Parental alienation (PA) is a controversial subject on which there are widely polarised views, making it difficult to write about in a way that doesn’t attract criticism from some quarter.
There were a batch of PA judgments (all about the same family) published last month by Keehan J. At the time none of our writers pool were able to prioritise writing these up, so they weren’t allocated (The Transparency Project is a charity dependent upon the willingness of volunteers to write about cases that interest them and which are published at a moment in time when they have time available to give, and so we can’t cover everything).
On a quick scan of the Keehan judgments by a couple of TP members, they didn’t seem to raise any new point of law or principle, so for me they weren’t a priority for us to write up and I was unable to do so. However, reading them I realised I was probably a bit out of touch with the trends in published judgments on this particular topic, so when I did have a quiet moment I thought I’d try to survey what has actually been published over the last year.
Inevitably, a little five minute keyword search has turned into a somewhat more involved piece of work. But I think what I’ve done might be a useful contribution to what passes for debate on this vexed topic.
It’s important to recognise that others have carried out much more rigorous reviews and analyses of judgements on this topic (for example Review of research and case law on parental alienation, Julie Doughty, Nina Maxwell and Tom Slater, Cardiff University, Commissioned by Cafcass Cymru April 2018 and Adrienne Barnett (2020) A genealogy of hostility: parental alienation in England and Wales, Journal of Social Welfare and Family Law, 42:1, 18-29, DOI: 10.1080/09649069.2019.1701921), but those are now a couple of years out of date.
I looked specifically at judgments published in England & Wales in the last year which either included the term ‘parental alienation’ or ‘alienation’ in combination with the word ‘children’. That won’t capture all published judgments which are about alienation, because sometimes other terminology is used or references to alienation are oblique, but it should a reasonable approximation.
What did I find?
Here’s my rough and ready findings.
I found only 29 judgments. The overwhelming majority were by judges of High Court judge level (including Deputy High Court Judges (DHCJs) and in one case a Circuit Judge (CJ) sitting under s9), mostly but not all in the Family Division as opposed to the Family Court (21)*. 5 of these Family Division cases were appeals from the Family Court and in addition there were 2 Court of Appeal judgments – so, there were 7 appeals all from CJs. Of the 11 judgments marked as Family Court as opposed to Fam Div, 4 were CJ judgments, 3 from the same Judge, HHJ Vincent in Oxford (who was the s9 judge in one case). The rest were HCJs or DHCJs sitting in the Family Court. Unsurprisingly, there were no DJ judgments published.
*Terminology explanation : The Family Court deals with most family cases. The Family Division of the High Court hears some complex cases and some appeals from the Family Court. Family High Court Judges can sit in both the Family Court and Family Division, depending on what powers they need to exercise. Some specific types of case can only be dealt with in the High Court. Circuit Judges sit in the Family Court, but some are authorized to exercise the powers of a High Court Judge under s9 Senior Courts Act, and can do so from the Family Court. Deputy High Court Judges are part time High Court Judges. Recorders are part time Circuit Judges.
So, what does that tell us?
Well, it’s clear that the published judgments are not a representative sample. That means that patterns we might think we see in them might well not be replicated in the broader population of family court work, and as I will explain, there are a number of good reasons for thinking at least some of these apparent patterns would look very different, if only we could see them across the board.
Why is that?
- there are about 45,000 private law cases in the family court each year. These 29 judgments represent a miniscule proportion.
- The vast majority of family court work is dealt with by Magistrates, DJs and CJs, not Deputy High Court Judges or High Court Judges. Magistrates and DJs are not represented at all here. CJs are barely represented, and even then mostly through a single judge who for all we know may be an outlier.
- The Family Division is (or should be) reserved for cases of particular complexity, usually which involve the exercise of the inherent jurisdiction or international issues around jurisdiction or abduction (or both). There was a reasonably high proportion of international families in the judgments dealt with in the Fam Div, most of which involved cross border disputes and child abduction or alleged child abduction. By their nature these cases usually involve one parent in this jurisdiction and one in another, meaning that the court often faces very stark choices about their care arrangements (50:50 won’t be possible if your other parent lives abroad). These cases are not the typical work of the family court.
