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.
- 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.
- As to alienation, we do not intend to add to the debate about labels. We agree with Sir Andrew McFarlane (see  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.
- 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.
- 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)  EWHC 867 (Fam) at  to  per Sir Andrew McFarlane P. The judge must consider all the circumstances and choose the best welfare solution.
- 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)  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)  EWCA Civ 1104;  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.”
- 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)  EWHC 727 (Fam);  1 FLR 1226 (Munby J): 5 years of proceedings, 43 hearings, 16 judges, no contact. Re A (Children) (Parental Alienation)  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.”
- 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.