Parental Alienation: The North / South Pole Divide…

Parental Alienation is a concept which continues to occupy the thoughts of academics, lawyers, judges and almost every other kind of professional who works within the Family Justice System. The spectrum of thoughts and beliefs could not be starker, and debates continue to be polarised: spending only a few minutes scrolling through Twitter firmly proves this point.

There is renewed vigour concerning the debates around Parental Alienation with the publication of the UN General Assembly Report of the Special Rapporteur on Violence Against Women and Girls, which will fall to be considered during the 53rd session of the UN Human Rights Council in June 2023. This report, published a fortnight or so ago, is being circulated around Twitter by many involved in the discourse around Parental Alienation, referring to this report as ‘groundbreaking’ and one that ‘must be heeded by governments around the world,’ including the UK Government. With the cloak of respectability afforded by the UN General Assembly, it is easy to see why this report may carry credibility and weight.

But is this report credible? Does this report carry weight? Will it change the current landscape? Is it even realistic?

I am afraid that my answer to all of these questions has to be ‘no.’

Whilst the Special Rapporteur’s report highlights the absence of a commonly accepted clinical or scientific definition (and why would there be? It cannot be forgotten that both the ICD and DSM refused to include Parental Alienation in their respective directories), it is similarly recognised that ‘it has gained considerable traction and has been widely used to negate allegations of domestic and sexual abuse within family Court systems on a global scale.’

Referring to Parental Alienation as a pseudo-concept and seemingly accepting that Parental Alienation (as defined by Gardner) is discredited and unscientific, the Special Rapporteur essentially makes a series of recommendations which, if accepted, would effectively require States to completely overhaul their Family Justice Systems. More pertinently for the purposes of this article, however, it recommends that ‘States legislate to prohibit the use of parental alienation or related pseudo-concepts in family law cases and the use of so-called experts in parental alienation and related pseudo-concepts.’ (Emphasis added).

And this is where, with all due respect to the Special Rapporteur, she falls into error.

I have written previously about how the use of the label ‘Parental Alienation’ can be unhelpful. I have written previously how I believe, as a result of extensive (and objective) research as well as years practising in this area of law, that bogging the Family Justice System down in labels, concepts or pseudo-concepts can create confusion, promote delay and impede the Court’s ability to make decisions with the welfare of the child as its paramount consideration. In those circumstances, the Court can expend significant time and energy grappling with what is meant by Parental Alienation, without actually looking at the actual behaviour alleged. We do not expend such significant time and energy seeking to understand what is meant by domestic abuse, for example, as all of those working in the Family Justice System ought to understand that it is not necessarily the label we attach to something which is important: it is the behaviour which the Court needs to understand.

I say ‘ought to understand’ because it seems[1] that with Parental Alienation, the rule book has been thrown out of the window and everyone is trying to reinvent the wheel. The Family Court is extremely familiar with determining and understanding the behaviours which people demonstrate: it has spent many, many years doing just that. The Court of Appeal recognised this in Re H-N [2021] EWCA Civ 448 at [11] when it observed that ‘the task of engaging with and determining allegations of domestic abuse is at the very core of the everyday work of the Family Court; it is what Family judges do.’

So why are allegations of Parental Alienation being treated so differently in the Family Court?

In my opinion, they should not be. I have previously written about how the Court should focus on the behaviours it is presented with rather than focus on the labels someone tries to attach to them.  This opinion was given some weight in the recent decision of the President of the Family Division in Re C (‘Parental Alienation’: Instruction of Expert) [2023] EWHC 345 (Fam) when the Court endorsed the approach of the Association of Clinical Psychologists (which, without wanting to appear smug is entirely consistent with my 2021 article) when the Court quoted the ACP:

“Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.”

It is against this backdrop that I do not believe the approach recommended by the Special Rapporteur is realistic – it is a recommendation borne out of a belief that Parental Alienation is a weapon used against women. Whilst there is widespread criticism that Parental Alienation has been medicalised and weaponised, it is now being feminised. Whilst I concede that there is research which supports the proposition that women face allegations of Parental Alienation more than men, it has also been recognised that men can (and do) alienate children from their mother (in both separated and intact families[2]). But the feminisation of Parental Alienation serves to do nothing but add to the controversy – it continues with the polarisation of the concept. And the inevitable conclusion of all this controversy? Continued debate, continued indecision, continued controversy, continued delays and poorer outcomes for the children the Family Court has at the forefront of its mind.

In my view, the solution to all of this is to abandon labels. Abandon controversy. Abandon weaponising, medicalising and feminising concepts. Focus on the behaviour.

Approach Parental Alienation in the same way the Court approaches allegations of Domestic Abuse: Practice Direction 12J provides practitioners with a useful blueprint.

In the Family Justice System, we are fortunate enough to have a number of toolkits, all designed to be flexible to allow them to be adapted to fit (as best they can – they are not perfect) each family who requires them.

As lawyers, we are trained to adapt the tools we are given to fit the problems we are called upon to fix.

Is our toolkit perfect? No. Can any toolkit be perfect? Absolutely not.

But we have one. We must abandon debates about pseudo-concepts and ill-judged calls to legislate against concepts which have no agreed definition (how can you do that anyway?) and use the tools we have. Behaviour is key. We need to focus on that.

[1] In my opinion, a significant problem which hampers meaningful debate and progress regarding Parental Alienation is the sheer number of so-called ‘experts’ and organisations seeking to bring about change. All appear to want what is best for the children concerned but all are (ferociously) pulling in different directions and very few are willing to consider other points of view.

[2] Mone, J. G., & Biringen, Z. (2006). Perceived parent-child alienation: Empirical assessment of parent-child relationships within divorced and intact families. Journal of Divorce & Remarriage, 45(3-4), 131–156. doi:10.1300/J087v45n03_07

Read more about Magdalen Chambers here.