- Many of the cases, particularly the HCJ level and Fam Div cases involved leading counsel – parties were by and large lawyered up and privately paying. Only one case involved two litigants in person. This is highly atypical. About 60% of all cases in the family court involve one or more LiP.
- Quite a high number of judgments were appeals – a number were allowed and the case remitted for rehearing in the lower court. That means we know what was alleged, and a bit about what went wrong, but we don’t know ultimately what happened at the rehearing and what findings and orders were and weren’t made.
So, the cases we can see through publication probably heavily skewed towards the most hotly contested, litigious and tricky of cases.
What can’t we see?
Well, we can’t know what we don’t know. But we know there is a lot we don’t know.
We do know that DA is said to be alleged in something like 60% of all cases (see here – though we don’t know how accurate that estimate is or how often the DA is actually litigated, let alone proved). You’d think we would know that but we don’t. We should.
We know, I think, even less about how often PA is raised, though the impression given from social media and various studies involving those who complain of domestic abuse is that it is raised very often too – and often in the very same cases where the alleged alienator is raising DA. All I can offer here is my anecdotal direct experience – in itself not representative.
What I see is that PA is raised at all stages of litigation, sometimes as a throwaway or one off or a generalised complaint without it being ‘the issue’ in the case, sometimes systematically and persistently throughout litigation and in such a way as to make it the main strand of a parent’s case. Sometimes it’s used as a general descriptor for any objection by the other parent to the contact requested (even when contact is ongoing and going well but is just not as frequent as that parent would like). Sometimes it is used as an accurate descriptor of really concerning parental behaviour. Sometimes it is proved in court, sometimes not.
Nobody can agree on what does and doesn’t happen in family courts in this area – for example some say the Tipstaff is used regularly to effect late night transfers of residence from abused mothers into the care of abusive fathers – I don’t see that in my practice but that is a very small sample, even though I’ve now got almost 20 years of experience to draw on. Incidentally, the Tipstaff was not mentioned in any of the 29 cases I found. And some say PA is weaponised against those complaining of DA – I do see a bit of that (though I also see genuine alienation in other cases too), but don’t have any real sense of how prevalent it is. I was interested to see how far I was able to identify any patterns in the available material that either match or contrast with my own experience or the prevailing shouted counter-narratives ‘out there’.
Are there any patterns?
So, in terms of the substance of the cases I found – what patterns are there?
Well, alienation allegations were made mainly by fathers (21) but sometimes by mothers (5). Explicit findings of alienation were only made in 3 of the cases but it was clear the court considered this to be a factor in 4 more. In each of those 7 cases it was the mother who was found to be the alienator, although in one of them, a case which I observed and wrote about here, the evidence presented was not that the child was alienated, but that this was a future risk.
The court rejected allegations of alienation in almost as many cases of the 29 as it found it to be happening (6). Most of those cases had been said to be mother alienating against father, but two were the other way around.
There was a significant level of concurrent or cross allegations of DA v PA. Both DA and PA together featured in 11 cases. One involved a father serving a life sentence for attempted murder of the mother (by stabbing her 15 times on the school run), but in the course of responding to the mother’s application to remove his PR and to change the childrens’ names he was highly critical of her, accusing her of alienating the children. The judge concluded that The girls’ physical, emotional and educational welfare could only be met by them having no contact with their father, direct or indirect, and that he was using the litigation to further his abuse of her and the mother’s outcomes for removal of his parental responsibility and to change the childrens’ names were granted.
In 4 cases the court rejected the allegations of DA (all made by mothers), but in 6 cases, findings were or had been made (one of those however was an appeal and the findings were overturned, to be reheard – outcome unknown). All allegations of DA in the cases were made by mothers.
There were 3 cases in which it appeared a mother who had complained of DA refused to accept the fact that no findings of DA had been made. In two cases mothers who alleged domestic abuse and who had been accused of alienation appeared to have disengaged and the matter proceeded in their absence, in one case leading to an order for transfer of residence. There were 5 cases where it appeared that there had been no fact-finding hearing or determination of factual allegations. In one of those, the father had sought a fact finding regarding his own PA allegations under PD12J, but this was against a background of the court already having found him to have perpetrated domestic abuse; he had not appealed those findings and his request was declined.
