used in practice to deny real abuse than to actually reduce psychological harm to children
(Meier, 2009:250)
(Meier, 2009:250)
The remit of this review is parental denial of contact for no rational or justifiable reason, and therefore focuses on law and practice where there are no other issues, such as abuse or the witnessing of domestic violence.
The purpose of the report is to provide an evidence base for responding to disputes where opposition to contact by resident parent or child is unfounded & appears irrational. This reflects category (e) in typology of implacable hostility posited by Sturge and Glaser (2000)
In making a decision about contact under s 8, the court will follow the following principles (Re O (Contact: imposition of conditions [1995] 2 FLR 124):
1. Child’s welfare is the paramount consideration.
2. In child’s best interests to have contact with a non-resident
parent, if safe.
3. Court has powers to enforce orders for contact
4. If direct contact not safe, normally in child’s best
interests to have indirect contact.
2. In child’s best interests to have contact with a non-resident
parent, if safe.
3. Court has powers to enforce orders for contact
4. If direct contact not safe, normally in child’s best
interests to have indirect contact.
Principles derived from & reflect welfare principle in sec 1 Children Act 1989, the right to respect for private and family life Article 8 ECHR, and various articles in the UNCRC. The effect of legislation and case law was summarised by the President in Re C [2011] EWCA Civ 521,
The views of the child
Practitioners in Wales work within a children’s rights and well-being legal framework that pays due regard to a child’s right to participate in decision making about them (Children’s Rights Measure 2011; Social Services and Well-being (Wales) Act 2014).
Practitioners in Wales work within a children’s rights and well-being legal framework that pays due regard to a child’s right to participate in decision making about them (Children’s Rights Measure 2011; Social Services and Well-being (Wales) Act 2014).
As children get older, their evolving capacity means that their UNCRC Article 12 rights to participation gradually increase.
Mabon v Mabon [2005] Thorpe LJ:
In safeguarding Art.12 rights, courtd have to accept (in that case of articulate teenagers) that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.
In safeguarding Art.12 rights, courtd have to accept (in that case of articulate teenagers) that the right to freedom of expression and participation outweighs the paternalistic judgment of welfare.
Judges need to be alive to the risk of emotional harm that might arise from denying a child knowledge of and participation in proceedings.
However, research on children’s views in private law proceedings is sparse.
However, research on children’s views in private law proceedings is sparse.
*Parental alienation* poses a dilemma where adopting a children’s right perspective may be unhelpful if the child has been subject to indoctrination of an alienating parent, yet in breach of their rights if they are forced into reunification with the alienating parent.
A retrospective study of grown-up children’s views of contact (2012) concludes that there was NO EVIDENCE of children resisting contact entirely based on pressure from their mothers, but rather for the child’s own reasoning often attributing blame to the non-resident parent.
Such attributions incl:
➡️lack of parental interest
➡️rejection by a new partner
➡️distance
➡️non-resident parent’s work commitments.
Hence, where resident parent manipulation was reported, this was only in rare cases and primarily from young children.
➡️lack of parental interest
➡️rejection by a new partner
➡️distance
➡️non-resident parent’s work commitments.
Hence, where resident parent manipulation was reported, this was only in rare cases and primarily from young children.
These findings suggest that before a court takes draconian step of overriding a child’s wishes, underlying cause of resistance should be VERY carefully explored to ensure that important information about the child’s relationship with the non-resident parent was not overlooked.
The courts have recognised that even where the balance drawn between a child’s welfare and their right to express opposition to contact has led to a court decision in favour of contact, it may be unrealistic to make orders that cannot be enforced.
Trying to coerce an older child into arrangements to which they are opposed can exacerbate the problem. It may be more meaningful to try to provide opportunities for negotiation (Re S (Contact: Children’s views [2002] EWHC 540 (Fam))
As noted in Re C and Re A, the court’s welfare analysis will apply to child’s current wishes and feelings, but history of their relationships may still be relevant. A sudden unexplained refusal to see a parent should be investigated by the court (Re T (A Child: Contact) [2002]
Courts and parental alienation / implacable hostility
Disputes that have become lengthy and/or serious, in absence of risk of abuse/violence, are often described in a legal context as ‘intractable’.
Disputes that have become lengthy and/or serious, in absence of risk of abuse/violence, are often described in a legal context as ‘intractable’.
Although the term ‘parental alienation syndrome’ (PAS) has been rejected by the courts, an unjustified denial of contact by the resident parent is occasionally described in a court judgment as ‘parental alienation’ and/or ‘implacable hostility’ (Review of Case Law, Section 5.0).
Leading judicial authority on parental alienation ‘syndrome’ (as then described) is Re L, V, M and H (Children) [2000]. C of A accepted expert psychiatric evidence of Sturge and Glaser re argument by non- resident father that his child’s expressed fear of him was a result of PAS.
Court judgment inc part of the Sturge and Glaser report as follows:
➡️ PAS not a helpful concept and the sort of problems that the title of this disorder was trying to address was better thought of as implacable hostility.
➡️ PAS not a helpful concept and the sort of problems that the title of this disorder was trying to address was better thought of as implacable hostility.
➡️ PAS assumes a cause (from misguided/malign resident parent) which leads to prescribed intervention.
➡️ Implacable hostility simply a statement aimed at understanding particular situations, for which a range of explanations is possible, and no single and prescribed solution.
➡️ Implacable hostility simply a statement aimed at understanding particular situations, for which a range of explanations is possible, and no single and prescribed solution.
➡️Basic concept in PAS is a ‘uni-directional one’ of a linear process but factors are, instead, dynamic and interactional with aspects of each parent's relationship to the other interacting to produce ‘the difficult and stuck situation’.
➡️ Possible reasons for a resident parent taking a position of implacable hostility to their ex-and to contact were as follows:
a) Fully justified fear of harm/abduction.
b) Fear of violence/other threat/menace to resident parent.
c) PTSD of custodial parent acutely exacerbated by prospect of contact.
d) Aftermath of relationship- marked imbalance in power.
Fear of being undermined/child used as a weapon
b) Fear of violence/other threat/menace to resident parent.
c) PTSD of custodial parent acutely exacerbated by prospect of contact.
d) Aftermath of relationship- marked imbalance in power.
Fear of being undermined/child used as a weapon
e) Wholly biased hostility not based on real events/experience. May be conscious/ malign or perceived to be true.
There may be a simple wish to wipe slate clean/start again. Can be seen after relationships initially highly romantic/ idealised
There may be a simple wish to wipe slate clean/start again. Can be seen after relationships initially highly romantic/ idealised
Sturge and Glaser used term 'implacable' for all five categories to describe the intensity/unchanging nature of the hostility which any amount of mediation was unlikely to alter.
They noted implacable hostility is often two-way, with the non-resident parent as hostile to the resident parent as the other way around.
However, in the years since their report and the acceptance of the Sturge and Glaser guidelines on contact and domestic abuse, the term ‘implacable hostility’ has tended to be used more narrowly by the courts and sometimes as a synonym for alienation.
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