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How do the family courts consider parental alienation?

Images by Gareth Jones

BETWEEN 1 April 2023 and 31 July 2023 13,155 new private law children’s cases were issued at the family court. Each case looking for a judge to make a decision for their family.

These new court applications involve nearly 20,000 children. 20,000. That is the capacity of the main stand at Anfield. Add in the parents and suddenly the whole stadium is full.

Each of those children are looking for a solution for a family dispute. Very often – but not exclusively – it is because their parents cannot agree on the right answer. It could be where a child is going to live. It could be because there is a dispute as to where a child is going to go to school. Or a holiday. Two parents. Two different points of view. Two potential outcomes.

Absent any middle ground or successful mediation, a Judge will be asked to find the answer using legal principles (the child’s welfare should be paramount in any decision making) and considering the welfare checklist.

In these cases, the court is often asked to resolve adult issues around disputed facts. These could involve allegations of domestic abuse or parental alienation.

What is parental alienation?

Parental alienation is often described as an ongoing pattern of negative attitudes, beliefs and behaviours of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent. Allegations of parental alienation can cover a wide range of behaviours.

A recent BBC investigation has found that ‘dozens of children have been forced into contact with fathers accused of abuse’. In all of those cases considered, the concept of parental alienation was advanced by the parent who was not seeing their children. This seemingly increasing trend has put the concept of parental alienation under scrutiny not just by the BBC but also the Family Justice Council who are consulting on draft guidance as to how such allegations ought to be considered by the court.

The concept of parental alienation is clearly an evolving aspect of the family justice system as reflected by the appeal reported this week that reminded the courts that it is for the judge to determine whether or not a parent has alienated a child should be a question of fact to be resolved by the court – and not a diagnosis offered by an expert witness.

The child’s best interest

It is important to remember that the court’s starting point in resolving a dispute in respect of a child is very often that it is in a child’s best interest to have a positive relationship with both parents. Compelling reasons will be needed for a conclusion to be reached that such a relationship is not in their welfare interests.

Of course the courts used to be assisted by both parties being legally represented which very often narrowed issues and ensured that the best evidence was before the court in making the decision about a child particularly in the context of disputed facts. The 2012 legal aid changes has resulted in a lot more self-represented parties whose case is not tested against legal advice before arriving at court.

Reaching the right decision for a child is never easy, particularly in a family justice system that has been put under sustained pressure over many years. Care is needed to not unduly weight the welfare analysis in favour of one particular aspect but to allow judges to holistically evaluate what is in the best interests of a child and whether there are cogent reasons for restricting a relationship of a child with their parent.