Underlying harms: The need for transparency in protection of children of divorce and separation

The paramountcy principle, which is enshrined in the Children Act in the UK, requires that the best interests of the child are held central to everything being considered in private and public family law cases. Many criticise the family courts for the secrecy which surrounds them and campaigns are underway to make what happens therein, more open to scrutiny. Transparency is to be welcomed, because it is only when the public at large, understand why decisions to remove children are taken, that the emotional and psychological harm which is done to children, will become visible.

The underlying harms which are caused in cases which are referred to as parental aliention, are clear in law.

From Re (S) Neutral Citation Number: [2020] EWCA Civ 568

The law concerning parental alienation


7. 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.


8. 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 termswhat 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.

13. 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.

Lord Justice McCombe, Lady Justice King, Lord Justice Peter Jackson (2020)

Cases which are considered to have met the welfare threshold for serious harm are those where the child concerned is considered to have gone beyond parental control or where the child is not receiving the parenting to which they are entitled to by law. This is the point, at which removal may be considered. Decisions about whether a case has met the welfare threshold, are made by judges and are taken after extensive investigation.

Those who work with families affected by a child’s outright rejection of a parent in situations where there is no evidence to suggest that the rejected parent has caused harm, and where the Court has heard all of the evidence and where the judge has made a decision that the child is being harmed, recognise that removal of the child from the parent they are hyper aligned to, is on the basis of the harm which is being caused by that parent.

Just as a child who is being physically or sexually abused, is removed from the parent causing that harm, a child who is being emotionally or psychologically abused, is, sometimes, removed from a parent causing that, when they are unable or unwilling to change their behaviours. That is the law and transparency in the enactment of the law, would demonstrate that.

Parents who have been rejected by their children, are once again recipients of shame and blame and their experience is being erased and mischaracterised. This is not unexpected, but it is deeply unpleasant to observe. One of the problems that we have, is that public discource around this problem is driven by the very people who have something to gain from relying upon anecdotal evidence. Surveys of self selecting groups of parents, tend to cloud the issue rather than illuminate it. If you ask people who have had their children removed from them, for example, it is unlikely that these people will tell you that the system is fair or that they have harmed their children. And yet, these voices are elevated by some, as the only reality, to a point at which they dominate the discourse around what is actually, a highly complex, psychological and relational child welfare issue.

Opening up the family courts in a way that remains protective of children’s right to anonymity, can only increase understanding of why decisions to protect those children are taken by judges. It will also prevent the public debate from being dependent upon anecdotal evidence and personal interest.


Family Separation Clinic Evaluation

Given the degree to which the debate around this issue is driven by personal experiences and, some may argue, political agenda, it is particularly important that more objective evidence is obtained.

We hope that the year-long, independent evaluation of the Clinic’s services, which is being carried out by researcher’s from a UK university, will contribute to that. For example, it is frequently argued that the term ’parental alienation’ is used by men to obscure allegations of domestic abuse that are levelled by mothers. And yet, the latest gender diseggregated statistics from parents seeking the Clinic’s support around rejection by a child after divorce and separation, reveals that, in the period 1 April to 30 June 2021, 75.4% of clinical work was with rejected mothers and 24.6% was with rejected fathers.

The study will utilise both quantitive and qualitative methodologies to, independently, explore and understand the experiences of those accessing the Clinic’s services. It is only through such objective approaches that we can shift the discussion about alienation reactions in children away from sensationalisation on both sides of this sensitive topic and towards a more nuanced, clinical and empirical understanding of the problem.

2 comments

  1. Hi Karen I was waiting for your blog today and as always it hasn’t disappointed – thank you for keeping on banging the drum and importantly (from my perspective) having the desegregated statistics give real weight and balance to less aware perspectives. Great blog!

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    1. Glad you found it helpful Clair, in the midst of sensationalism, this issue has to be addressed from a) the perspective of child protection and b) from as distant objective as it is possible to attain (not easy in the middle of a storm of negative projections). I go to the place where the judge makes the ruling, that is my starting point. If a judge subsequently overrules that, I go to the overruling view. That and only that, in my view, is how it is possible to do this work with the child at the centre. All the rest is just he said/she said. I do think transparency in the enactment of the law would help, I think it would help judges to understand what other judges are doing too. The statistics are essential to look at, these stats are self referrals, which in itself is interesting because here again we are only looking at what people themselves are saying about their experience. When it comes to the work we do with clinical trials and residence transfers, which are delivered after fact finding and judgment of alienation, then we will see the way in which this work is balanced in terms of who is being judged to have harmed children and what the outcomes of intervention are. Results are due in 2022, the evaluation is underway now. I saw some of the testimony yesterday, from rejected parents judged to be innocent of all wrong doing, it is moving and powerful – however, lest I trip into the same anecodotal evidence giving I am critiquing in this blog, I will let the results speak, eventually, for themselves. K

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