I was fortunate enough to be invited to the NAGALRO’s ‘So-called Parental Alienation’ conference which took place virtually in March 2024. Chaired by the formidable Professor Jo Delahunty KC, this conference offered an overview of this complex and polarising concept. I attended NAGALRO’s conference due to my research interests in the way in which the Family Court manages and identifies cases in which parental alienation is alleged. Having researched the concept of parental alienation from the perspective of how it is identified and managed in the Family Court, I was acutely aware that, as observed by Doughty, Slater and Maxwell ⁽¹⁾, ‘research in this area is dominated by only a few authors who appear polarised in their acceptance or rejection of the nature and prevalence of parental alienation.’

With an interesting line-up of speakers, including some who speak regularly on the concept of Parental Alienation, this conference sought to offer interesting and varied perceptions.

Speakers

Throughout this conference, it was acknowledged that parental alienation is a controversial and polarising topic within the family justice system. Nevertheless, it is a concept that continues to be raised within proceedings and, as was identified by Dr Julie Doherty ⁽²⁾ it is raised in cases predominantly as a kind of counter-claim to allegations of domestic abuse ⁽³⁾. It is abundantly clear that the concept of Parental Alienation may well be used as a litigation tactic within Family proceedings. However, this remains and is likely to remain a polarising topic.

Whilst the Family Justice Council are seeking to streamline the way in which the Family Court deals with allegations of Parental Alienation (now termed as Alienating Behaviours), the concept of alienation remains a polarising and difficult area for the Family Court. Offering a selective overview of the international research, Dr Julie Doughty highlighted that despite the polarised views surrounding the concept, the research discussed in her talk did not deny that some parents do emotionally manipulate their children against the other parent.

As the conference drew to its close, Julie Doughty considered the question ‘should the term Parental Alienation be banned?’ Pointing out that the concept was unlawful in Spain, Doughty felt that it was now too late to consider banning the term Parental Alienation but that the focus should shift towards taking away the diagnostic element.

Following Dr Julie Doughty, delegates heard from Sarah Parsons, CAFCASS’ deputy director for Improvement and Principal Social Worker about the work CAFCASS undertakes and the role they play in the identification and management of this concept. Referring to parental alienation as a form of domestic abuse, Sarah Parsons boldly stated that courts ignore domestic abuse against women in favour of parental alienation and that ‘alienation concerns are listened to whereas Domestic Abuse concerns are minimised, referred to as ‘conflict’ and treated as historic – assertions which appeared to be general statements rather than being supported by evidence. Whilst giving limited information as to how CAFCASS should be dealing with such cases, Sarah Parsons gave some insights into how CAFCASS are refreshing the child resistance/refusal section of the Child Impact Assessment Framework.

It was suggested by Sarah Parsons that, in due course, CAFCASS and Family Justice Council will be saying the same thing, although it was pointed out to Ms Parsons that the Family Justice Council guidance has not yet been published (it has to be noted however, that CAFCASS’ approach to parental alienation thus far can be traced back to the research undertaken by Richard Gardner – the psychiatrist who ‘developed’ Parental Alienation Syndrome and the father of the controversy surrounding the concept).

The Domestic Abuse Commissioner was the next speaker, who focused her talk on the need to focus on changing terminology and made the valid point that the Court and professionals cannot look at parental alienation until they understand the context of the family. Highlighting the problematic way the Family Court currently approaches allegations of parental alienation – in parallel with allegations of domestic abuse – the DAC called for a focus on the sequence of looking at allegations. The overriding theme being that the Family Court’s focus is on dealing with cases quickly rather than properly.

Acknowledging that professionals working within the Family Justice System – including the court – have adopted some difficult and bad ways of working, the DAC called upon all those who work within the system to take responsibility for addressing this.

Optimism is offered, according to the DAC, with the drive for transparency in the Family Court as well as initiatives like the Pathfinder project currently being piloted in a number of courts.

Aleisha Ebrahimi stood in for the Domestic Abuse Commissioner following her presentation and, as the conference drew to its close, also considered the question ‘should the term Parental Alienation be banned?’ It was clearly stated that the Domestic Abuse Commissioner does not support use of the term due to, in part at least, the subtag words attached to it which were not child centric language. It was observed that we have an advanced legal framework and we should use it.

Moving to hear from Jenny Beck KC (Hon) with a frank discussion about some of the problems faced at the coalface of dealing with cases of this nature, it was acknowledged that whilst there is a need for collaboration, it is not easy to achieve due to the belief in some quarters that Parental Alienation is a pseudo-science. The need for robust guidance which is consistently applied was highlighted, with there being ‘much more heat than light’ surrounding the concept with it restricting the ability to progress.