There were 6 cases involving a transfer of residence order, 5 of them from a mother to a father. In the case going in the other direction, the father agreed to the transfer following findings having been made regarding his alienating behaviour. Three of those transfer of residence cases however were international cases where the parents were living in different countries, and in one of them the father used the English court to enforce an order in his favour made abroad. In another the father had retained the children here in accordance with their wishes and feelings and the court declined the mother’s application for their return to the country in which she was resident – in that case the transfer was not made as a result of alienation, but rather by way of rejection of the mother’s assertions about alienation.
There was only one case involving a bridging placement in foster care – that had involved an order made with a view to a move from mother to father’s care, but the published judgment was an appeal and the transfer order was overturned.
There were four cases in which PA allegations appear to have been persisted with to the detriment of the parent making that allegation. These were all fathers. In one case the father’s best and most legitimate potential point had been buried in amongst complaints about alienation, in another the outcome was no contact, and in another the court positively found the litigation has been used to continue the abuse (the attempted murder case).
It’s worth noting too, that insofar as we have evidence of a series of judgments from one judge, we can say that this judge (HHJ Vincent) drew conclusions that were adverse to fathers in 3 cases and adverse to the mother in one case. Each of the judgments is detailed and thoughtful and helpfully include clear findings as regards the behaviour and lack of insight / acceptance by the criticised parent.
A few but not all of the cases involved experts – some child and adolescent psychiatrists, some psychologists, some psychotherapists.
So, what do I make of those ‘patterns’?
Well, I remind myself of the caveats at the beginning of this post – these judgments are not only small in number, but on a number of levels cannot be assumed to be representative.
However, what this overview suggests is that PA is predominantly alleged by fathers, no doubt in part because fathers are less often the resident parent. It suggests that such allegations often co-occur with allegations of DA, and are sometimes made in response to such allegations or continue to be made in spite of clear findings of abuse which at least in part justify restrictions on contact or reluctance on the part of children.
There is in these judgments some evidence of an inconsistent approach to fact finding in relation to allegations of domestic abuse but it’s worth remembering that a lot of cases in which allegations of alienation gain traction are by their nature long running cases, and so a proportion of these cases may represent past practice in the family court where (I would suggest) the court and parties were more likely to avoid a fact finding hearing than perhaps would now be the case. Fact finding hearings are now occurring more often where the allegations are of coercive and controlling behaviour or non-physical forms of abuse, the seriousness and subtlety of which has only begun to be more fully and consistently appreciated in recent years.
The overview also lends some support to my own personal sense that PA is deployed on occasion in unhelpful ways – by which I mean unhelpful to the court, unhelpful to the resolution of the issues within the family, and unhelpful to the person alleging it from a strategic point of view. The examples of fathers so obsessed with criticising mothers for ‘PA’ when their situation is very obviously borne at least in part of their own behaviour is familiar to me. My worry in those cases is that so much focus on blaming the other parent for difficulties in the relationship with the child means that accusatory parents neglect to look at what they can and ought themselves do to improve the situation for their children.
Anyway, perhaps unsurprisingly, and perhaps reassuringly – the picture is a mixed bag. Whether the balance between the different sorts of case profiles would be the same if we could compare our 29 cases to the wider case population I don’t know, but I strongly suspect cases with similar features would appear in some numbers across the system. I fear that competitive and reductive debate about whether inappropriate allegations of PA are a bigger problem than false allegations of DA will continue. The fact is that they both happen, and trying to work out the prevalence of each is both arid and impractical. It would be beneficial to understand the prevalence of certain types of serious harm, but so often it feels like such attempts are driven by a sort of competitive agenda which can compound the already substantial difficulties in getting a clear picture of what is actually going on (either in the individual case or at a macro level).
What does matter, is that the court – alive to the fact that there is a range of dynamics at play across the board – scrutinises the individual circumstances of the case with an open mind and reaches conclusions based on the individual facts and the individual family. As with those fathers banging on about PA but oblivious to their own behaviour, the constant attack by the PA lobby on DA experts stymies our ability to recognise the complexity, nuance and variety across the many cases where a parent opposes or fails to support contact for reasons which are contentious.
For those who want to check out the raw data from which I’ve worked, I’ve uploaded a word document which shows my workings.
Feature pic : listen by Jay Morrison on Flickr creative commons – thanks!
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