Dr Adrienne Barnett writes our first guest post for Safe, our new online research blog. She explores how claims of parental alienation in the family courts are being used as means to silence victims of domestic abuse.
Published: 28th April 2020
Parental alienation and the family courts
Dr Adrienne Barnett is a Senior Lecturer in Law at Brunel University London. Prior to commencing in full time academia at Brunel Law School in January 2014, Adrienne practised as a barrister in London for over 30 years, specialising in Family Law. Her specialist area of research is private family law cases where domestic abuse is an issue on which she has published widely over the past 20 years. More recently she has been researching parental alienation in the UK. Adrienne was commissioned to prepare the literature review for the Ministry of Justice’s 2019 inquiry into risks of harm in family court proceedings and has undertaken training for the judiciary and professionals on Practice Direction 12J. She is a member of the Advisory Group of Rights of Women and of Women’s Aid’s Expert Advisory Group to the ‘Child First’ campaign, and is an academic adviser to the Association of Lawyers for Children.
Maria struggled for years to cope with her husband, Paul’s, abusive behaviour. She finally summoned the courage to leave Paul when he hit their son, Carlos, aged 8, with a belt. A social worker helped Maria and Carlos to find alternative accommodation, and warned Maria in no uncertain terms not to allow Carlos anywhere near Paul. Maria and Carlos saw Paul one day when shopping, and Carlos was so terrified he wet himself. Paul applied to the family court for contact with Carlos, denied everything Maria said about him, and claimed that Maria was ‘brainwashing’ Carlos into being scared of him. To Maria’s horror, she found herself accused of parental alienation. She was warned by the court, by Cafcass, and by her own barrister that if she did not allow Carlos to have contact with Paul she faced losing residence of Carlos to Paul.
Maria is not a real woman. She is thousands of women who flee abusive men to protect themselves and their children, and find themselves accused of parental alienation if they raise allegations of domestic abuse when their abusers apply for contact, with a real prospect of losing custody of their children to their abuser if they oppose or restrict contact. Parental alienation is a concept that is proving more powerful than any other in silencing the voices of women and children resisting contact with abusive men. It fits in neatly with, and is underpinned by, the ‘contact at all costs’ culture of the family courts and the heavy emphasis on co-parenting.
So, what is parental alienation (PA)? That question has a rather circular answer. PA has no official or accepted definition but has come to be understood as being what its proponents say it is. This can be summarised as the unreasonable rejection of a non-custodial parent by a child as a result of the manipulation of the child by the custodial parent. The aim is, intentionally or unintentionally, to exclude the non-custodial parent from the child’s life.
There is little, if any, credible scientific support for the theory of PA. An earlier version of the theory, proposed by US child psychiatrist Richard Gardner (parental alienation syndrome – PAS) resulted in family courts in the USA removing numerous children from the primary care of protective mothers during the 1980s (Neilson, 2018).
Attempts were made in a number of jurisdictions internationally to disseminate Gardner’s theory. In England and Wales in the 1990s, Ludwig Lowenstein, a psychologist, supported by fathers’ rights organisations, encouraged courts to remove children from mothers with care on the basis of alleged PAS. He was discredited as an expert witness by the Court of Appeal in the leading case of Re L, V, M, H (2000). In North America as well, the concept was soundly discredited on grounds of gender bias, harm to children, and lack of scientific credibility in the 1990s, after which it fell into disuse. The theory resurfaced in the mid-2000s as parental alienation, without the ‘syndrome’ terminology, which mirrored similar developments in the USA, at a time when the political and legal terrain had become populated with images of ‘implacably hostile’, gatekeeping mothers making false allegations of domestic abuse, during a UK government consultation on ‘making contact work’.
My research into the development and consequences of PA in England and Wales was based on an analysis of all reported and published court judgments in which PA or PAS were raised or referred to, producing a total sample of 40 cases between 2000 and May 2019 (Barnett, 2020). The reported cases cannot provide a representative sample of all such cases, as most child arrangements/contact cases are heard by magistrates or district judges whose decisions are not reported or published. However, they provide some insight into the way in which some trial judges respond to PA and into the attitudes and responses of the higher courts. In January 2020 a workshop to identify and explore issues arising from the use of PA in the family courts was held at Brunel University London, attended by 20 academics, professionals, and stakeholder organisations (PA workshop). The discussion that follows draws on my study and the outcomes of the PA workshop, to explore how PA developed and what its consequences are for parents and children involved in private law family court proceedings in England and Wales.
