Court of Appeal Judgment – Parental Alienation as a Child Protection Issue

On April 29 2020, A highly significant Judgment in the UK Court of Appeal (Re S Parental Alienation: Cult) was delivered by Lord JUSTICE McCOMBE, Lady JUSTICE KING and Lord JUSTICE PETER JACKSON.

Underlining that parental alienation is a child protection issue, this Judgment gives exceptionally clear commentary on the Court’s view of the problem of a child’s unjustified rejection of a parent after divorce or separation.

Sections of the Judgment which set out clearly the view of the Court of Appeal are below. Section 13 is of particular significance in thinking about the issue of parental alienation from the perspective of protecting the child from harm.

  1. At the outset, it must be acknowledged that, whether a family is united or divided, it is not uncommon for there to be difficulties in a parent-child relationship that cannot fairly be laid at the door of the other parent. Children have their own feelings and needs and where their parents are polarised they are bound to feel the effects. Situations of this kind, where the concerned parent is being no more than properly supportive, must obviously be distinguished from those where an emotionally abusive process is taking place. For that reason, the value of early fact-finding has repeatedly been emphasised.
  2. As to alienation, we do not intend to add to the debate about labels. We agree with Sir Andrew McFarlane (see [2018] Fam Law 988) that where behaviour is abusive, protective action must be considered whether or not the behaviour arises from a syndrome or diagnosed condition. It is nevertheless necessary to identify in broad terms what we are speaking about. For working purposes, the CAFCASS definition of alienation is sufficient:

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

    To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive. 

  3. Where a child’s relationship with one parent is not working for no apparent good reason, signs of alienation may be found on the part of the other parent. These may include portraying the other parent in an unduly negative light to the child, suggesting that the other parent does not love the child, providing unnecessary reassurance to the child about time with the other parent, contacting the child excessively when with the other parent, and making unfounded allegations or insinuations, particularly of sexual abuse.
  4. Where a process of alienation is found to exist, there is a spectrum of severity and the remedy will depend upon an assessment of all aspects of the child’s welfare, and not merely those that concern the relationship that may be under threat. The court’s first inclination will be to reason with parents and seek to persuade them to take the right course for their child’s sake, and it will only make orders when it is better than not to do so. Once orders are required, the court’s powers include those provided by sections 11A to 11O of the Children Act 1989, and extend to consideration of a more fundamental revision of the arrangements for the child. We agree that whilst a change in the child’s main home is a highly significant  alteration in that child’s circumstances, such a change is not regarded as “a last resort”: Re L (A Child) [2019] EWHC 867 (Fam) at [53] to [59] per Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution. 
  5. Cases at the upper end of the spectrum of alienation place exceptional demands on the court. It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become. It must take a medium to long term view and not accord excessive weight to short-term problems: Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 per Sir Thomas Bingham MR at 129. It must, in short, take action when and where it can do so to the child’s advantage. As McFarlane LJ said in Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104; [2014] 1 FLR 1185 at 53:

    “53. The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”

  6. Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship.  Re A (above): 12 years of proceedings, 82 court orders, 7 judges, 10 CAFCASS officers, no contact.  Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam)[2004] 1 FLR 1226 (Munby J): 5 years of proceedings, 43 hearings, 16 judges, no contact.  Re A (Children) (Parental Alienation) [2019] EWFC B56 (HHJ Wildblood QC): 8 years of proceedings, 36 hearings, 10 professionals, no contact despite an attempted change of residence. In some cases (e.g. Re A) a formal finding of a breach of the state’s procedural obligation under Article 8 was made. Another recent example is Pisica v Moldova (Application No 23641/17) 29 October 2019, where a mother was deprived of contact despite five years of proceedings during which she had obtained orders for the children to live with her. Finding a breach of Article 8, the ECtHR stated: 

    “63.  The Court  reiterates that although the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life (see, amongst other authorities, Glaser v. the United Kingdom, no. 32346/96, § 63)…

    … 

    66.  In cases concerning a person’s relationship with his or her child, there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (see, for example, Ignaccolo-Zenide, cited above, § 102; Süß v. Germany, no. 40324/98, § 100, 10 November 2005; Strömblad v. Sweden, no. 3684/07, § 80, 5 April 2012; and Ribic, cited above, § 92).