Calling for a need to unpick our practises, Jenny Beck is alive to the practical difficulties faced by practitioners with a need for a clearer landscape and a clear view as to the sequence of dealing with these difficult cases.

Sharing the concluding remarks of the Domestic Abuse Commissioner, Jenny emphasised the need for all of us take responsibility for the harm being caused to children, with those in the Family Justice System being too quick to appoint self-proclaimed experts. In a closing remark which is supported by my own doctoral research, Jenny told delegates that the way in which the court deals with allegations of parental alienation ‘feels like a lottery and it shouldn’t.’

Fielding questions towards the end of the question, Beck considered, albeit briefly whilst posing it to others, ‘should the term Parental Alienation be banned? ’The view held by Beck was, essentially that we should seek to uncouple the term from the behaviours.

Florence and Dr Rachel.

A powerful part of this conference, Florence is a child who spoke to delegates about her own experiences of being a child at the centre of proceedings where it was said she was being alienated from her father by her mother. The message from Florence was loud, clear and compelling: she did not feel heard by the Court or the professionals within it, she lacked trust in the system and did not trust CAFCASS.

Towards the end of the conference, Florence posed the question: how can we do better? Florence identified three things which professionals working with children could do better: We should be coming from a place of believing a young person. We should be consistent in what we say. And, finally, we should not assume that we have a deep understanding of what a child wants after minimal contact as this is potentially misleading.

Florence’s mother, Dr Rachel, followed and emphasised that there is a valuable lesson to be learnt by the misapplication and misunderstanding of the concept of parental alienation due to the devastating consequences it can and does have.

Dr Rachel’s closing remark summed up my own thoughts perfectly: we must work together and not in silos.

The Family Justice Young People’s Board followed, again focusing our attention that children are at the heart of the work we do in the Family Justice System. Calling upon professionals to avoid making assumptions, the FJYPB highlighted the impact of delay upon the children and young people who at the centre of the Family Court’s decisions. Offering an incredibly useful and insightful discussion, those who heard the Youth Justice Board speak heard first hand what children are likely to need from those professionals working with them.

Those working in the Family Justice System should not seek to normalise the delays which are encountered in proceedings.

Dr Jaime Craig concluded the presentations by discussing the contribution of psychologist expert witnesses to the Family Court. Dr Craig has played a significant part in the formulation of the Family Justice Council’s eagerly anticipated guidance on Alienating Behaviours as well as being Policy Director for the Association of Clinical Psychologists and was, therefore responsible for the submissions made during Re C. Compelling and authoritative, Dr Craig highlighted that there may be times when the Family Court would be assisted by the evidence of an expert psychologist and offered delegates an insight into what a ‘good’ psychological report should contain.

Dr Craig told us that an assessment of risk and harm must come from findings made by the court.

Responding to Florence’s comments, Dr Craig observed that we have to have a level of professional neutrality but this should never stop a child feeling listened to, understood and believed; the voice of the child should not be silenced. Sadly, we operate in a system where it is easy to overlook the fact that we are dealing with complicated family situations.

In response to the question ‘should the term Parental Alienation be banned? ’Dr Craig told delegates that he had agonised over banning the label, expressing his view that Parental Alienation Syndrome is ‘garbage’. Expressing the clear view that there is a need, now, for specificity when talking about allegations and to be able to evidence harm. Reminding professionals that we need to be specific about allegations of harmful behaviour and evidence the consequent harm. Drawing on earlier comments from Professor Jo Delahunty KC, Dr Craig reminded us that we have to think of this as we would in a public law case. Whilst Dr Craig acknowledged that Parental Alienation could be a form of emotional and psychological abuse, encapsulating Parental Alienation within the definition of emotional and psychological abuse was too broad a definition and would, in all likelihood cause more problems.

Whilst providing delegates with invaluable nuggets throughout the conference, Professor Jo Delahunty KC offered us one key message: we must not make children the object. They are the subject. We must not lose sight of this.

Asking delegates rhetorically why private law proceedings are treated so differently to public law proceedings, Professor Delahunty KC urged us all to go back to basics in the way we deal with these difficult cases.

What became apparent following my attendance at this conference was that this is indeed a concept that is polarised and remains polarised. The observations made by Doughty, Slater and Maxwell remain as relevant now as they were in 2018 – the only difference appears to be the level of ferocity deployed by each side of the debate. I felt that this conference represented a missed opportunity to encourage open debate, promote collaboration and bring people together who all appear to have a common aim: better outcomes for children.