A common claim in family courts, but without definition or scientific backing
The research found that some judges and professionals are sceptical of PA, others fully sign up to it, but all participants in the system seem to recognise it now as a valid concept, with workshop participants reporting that claims of PA are prolific in private family court cases. However, there is no clarity in the way PA is defined, identified or applied by the family courts and professionals. Additionally, there continues to be no credible scientific backing for the theory of PA (Doughty et al., 2018; Doughty et al., 2020). In 2018 the World Health Organisation (WHO) published its new draft International Classification of Diseases, 11th Revision (ICD-11) which, until then, had excluded PA. Under pressure from PA proponents, PA was included in the draft ICD-11 as an index term. A robust response to WHO in the form of a collective memo was submitted, which was signed by 352 professional and expert organisations and 764 individual experts and professionals internationally (Collective memo to WHO). Despite fierce opposition to the memo by the PA lobby, in September 2019 WHO clarified that this did not “indicate WHO endorsement or any sort of formal recognition” and that PA “is not a disease or disorder”, contrary to misleading public statements by PA proponents that WHO has recognised PA as a health condition (WHO ICD-11 statement on PA). It is not clear yet whether ‘parental alienation’ will be included as an index term in the final ICD-11.
The emergence and development of PA in England and Wales shows a clear pattern of (initially PAS) and PA being raised in family proceedings in response to concerns about and measures to address domestic abuse. The immediate impetus for the emergence of PAS in England and Wales in the 1990s, it is suggested, was that the judiciary finally woke up to domestic abuse as a result of ground-breaking research by Hester and Radford in 1996 (Hester and Radford, 1996), who brought to the attention of courts and policymakers the harmful effects on children of the courts’ and professionals’ promotion of contact between children and violent parents. Again, after a fallow period between 2010 and 2013 when no reported or published cases referring to PA or PAS could be identified, PA re-emerged in the case law in 2013. This coincided with a renewed focus on domestic abuse by policy-makers in response to studies that revealed that Practice Direction 12J (PD12J) was not being implemented properly by the family courts, with domestic abuse being minimised, risk being inadequately assessed and unsafe contact orders being made (Coy et al., 2012; Hunter and Barnett, 2013).
In 2016 PA suddenly leapt into the spotlight. Yet again, this coincided with a renewed focus on the issue of unsafe child contact with perpetrators of domestic abuse. In 2016 Women’s Aid published Nineteen Child Homicides which documented the deaths of 19 children killed by their fathers in the context of contact arrangements between 2005 and 2015, which underpinned its ‘Child First’ campaign (Nineteen Child Homicides). From mid-2016, articles and programmes on PA appeared in the media and the legal press and the issue was debated in Parliament. Much of the focus of these articles was on a new ‘High Conflict Practice Pathway’ devised by Cafcass in 2016, which included measures to address PA. Cafcass subsequently substituted this in October 2018 with a ‘Child Impact Assessment Framework’ which still aims to address PA but places some emphasis on assessing risk (Child Impact Assessment Framework). The media, PA lawyers and pro-father MPs called for PA to be recognised as child abuse and criminalised. Unsurprisingly, there was a notable resurgence of claims of PA in the case law from 2017, a growing acceptance of such claims, and an increase in the number of PA ‘experts’.
The silencing of domestic abuse victims
This chronology, it is suggested, cogently reveals PA’s intended purpose – to divert attention from and even negate domestic abuse in private family law (Meier, 2017; Meier, 2020). One of the starkest findings of the case review, supported by the experience of the PA workshop participants, was the very high level of domestic abuse and the minimal application or even reference to PD12J in cases in which PA was claimed. In many cases, abuse could be lurking in the background but never determined; or it may have been proved but then glossed over, minimised, or considered too old. Allegations of domestic abuse could even be used as ‘evidence’ of PA (Birchall and Choudhry, 2018). PA workshop participants reported victim/survivors of domestic abuse being discouraged from raising domestic abuse even by their own representatives, for fear of being accused of PA. A linked concern revealed by the case law and the PA workshop discussions is how PA can dominate cases to the exclusion of all else. It has been likened to a ‘silver bullet’ as it becomes the sole focus of courts and professionals when making decisions about children, at the expense of a full analysis and assessment of the child’s best interests.
A significant feature of the recent case law is the increasing number of PA ‘experts’ (child psychologists and psychiatrists) emerging on the scene, who have played a key role in the propagation and success of PA in the family courts. The effect of such experts can be to make the father’s case almost unanswerable (Birchall and Choudhry, 2018). Indeed, once a PA expert is instructed, a diagnosis of PA becomes a self-fulfilling prophecy. Together with an increasing number of family lawyer PA ‘specialists’ who advance PA on behalf of their clients, it could be said that a burgeoning PA industry is on the rise. On the other hand, participants in the PA workshop reported that expertise in domestic abuse is not finding its way into the family courts, and the case law indicated that judges may assume expertise in PA and domestic abuse and make their own (minimising) assessments of risk.