    73.  It is against this background of increasing alienation of the two children from the applicant that from July 2013 she asked the court to decide the custody case in a swift manner. Despite this request and her many complaints about P.’s actions, the first-instance court took a year and a half to decide (see paragraphs 12 and 31 above). This added to the overall period during which the applicant did not have meaningful contacts with her two children, while P. continued to be able to alienate the children from her (see paragraphs 12, 13, 18, 21, 23, 24, 26, 33 and 34 above). This delay in deciding the case is contrary to the principle of exceptional diligence referred to in paragraph 66 above.

    80.  In the light of the above considerations, the Court finds that, in the present case, the domestic authorities did not act with the exceptional diligence required of them (see paragraphs 66 and 73) or discharge their positive obligations under Article 8 of the Convention. There has therefore been a violation of Article 8 of the Convention in the present case.”

  7. In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent’s right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken. It is easier to conclude that decisive action was needed after it has become too late to take it. 

In the context of a worldwide backlash from those who seek to deny that manipulation of children’s minds, either deliberate or otherwise, exists, this Judgment is extremely important in determining the reality of the problem and how it should be managed in Court.

Those of us who work with alienated children and their families around the world consider alienation to be a non accidental injury to the mind of the child.  This Judgment suggests that the management of parental alienation should be in line with all non accidental injury interventions, which put the need to protect the child as early as possible in the process of recognition of harm, before all else.

 

30 comments

    1. I don’t know what you are referring to here unfortunately. I work with so many cases every week around the world, I am unable to keep track of them all. If you feel that I have not done something I should have done, please email me at karen@karenwoodall.blog

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  1. When will the judiciary stop with the discrimination towards fathers and children and just acknowledge the system is broken, CAFCASS are not fit for purpose and Parental Alienation exists and needs to be incorporated within the statutory law in England and Wales making Parental Alienation a criminal offence. The namby pamby BS from such esteemed members of the judiciary speaks volumes of how they are utterly indifferent to the short term and longterm damage of Parental Alienation on the children and target parent or grandparents.

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    1. I am not sure that this Judgment is either namby pamby or at all discriminating against fathers Pete. This is an important Judgment, which will change the way that many cases are dealt with from now on. I think some critical thinking might be useful here.

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      1. Hello Karen, I applaud your work and have found your writings to be extremely helpful in enabling me to understand this phenomenon, find a little inner peace in the midst of our broken world, and act in a way that minimises the psychological damage to my youngest child. I accept your expert view that there is a need to remove a child from the abusive parent’s control in order to meaningfully address the splitting. Given the court’s (prima facie sensible) view that court orders need to do more good than harm and the immensely difficult task of securing a change in residence order, I decided to back off and, in effect, allow the psychological abuse to continue to happen to my youngest child. I simply do not have the inner resources or a spare £20k-£50k left after a divorce that cost £50k in fees to spend on a case that has a poor chance of success. It seems to me that we in the West live in a culture and a structural system of courts, experts, social workers, lawyers, police, public servants who have a world view that women’s rights and children’s rights are, in effect, the same thing; that men are innately toxic and women are innately nurturing and can only be victims. Although I do recognise (with much sadness) that the system offers opportunities for abusive fathers to target mothers, the system overwhelmingly operates against children and their right to have a relationship with their father. I see and respect your optimism regarding this decision but is seems to me like glacial progress at huge psychological, societal and financial cost. I am grateful that you and your colleagues are doing this work.

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      2. But the reality is it won’t make any difference in the vast majority of classes. Hard pressed DJs with a overloaded public case load of significant harm and neglect are too inclined to take the “safe” route to get a matter of their list, particularly one involving subtle a but sustained and damaging alienation. They are too inclined to be pro-mum, dismiss dad’s concerns usually as nothing more than attempts get at mum through the children and cop out by ordering and relying on cafcass needs and wishes reports that are cobled together by over worked and often not very good officers who also opt for the safe pro-mum option and suggest living and contact arrangements that should have departed with the 70s. Dad is £75k lighter in litigation costs but otherwise has got nowhere. Or worse than nowhere because mum is emboldened by the outcome the system has given her and the alientuaon continues and grows. Most dad’s have to give up at that point. Only few and far between can carry on fighting and, by the time the courts are in a position of having no choice to recognise what is going on, irreparable damage has been done. Courts have a habit of doing the worst possible thing, supporting and often giving more time and control to the one doing the alienation. The system and cafcass are broken. This is a positive judgement, but will take years or decades to permeate and take effect throughout an entrenched and change/risk adverse judiciary. The starting point should be 50/50 split unless there are very compelling reasons otherwise. Currently the default seems to be every other weekend and midweek tea time contact with dad, for no good reasonz and judges are all to easily fooled by nonsence from mothers, and too keen to look for reasons to chastise fathers. The assumption is still that mum’s are a better class of parent, to be preferred by default, and dad’s are only good for weekend trips to McDonald’s.

