Parental alienation is no longer a fringe concept in family courts. It has been the subject of recent press coverage and is now used frequently in court. It is also a term that should be used with caution and is easy to jump to as a parent who feels treated unfairly. Many relationship breakdowns involve one or both parents recruiting children as a weapon which may not be in the child’s best interest but does not necessarily amount to parental alienation.
This article looks at the steps a court may take to combat parental alienation in the face of implacable hostility between parents. This is a particularly difficult, often complicated and sensitive area of family practice. I seek only to highlight the issue, suggest that there are tools that family courts can deploy to deal with it and point out some of the pros and cons of doing so.
What is parental alienation?
I introduce the topic with the words of Sir Andrew McFarlane P, who (in his keynote address to the Families Need Fathers conference 2018) accepted that in some cases a parent can turn the mind of their child against the other parent, deliberately or otherwise, so that the child retains a wholly negative view of that other parent. This heavy paraphrasing at least forms a reasonable working definition.
In response to calls for parental alienation to be included in the definition of domestic abuse, the government has stated that parental alienation is a form of emotional or psychological abuse and as such will be included in statutory guidance about forms of abuse to be issued prior to the Report stage of the Domestic Abuse Bill 2020. This helps provide context, although I suggest that while the target of the abuse may be one parent by the other, the victims are both the target parent and the child or children in question.
What can courts do about it?
In Re L-W (Enforcement and Committal: Contact); CPL v CH-W and Others  1 FLR 1095, CA Munby LJ set out guidance for cases where one parent is implacably hostile to the prospect of the child spending time with the other parent. There must, he says, be judicial continuity, judicial case management (including effective timetabling), a judicial set strategy and consistency of judicial approach. Whilst implacable hostility is not the same thing as parental alienation, it is clear that the latter can often derive from the former. The guidance holds good for both situations.
Where there are suspicions or accusations of parental alienation, the court should consider a finding of fact hearing before any report under section 7 of the Children Act 1989 (s7 report) is ordered. In Re J (Children) (Contact Orders: Procedure)  EWCA Civ 115,  2 FLR 998, the Court of Appeal reiterated that a failure to determine underlying facts, including arguments made by a parent about alienation, means the court will not be in an informed position to decide what would best meet the needs of the children.
Assessment and s7 Reporting
In 2018, Cafcass published a new assessment framework for private law cases. The assessment contains a section headed ‘Typical behaviours exhibited where alienation may be a factor’. This tool allows for parental alienation to be explored as part of a s7 assessment where there has been a finding of fact in that regard. As with all Children Act matters, the s7 report is often heavily influential in determining the appropriate course of action to resolve the issue, as a result the ability to identify alienation is key to ensuring action.
Often the court will decide that the child should be represented and joined as a party to the proceedings under Family Procedure Rule (FPR) 16.2. An intractable contact dispute is specifically mentioned in section 7.2(c) of PD 16A as one of the circumstances that can justify making an order for the child to be separately represented. The guardian appointed to represent the child may well provide a view as to any expert evidence needed.
Transferring residence from one parent to another
The welfare of the child or children is paramount. If necessary, the court can (and will) change a child’s living arrangements by reference to the welfare checklist in section 1, Children Act 1989. It is quite obvious that it may be highly disruptive for a child to move homes, as a result the court will always be hesitant to do this. For an application to succeed, the court will need to be satisfied that the long-term benefits of such a change outweigh the short-term disruption.
In, Re M (Children) (Ultra-Orthodox Judaism: Transgender Parent)  EWCA Civ 2164,  2 FLR 800, Sir James Munby highlighted the court’s views in no uncertain terms, stating that (I paraphrase) the court does not hesitate to act robustly where it is in the child’s best interests in such cases. He further set out that the court could:
1. make an order transferring residence from one parent to the other. This could be suspended provided the defaulting parent complied with any order for contact.
2. Make the child a ward of court.
3. Make an order under section 37 of the Children Act 1989 for a report from the local authority with a view to commencing care proceedings.
In Re H (A Child) (Parental Alienation)  EWHC 2723 (Fam) and following expert evidence, the High Court ordered an immediate change in the child’s living arrangements, as the mother had alienated the child from his father. The child’s residence was immediately and successfully transferred from the mother to the father, despite the child having no direct contact with his father for 18 months.
The decision highlights that in parental alienation cases, where the child has previously had good quality contact with the alienated parent, an immediate transfer of living arrangements can be successfully achieved with appropriate therapeutic support, notwithstanding an 18-month absence of direct contact.
Transfer of the children between the parents is not always a success however. In Re A (Children: Parental alienation)  9 WLUK 445, proceedings under the CA 1989 were withdrawn after the mother had alienated the children from the father and there had been a failed transfer of residence. The mother had demonised the father and alienated the children from him, although there was no evidence that father was unsuitable to have contact with them. Proceedings lasted eight years, with 36 court hearings and ten different professionals involved.
The case highlights some of the problems that the court will need to be aware of before making such a transfer. Problems such as a failure to identify early that the children were being alienated. By the time parental alienation was established, it was too late for effective intervention, and the children’s views were entrenched. Other problems included the limitations of indirect contact where letters, cards and presents were sent to a home environment where father was demonised, and there being too many professionals involved over an extended period of time.
An expert report may recommend therapy and psychological interventions for both the child and alienating parent that avoid the need for such drastic steps and would always be a preferred solution if likely to improve the situation.
Any intervention in the lives of children can have far-reaching consequences. Action by the court must demonstrably be in the interests of the children’s welfare. There is an organised and well laid out approach that practitioners (and parents) can take in the face of parental alienation which starts with identification, moves through recommendation and leads to action. Of course, that action must be proportionate, can be incremental and should, where necessary, be robust.
I have attempted to provide a low-resolution overview of what is a high-resolution area of law. As a result, I have skimmed the surface of case law (missing out lots of interesting cases) and loosely paraphrased judgments. For those with an interest, I thoroughly recommend a proper read.
The Children Act is a specialist area of family law. If you require advice or assistance, do not hesitate to contact firstname.lastname@example.org.