Following the conference, questions were asked as to my own motivation for attending and my own stance on the issue of parental alienation (I had appeared on a podcast which pre-dated the FJC consultation in which I expressed the view that it is a matter for the court to ‘find’ parental alienation, rather than an ‘expert’ – a standpoint I first adopted in 2021 in an article published by Family Law Week – but because I did not make specific reference to the concept from the child’s perspective and the impact of it upon the child’s welfare, my standpoint was viewed with scepticism, with an invitation to write a review of this conference for NAGALRO withdrawn within days of the conference). I wish to make it clear in this article that, working at the coalface in the Family Court on a day-to-day basis, the concept of Parental Alienation is one that appears in the court on a regular basis, if not daily. The Family Court, in my experience and according to the research that I have undertaken in this field over a number of years, struggles to identify and manage allegations to presentation in any consistent way. The private law aspect of the Family Court is broken. There needs to be a wholesale review of the way in which the Family Court manages allegations of Alienating Behaviours and, quite frankly, the guidance to be issued by the Family Justice Council will only be a starting point.

Without collaboration, we are likely to see any FJC Guidance shouted down by its vociferous detractors. Within the Family Court, from the judiciary downwards – including the majority of professionals across disciplines – there is a fundamental misunderstanding as to what this concept is and how it should be managed in a consistent way. Only in March of this year did I come across a case in which a CAFCASS Guardian, two teams of solicitors and two barristers invited a court to approve the instruction of a psychologist to ‘identify, diagnose and find evidence of parental alienation.’⁽⁴⁾ This instruction was subsequently approved by a Family Court Judge. When things like this continue to happen in the light of the President’s decision in Re C, the contradictory approach taken by Keehan J five months later in Re A and B (Children: Parental Alienation) (No. 5) [2023] EWHC 1854 (Fam) and what is contained in the Family Justice Council’s draft guidance is quite frankly staggering and only serves to highlight the state of chaos which exists within the private law arena of the Family Court.

There are many critics of the concept of alienation. There are many say that it does not exist. They may be right. However, that does not detract from the Family Court’s difficulty in managing those cases and having to grapple with the allegations that are made in a consistent way. Whilst judges continue to deal with these cases in an incredibly inconsistent way, as evidence by my research when professionals working in the Family Court on a daily basis refer to it being a Judicial lottery and a matter of luck whether you will get a judge who ‘gets it,’ the need for effective collaboration, education and training across all aspects of the Family Justice System could not be clearer.

Whilst judges continue to rely upon the evidence and training given by those who have an invested interest in the Family Court dealing with cases in a particular way ⁽⁵⁾, there is always going to be a state of confusion and while some unregulated experts are relied upon by the Family Court to determine and diagnose, the difficulties are simply compounded. We are always going to end up in difficulties and the Family Justice Council guidance, when it eventually appears, is not going to be worth the paper it is written on. Jenny Beck hit the nail on the head when she predicted that we will look back at the untold damage we are causing families. Attitudes must change. Collaboration must take place.

One of the barriers that I identify in relation to the Family Court difficulties and dealing with this concept is the polarisation and the hitherto reluctance or refusal to collaborate with those on all sides of the fence. What this issue requires is the involvement, consultation and collaboration of all of those voices who are speaking loudly about this concept so that all can be heard instead of silenced. Whilst research tells us that Parental Alienation is raised in response to allegations of Domestic Abuse in 90% of cases, we cannot forget the 10% where Parental Alienation may be a relevant issue – given the numbers of children involved in private law proceedings each year, we may be looking at a significant number of children.

It is difficult to see how the introduction of the Family Justice Council guidance (coming hopefully in Autumn 2024) will provide all of the answers which are desperately sought; I think we can all be confident that the debate surrounding this concept will continue. I sincerely hope that there can be constructive debate and collaboration with all those on all sides of the debate and I call upon those organisations with sufficient standing to bring people together and remind us that we all have one clear aim: better outcomes for the children ultimately served by the Family Court.

Ian McArdle

June 2024

(1) Doughty, J., Slater, T and Maxwell, N. Review of research and case law on parental alienation, April 2018 – https://orca.cardiff.ac.uk/id/eprint/112511/1/review-of-research-and-case-law-on-parental-alienation.pdf

(2) Dr Julie Doughty has undertaken several pieces of work around Parental Alienation, including co-authoring a review of the case-law and research at the request of CAFCASS Cymru.

(3) Lapierre, S., University of Ottawa.

(4) This is a direct quote taken from the Letter of Instruction which was commended to a court by a CAFCASS Guardian and approved by a Judge.

(5) During the course of my doctoral research, I was informed by one interviewee that the Judicial College has received training from an organisation whose approach is wholly contrary to the approach endorsed by the Family Justice Council; an organisation who specialises in the ‘diagnosis’ of alienation and subsequent ‘therapy.’ A Freedom of Information request to both the Judicial College and the Office of the President of the Family Division went unanswered.