Parental Alienation in the Family Court

Parental alienation in the family court has hit the headlines recently, in the more attention-grabbing titles seen below. These articles and programmes detail the investigations made by the BBC in respect of mothers who have had their children removed by the family court and placed into the care of the fathers, due to findings (legal determinations of fact) that the mothers were alienating the children against the fathers.

The BBC coverage has been as follows:

• Article: Children forced into contact with fathers accused of abuse
• Article: Family courts: ‘We kidnapped our kids from abusive dads and fled the UK’
• Programme: Mums On The Run: Failed By The Family Court

From the perspective of a family lawyer dealing with these issues in practice, this article sets out some thoughts on the recent coverage as well as the legal cases that have caused, or contributed to, the media interest.

To use the words of Cafcass (the Court’s family/children advisory service), parental alienation is ‘the unjustified resistance or hostility from a child towards one parent as a result of psychological manipulation by the other parent.’ 

https://commonslibrary.parliament.uk/research-briefings/cbp-8763/

It is complex to pinpoint ‘alienating’ behaviours, which might be subtle and entirely subconscious for the ‘alienating’ parent. What seems to be universally accepted is the harm that it causes to children.

This is entirely fact/case dependent. In some cases where serious alienating behaviours were found, children have been removed from the alienating parent and placed with the other parent, some having no contact with the alienating parent at all. This is a very extreme, and rare, outcome, and one which does warrant careful scrutiny and transparency for the public. A Court making the decision about the child’s living arrangements must, in every case, consider carefully every possible option, weighing up and balancing the child’s specific needs and interests under what is termed the ‘welfare checklist’ (found at section 1 of the Children Act 1989).

With such a life-altering outcome as a possibility, clearly the family court requires a high level of ‘proof’ to make a finding of alienation. The Judge is not able to observe for themselves the daily life of a family in their home. Instead, they must rely on the testimony of the parents, the wishes/feelings (as far as they can be ascertained) of the children and the professional opinion of experts tasked to meet with all family members and prepare a report for the proceedings. The latter, i.e. the experts, is where much recent controversy has arisen.

An expert’s report is usually highly important evidence and influential to the Court. The reasoning is clear to understand from a legal perspective:

• Usually the parties will have agreed on which person will be instructed. They will have had an opportunity to look into the person’s credentials and satisfy themselves that this is who they would like to effectively trust to give their opinion.
• There are prescriptive rules about the appointment of an expert in the family court. These include that the Court must be satisfied that the expert has the relevant experience to advise on the matters being put to them.
• There are processes in place for parties, and the Court, to challenge the evidence given by the expert.
• The expert is subject to further rules including only advising on matters within their expertise and, importantly, their neutrality. They must be objective.

An expert’s evidence is influential in a parental alienation case in particular due to this neutrality. The evidence from the parents will likely be polarised – usually each parent points the finger at the other – and there is a risk that the children’s views will be tainted by influence.

A number of recent reported cases have dealt with ‘unregulated’ psychologists in particular, and the potential danger of their being instructed in family cases. For brevity, only two will be looked at – one being a leading recent authority from the President of the Family Court in England and Wales, and the second having been published in the last few weeks.

Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam)

A decision of the President of the Family Court of England & Wales, Sir Andrew McFarlane, was published in February. It was a mother’s appeal against a decision which prevented her from challenging the findings of alienation made against her, which had led to her children being removed from her care. The findings had been made following a ‘plainly influential’ expert report that concluded serious alienation by the mother.

Although the appeal was unsuccessful, for a number of reasons including that the Judge relied on other evidence, not only the report, and properly balanced the welfare checklist, the Court issued guidance on the instruction of unregulated psychologists as experts in the family court. That guidance will not be repeated here, suffice it to state that it provides detailed advice for Judges and legal advisers when considering the appropriateness of any individuals proposed to act as expert psychologists in family cases.

This case also emphasised that a decision about whether there has been parental alienation should not be made by an expert – it is not a syndrome capable of being diagnosed and hence that decision can only be made by a Court on analysis of the evidence. Even then, the President comments that the label ‘parental alienation’ is unhelpful – what should be considered is the presence of ‘alienating behaviours’ and their impact on the child.

GB, Re (Part 25 Application: Parental Alienation) [2023] EWFC 150

This appeal supports and further enunciates the principles made out in Re C. It was a mother’s appeal against a Judge’s decision to appoint a psychologist to comment on parental alienation. The Court found that there were a number of errors in the Judge’s decision including the appropriateness of questions that were posed to the expert (which were for the Court, not the expert, to comment on) and of the necessity of their instruction, for which no reasons had been given.

Parental alienation is an understandable cause for controversy – it implies conscious wrongdoing and a definable category of case. It is encouraging that this label has been moved away from in the family court.

Whilst this is an issue that continues to be considered frequently in the family court, the media coverage increasing public awareness and scrutiny is hoped to lead to more positive change. Already underway is a consultation on new guidance specifically tackling this issue.