CHILDREN AND ‘PSEUDO-SCIENCE’: PARENTAL ALIENATION IN THE FAMILY COURTS 

Published on 20 December, 2024 | Sarah Manning

The breakdown of a relationship between spouses, civil or cohabiting partners can be unpleasant, simply in terms of the emotional discomfort which it can create.

However, when parents split, regardless of the formality of their domestic arrangements, the sensitivities are naturally heightened.

It is something that family courts and the law are very much alive to.

That is why the legislation which governs the process of determining what happens thereafter – the Children Act 1989 – leaves no room for doubt about where the focus should be.

“The child’s welfare”, it explains, “shall be the court’s paramount consideration” (https://www.legislation.gov.uk/ukpga/1989/41/section/1).

Yet, sadly, there are instances when parents caught up in disagreements which come before the courts lose sight of their responsibilities to protect children from those disputes.

Figures published by the Ministry of Justice (MoJ) earlier this year revealed that this friction has become more frequent (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2024/family-court-statistics-quarterly-april-to-june-2024#children-act—private-law).

Applications for two types of court orders often sought in order to resolve such differences – Prohibited Steps Orders and Specific Issue Orders – have risen by 25 per cent in just five years.

Establishing the factual basis of disputes can be difficult, especially when parents accuse each other of misconduct.

In recent years, one recurring allegation has been that of parental alienation: a situation in which a mother or father attempts to turn children against their other parent.

The issue has occupied much court time and been the topic of considerable debate.

Now, the Family Justice Council (FJC) – an advisory body established to monitor the workings of family courts and make suggestions about how they can work more effectively – has produced a new report offering guidance on how claims of parental alienation should be treated (https://www.judiciary.uk/guidance-and-resources/family-justice-council-has-published-guidance-on-responding-to-a-childs-unexplained-reluctance-resistance-or-refusal-to-spend-time-with-a-parent-and-allegations-of-alienating-behavi/).

It follows input from judges, lawyers, academic experts and members of the public – a consultation which the FJC’s Chair, Sir Andrew McFarlane, who is also the President of the Family Division of the High Court, has described as one of the largest in the Council’s history.

The study, says Sir Andrew, is important because the issue of alienating are “polarising” and “divisive”.

Clarity is needed, he adds, “to improve outcomes for children and families and to

protect children and victims from litigation abuse.”

The report certainly doesn’t pull any punches.

“For the avoidance of doubt”, it states, “the Family Justice Council (FJC) recognises that ‘parental alienation syndrome’ has no evidential basis and is considered a harmful pseudo-science”, albeit one which is “increasingly exploited within family litigation”.

Those seeking to argue that their former spouse or partner really has turned a child against them needs to be able to prove that has happened, “just as other acts of abuse must be evidenced”.

Whilst concerns were voiced during the consultation that allegations of parental alienation are used as another form of abuse or control once a relationship has ended, the FJC makes a definitive distinction.

“There is no equivalence”, the report insists, “between domestic abuse and Alienating Behaviours. Domestic abuse is a criminal offence and both a parent/carer and a child may be a victim”.

The FJC has also acknowledged that, if not careful, an accusation of parental alienation can lead to the opinions of children involved being dismissed. Just because a child is frustrated or doesn’t agree with proceedings, it doesn’t mean that they have been manipulated.

Overall, the guidance is a useful reminder of the need for all concerned to treat parental disputes with care and caution.

One of the consequences in pursuing parental alienation claims via the courts is that the voice of the child is often overlooked.

That is because such allegations can serve to derail proceedings and cause considerable delays in resolving matters, something which is not always in a child’s best interests.

Again, data from the Ministry of Justice shows that those matters concluded between April and June this year took 43 weeks on average.

Sir Andrew McFarlane remarked in July, that delays “have the potential to make matters worse rather than better for a child” (https://www.judiciary.uk/guidance-and-resources/a-view-from-the-presidents-chambers-july-2024/).

He is a keen proponent of families resolving disagreements away from court and via methods such as mediation.

As a trained mediator myself and someone who is a specialist in cases featuring allegations of parental alienation, I know how individuals regard mediation as being far less stressful than being in court.

It can allow for a more constructive and less adversarial examination of issues and, therefore, can result in difficulties being settled far more quickly.

That is one reason why further MoJ data shows a annual rise in individuals engaging with the mediation process (https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2024/legal-aid-statistics-england-and-wales-bulletin-apr-to-jun-2024).

Mediation does not in itself, of course, prevent allegations of parental alienation being made in the first place but child-inclusive mediation means that the opinions of children can be determined early on in the process.

It entails speaking to both parents and the children involved, and enables a mediator to consider if the child’s views are being taken sufficiently into account and whether one parent is trying to alienate the other.

If the latter is the case, then mediation may not in the end be the most suitable way to resolve the differences which exist.

However, the FJC’s strongly-worded report and an appreciation of the damage which unfounded claims can do will hopefully cause individuals to approach disagreements with a renewed focus on achieving the best and quickest outcome for their children.