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    2. Hi Pete
      When, scores of parents fail on a daily basis to obtain findings of either PA or emotional harm, to the very low civil standard of proof, what makes you think they would do any better faced with the far higher and more onerous criminal standard?
      Critical faculties are essential when evaluating judgments.

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  2. In our case a circuit judge found significant evidence that the mother lied about the father not gent interested in the children. He also found on going through the evidence and on witnesses testimonies that the mother planted a video of child porn to try to frame the father and keep him paying support but only allowing limited supervised contact with his children. The CAFCASS officer appointed to the case interviewed both parents for an hour each then decided that b the father should remain limited to 1hr supervised contact per week. This is a travesty of justice especially in a world leading country like Britain.

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  3. This is a very interesting and long awaited development regarding PA.

    Point 11 stands out for me……. ‘Cases at the upper end of the spectrum of alienation place exceptional demands on the court’.

    Reviewing the judgement (attached to this report), whilst it appears that the QC acted on a Pro Bono basis for the appellant, no doubt it resulted in many years of limited direct and indirect contact with the child, solicitor and court time (at great financial expense) to finally be told by a sitting judge that these cases …….. place exceptional demands on the court….. is distasteful.

    My experience dealing with Social Services and a hostile resident parent and their family, is that for too long, this conscious and subconscious coaching of the children to reject the non resident parent, against a completely ridiculous narrative goes ‘unnoticed’ and in itself is abusive, with longstanding issues attached for the kids who are subjected to it.

    This is another piece of the jigsaw that (with great hope), will ultimately end in those people (both family members and professionals) who assist in this horrible form of child abuse, being held legally accountable.

    A simple ‘sorry’ from these perpetrators, after the non resident parent spends years of fighting their name and at a great financial cost is simply woefully inadequate.

    The cause continues to gather momentum………….

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    1. It certainly does PWUH and as you and I know, there will be set backs as well as forward momentum but the shift is ultimately in the right direction and continues to be so. Those with wiser eyes and a longer vision because of it, are able to see what is needed in order to properly create forward motion.

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  4. “the more distant the relationship with the unfavoured parent becomes, the more limited its powers become.”
    With just over a year behind me, have I crossed that rubicon, Karen? The severity of the alienation and the skill of the alienating parent (extremely high in my case, for example) at entrenching the psychological splitting must also factor into the equation?

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    1. I don’t know where you are in your situation David as I don’t know your case, what I can tell you is that there is always something the Court can do – whether or not that is interfered with by others, which is often why interventions are derailed, is another matter. Even in severe psychological splitting, I have seen remarkable shifts in children when the power over them wielded by an unwell parent, is removed. There is a time to step back but I can’t say when as there is no formulaic approach to this problem unfortunately. It is like a cancer, it is broadly recognisable but has its own individual and unique markers in each family.

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  5. It is tempting to say better late than never, but this has taken decades and much, much worse, tens of thousands of lives ruined – not just children, but fathers & mothers. Add to that the huge numbers of suicides.

    [ “When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”
    To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate. It is the process that matters, not the motive. ]

    My view, now, is that the whole damn thing could have been completely avoided if the 1989 Children’s Act made the default position on custody to be 50%/50%, without good reason not to have shared custody. That would have placed the burden on the alienator to prove abuse by the alienated parent – and although there may have been cases were one parent may have manufactured claims of abuse by the other, the claims could be relatively easily disproved.

    The reason that 50/50 parenting would never have been considered as the default in the Act, I place on the hugely influential feminist lobby.

    For far too many children & their loving parents, this is too late. And that is before this, although important, judgement is seen to have a positive far reaching effect.

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    1. we simply have to keep on City Man, if we were to spend our time looking backwards then all we will do is rue the missed opportunities. This is a fluid, ongoing struggle. It is beset with enormous barriers but for children of today and tomorrow we cannot and will not stop.

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      1. I agree that for children & parents in the future, this is a positive step, although we must wait to see if it really has a wide ranging, positive outcome within the court system.
        For me, personally, it is too late.

