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Ian McArdle discusses Parental alienation and Parental alienation syndrome

Barrister Ian McArdle attempts to rescue us from the quagmire of conflicting definitions around this subject and suggests a way forward for family courts.

The journey continues

Parental alienation (PA) and parental alienation syndrome (PAS) are concepts that the family court is faced with on a regular basis, yet are concepts that are little understood and inconsistently applied. This article seeks to explain why we are in the position we are in with this premise and how we may navigate ourselves out of the quagmire that has been created.

I should start out by observing that there is no universally accepted definition as to what PA/PAS actually are and this is a significant problem, given the number of times the family court is called upon to determine cases in which it is said to be a feature.

Where it all began

The roots of PA/PAS can be traced back to 1976 when Wallerstein and Kelly identified the concept of parental alignment following which Dr Richard Gardner published his views on PAS. It is the views of Dr Gardner that kickstarted the debates on PA/PAS and have, arguably, fuelled the controversy that surrounds the concepts. While Gardner described PAS as a ‘psychological disturbance in which children are obsessed with deprecation and criticism of a parent which is unjustified and/or exaggerated,’ it should be noted that PAS is not the same as the concept of PA, although the two concepts are often conflated with the terms being used interchangeably. While there is a lack of empirical research on the concept, it is said that PAS is a symptom of PA with the latter being described as ‘the unwarranted rejection of the alienated parent and an alliance with the alienating parent, characterised by the child’s extreme negativity towards one parent due to the deliberate or unintentional actions of the alienating parent so as to adversely affect the relationship with the alienated parenti.’ Continued conflation only contributes to the controversy and debates that surround the concepts and risks hindering research in the area.

While PA and PAS have been raised widely in American courts, the case of Re Land Others;; was a pivotal moment in the approach to be adopted by the English courts. The court had heard evidence from Dr Ludwig Lowenstein, a psychologist who had written extensively on the concepts of PA and PAS and considered himself to be an expert on these theories. He was a firm proponent of Dr Gardner’s work. At first instance, the court observed that Dr Lowenstein had been closely associated with the recognition of PAS. The Court of Appeal expressed the view that Dr Lowenstein was at one end of a broad spectrum of mental health practitioners, and relied upon the report of Sturge and Glaser when saying that PAS is not recognised in either the American classification of mental health disorders or the international classification of disorders. The court rejected the evidence of Dr Lowenstein, and the Court of Appeal did not interfere with this and quoted the judge:

‘I cannot accept the effect of what Dr Lowenstein has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that “long term psychoanalytically informed therapy in the order of years rather than months” is the treatment of choice.’

Despite the Court of Appeal decision in 2000, the family court continues to deal with cases in which PA or PAS is raised. Understandably, it is Cafcass to whom the court turns for assistance. However, I argue that Cafcass is not approaching the matter consistently and is, in some ways, adding to the continued confusion and controversy. The working definition that Cafcass is currently working to was highlighted by Peter Jackson LJ in the case of Re S (Parental Alienation: Cult) [2020) EWCA Civ 568:

‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.’

It should be observed that this working definition appears to cover both PA and PAS, further compounding the difficulties that are being faced regarding the concepts. When this working definition is considered alongside what Dr Gardner described PAS to be, the similarities are clear; both refer to a psychological element to the concepts for example, but it appears to be overlooked that the Court of Appeal has expressly rejected the concept that forms the basis of Cafcass’ current working definition.

An absence of case law

A significant difficulty in gaining greater understanding as to how the family court deals with cases involving allegations of PA is the absence of case law. Throughout the country, the family court will deal with hundreds of cases each year in which allegations of parental alienation are raised, yet very few are reported. Dr Adrienne Barnett highlighted this issue in her article for MAGISTRATE in June 2020 when she undertook an analysis of all official reported and published court judgments in which PA or PAS were raised or referenced. Between 2000 and May 2019, this generated just 40 cases. This is likely to be because many cases involving PA/PAS are heard by tiers of the family court who do not publish their decisions. In my experience, magistrates’ decisions and the reasons for such decisions are never published, very few district judge judgments are published and only a few circuit judges publish their judgments. It is therefore exceptionally difficult to undertake any meaningful analysis of case law as the canvas which can be surveyed is far too small to provide any meaningful insight into how the court responds to such cases. Rather, it is only when cases appear in the senior courts that judgments are published, and even then they ‘tend to take the form of a post-mortem examination of a lost parental relationship’iii with few, if any lessons being learned.

But what lessons can be learned and how can the family court deal with cases in which parental alienation is raised in order to obtain better outcomes for the children the court serves? The answer lies, in part, in Practice Direction 12J of the Family Procedure Rules 2010.

All tiers of the family court are well versed in applying PD12J in cases where domestic abuse is raised as an issue in proceedings, with the court being called upon to identify at the earliest opportunity the factual issues involved. Cases in which PA is alleged are no different and require the court to determine the factual matrix as soon as possible. The need for prompt and effective findings of fact was emphasised by McFarlane LJ, as he then was, in the case of Re J [2018] EWCA Civ 115; and Peter Jackson LJ in Re S refers to the need for the court to make findings before being able to make welfare decisions in respect of the child. Calling upon an expert (such as a psychologist) to determine whether PA is a feature of a case is, in my view, an inappropriate delegation of the court’s function. Further, the court’s use of a psychologist at a stage when the court has not established the factual matrix offers a tacit endorsement that the concept is medical in origin, which it is not. This, I argue, compounds the difficulties the family court faces when dealing with cases involving allegations of PA/PAS.

In my experience, another difficulty that the family court is regularly faced with is allegations of PA being used as a ‘defence’ to allegations of domestic abuse. Unfortunately, not all allegations of domestic violence are trueiv and there are those situations where such allegations are made simply to frustrate a parent-child relationship. Similarly, allegations of alienation are not always true. In such circumstances, my view is that robust case management and judicial continuity are key factors to ensure that the court can separate allegations of domestic violence and PA and determine them appropriately. I accept that particularly in the current climate, this task is not easy.

In my view, it is naive to confine any discussion regarding PA/PAS to the private law arena. The deliberate frustration of a parent-child relationship can expose a child to, and cause, significant emotional and psychological harm which is sufficient for crossing the threshold set out in section 31(2)(b) of the Children Act 1989. It appears social workers employed in the child protection arena may be faced with difficulties, including a lack of knowledge or firm factual matrix from which they can work, as well as polarised positions between parents.

Better outcomes for children and families

For the family court to secure more favourable outcomes for the children and families it serves, I am of the view that we need to ‘go back to basics’ and not become bogged down in labels or concepts. A simplified approach is required: the court should determine the facts of any case as soon as practicable and only then should the court call upon experts, including Cafcass officers, social workers and/or psychologists to assist the court with the welfare evaluation it must conduct.

Given the vast volume of work currently facing the family court, it should not however be forgotten that the court should not only focus on short-term and transient problems but should also take a medium- and long-term view when making decisions regarding the time a child should spend with each of their parents.”

The debates as to what PA/PAS are will continue to take place and will seek to inform how the family court deals with such cases; the need for greater understanding of these concepts will not disappear with a simplified approach, but with greater understanding will come greater outcomes for the children and families the family court serves.

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