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      2. and for you and your children CMM I am deeply saddened because it is a loss they will live with all of their lives as will you. Sending you my best always. Karen

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    2. Fifty fifty custody does not help in alienation. I had fifty fifty custody with my ex husband but still lost both my children. One at 18 and one at 13. At 13 the courts allow the child to choose (as my ex gleefully informed me) and do not always recognise alienation. My son is now 16 and the courts are not interested. The son I lost at 18 (although with hindsight it had been going on for years) is now 26 and it’s clear he will never return. I was exceptionally close to both my children but it didn’t save me. Even if they did return now they will never be who they should, could or would have been. Their peace of mind and sense of self is destroyed forever. My ex husband has abused me since I was 19 years old and I’m now 53. He’s still doing it. Worse, he’s now coercively controlling my children. I believe he should be held accountable in court for severe spousal coercive control and that of a minor. He is acutely aware of what he is doing. I pray that one day the law will change, as in sexual abuse cases and he will one day be brought to justice.

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  6. Sadly Karen this is more of the same and most judges will dismiss this judgement and state each case turns on its on merits. I have quoted re l, A, M, C etc until blue in the face..

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    1. I do not think it is more of the same of anything, it is the clearest Judgment on the issue of parental alienation and its management in court that I have seen and I think it will make a significant difference in how the problem can be treated in the present and the future.

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  7. I really hope so Karen. Not one single judge in N. Ireland at all levels use case law in family law. One judge HHJ Loughran did a few times but she retired about a year ago. I have laboured on the Re L case and I may as well be doing you know what in the wind. I would be delighted to hear of anyone that gets traction on case law.

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  8. Slightly amazing but, after I posted thislink on the (abused) site that argues “Parental Alienation is junk science and is actually DV by proxy” – because ‘they’ refuse to see the difference (or the similarities) – it has actually been put out as a link in its own right by someone who oversees the site….. and has not been shot down in flames (not a mention of Richard Garner – yet) small breakthroughs everywhere (???) it seems.

    It’s a start …………. Keep up the good work and the reporting back Karen.

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    1. good news Willow, good work in keeping up the education of others, every little bit pushes through the barriers x

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  9. Donna
    I’m ten years older than you and would have been married for 50 years (!!!) last month if I hadn’t left him five years ago. My daughter was close to me until she 15 because he took little interest but, when he took voluntary redundancy from his job, and had a crisis of self, he decided he preferred our daughter to me and was far less threatened by her resulting adoration and protection than anything I could give him in light of how he treated me. So you could say that we had 100:100 custody until five years ago but there was nothing I could do to counteract his behaviour, absolutely nothing. He simply didn’t want to share her (that is exactly what he told me! She’s now 39) Nothing could ever change him or convince him that he had ever done anything wrong (another thing he was proud of) Even now he won’t change, BUT…. I like to think that some who start along this path just might be ‘helped’ to realise what they are doing and not actually want to carry on – I like to think that, but whether it’s true or not I have no idea. Karen would be better placed to tell us how many alienators turn themselves around before it’s too late and stop doing it!

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  10. I noticed that this particular case has been given to the President to give final verdict. This is a highly unusual step. Can anyone else give case law where a LJ has said that this case should be judged by the President?
    Something big is going to happen in July 2020. Watch this space. My money is on MacFarlane bringing out big guns and laying down some real guidelines. I think he is going to make an example judgement to be followed by lower courts and bring a whole raft of cases to an end. Hope he adds a 90 day embargo for good measure.

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  11. I think that this ruling is paramount for a step in the right direction. However, I do find it ironic, without Prejudice, that they use a mothers PA as an example rather than a fathers, a bit like DA/DV. ask someone what is domestic violience and they will say a man hitting a woman.
    I haver a guess having dealt with over 800 cases in 4 years at Action For Fathers that there is still the ace card of DPJ12 to overcome before a father can even present this new DP(direction practice). It is a good landmark as both parents should abide by the “welfare” of the child first. However what this ruling does not consider is the mental cruelty and damage that is done to the alienated parent. out of each ten cases that I do I would say 8 result in the fathers mental health being deeply affected by PA, often resulting in medication to a person who was once perfectly fine, anxiety, depression, loss of employment and the courts just simply fuel the mothers negative actions, prolonging the fathers anxiety of not being able to see his children. We have also unfortunately had incidents of suicide. I understand this works both ways, but in 4 years I have seen a lot of PA not only taking place but being heavily supported by the judicial system which is barbaric. When a person uses the system, the police, non-molestation orders, false allegations against a person this is known as breach of process, using the authorities to manipulate another human being; If one were to do that by getting a third party to harass a person into anxiety and depression this would been deemed as a criminal offence; And that person or persons harassing the third party would be locked up, so what about the person doing it legally against the other person, supported by their solicitors and the judicial system?

    All in all great work Karen, have not come across you before, would be good to touch base….There is light at the end of the tunnel.

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