A further problem is that PA marginalises or may even invalidate children’s wishes and feelings. While some judges in the cases reviewed took children’s wishes and feelings very seriously, other judges, encouraged by PA experts, were more than willing to ignore children’s expressed wishes and feelings and attribute them to coaching by mothers (see also Birchall and Choudhry, 2018). These findings were echoed by PA workshop participants’ experiences – of children’s voices not being heard or listened to, and their experiences not understood. Specialist participants reported that this increases children’s powerlessness, can retraumatise them, and can impede work in helping children to heal. Coercing mothers into enforcing contact on children who are resistant to contact and afraid of their fathers can also have a detrimental impact on the mother-child relationship, with mothers having to cope with angry, defiant and distressed children (Coy et al., 2012; Thiara and Gill, 2012).
PA may lead to outcomes in individual cases that are harmful to children, including the enforced removal of children from their primary carers. The case law analysis found that, although transfers of residence were rare (n = 4), the most recent judgments suggest an increased willingness to transfer the care of children from ‘alienating’ resident mothers to non-resident fathers. This is supported by research by Birchall and Choudhry, 2018 who found a high proportion of women who had had their children removed based on accusations of PA, or had lost contact with them. In three of the five cases I reviewed where residence was transferred to fathers, there were indications of violent and/or abusive behaviour by the fathers which had never been tested and were effectively ignored. In two of these cases, children were returned to their mothers mentally and emotionally damaged, and in two others it appeared likely that the fathers were frustrating the mothers’ contact.
A backlash against women’s rights
Finally, one of the most concerning aspects of PA is the clear indication from research and the experiences of the PA workshop participants that PA operates in a gendered manner and is used politically, with strong undertones of a backlash against perceived feminist gains over the past decades. Indeed, the fathers’ rights movement has played a key role in promoting PA in England and Wales (and internationally), and the ‘hostile mother’ discourses that underpin it. However, far from the hostile, obstructive and manipulative image of mothers portrayed in PA discourse, research has found that the vast majority of mothers are supportive of contact between children and non-resident fathers, even in circumstances of domestic abuse, and bend over backwards to ‘make contact work’, with only a small minority of cases being found to involve unjustified refusals of contact (Cafcass and Women’s Aid, 2017; Fortin et al., 2012; Harding and Newnham, 2015; Trinder et al., 2013). Yet the almost impossible demands on mothers are also discounted within PA discourse, and there was very little understanding in some of the reported cases of how difficult it is for a parent who has experienced abusive behaviour to encourage contact with their abuser.
The gendered nature and operation of PA is revealed by the case law analysis, which found that mothers achieved little to no success in achieving transfers of residence or in successfully claiming PA against fathers. In these cases, it was evident that the fathers were abusive and controlling. One of the most successful strategies of the fathers’ rights movement has been the campaign to ‘equalise’ PA between mothers and fathers, when it is like comparing apples and pears. The success of the strategy has been to co-opt into the PA lobby mothers who have experienced fathers’ undermining of the mother-child relationship as part of a strategy of abuse. There is considerable research revealing how perpetrators intentionally try to undermine, distort and disrupt this relationship and turn children against their mothers by demeaning, belittling, criticising and insulting women to and in front of children, encouraging children to participate in the abuse of their mothers and treating children to expensive gifts and days out, which can continue to be perpetrated through child contact (see, eg, Coy et al., 2012; Harne, 2011; Katz, 2016). My concern with mothers trying to demonstrate ‘alienation’ by fathers is that the term, ‘parental alienation’, has become so morally and politically laden that this serves to reinforce the power of the concept in its use against women, rather than for their use and benefit. The ‘alienating’ behaviour of abusive men should, I would suggest, be called out for what it is – a strategy of domestic abuse.
Covid-19 and child contact
The current Covid-19 crisis has a range of serious implications for survivors of domestic abuse, who can access support here. It has been reported to me by numerous survivors of domestic abuse that child arrangements and contact orders are placing them in grave difficulties, causing immense distress. Survivors who are concerned that compliance with current orders will put the health of their children, themselves and their families at risk have been met with abusive non-resident fathers insisting that the orders be strictly adhered to, with threats of enforcement proceedings. Conversely, many women who have lost the care of their children to abusers who have successfully claimed PA, or whose children are currently spending time with abusers under child arrangements orders, have found that fathers are refusing to facilitate contact or return the children even when it is safe to do so. Parents also have to navigate newly instituted procedures for remote hearings, which can be challenging for unrepresented parties. The President of the Family Division has issued Guidance on Compliance with Family Court Child Arrangements Orders. The Guidance encourages parents to agree sensible and safe arrangements if current orders need to be varied on safety and health grounds but states that if agreement cannot be reached and “one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/OHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe” (President’s Guidance on Compliance with Child Arrangements Orders). If the parent’s actions are later questioned in the Family Court, the guidance states that “the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family”. An accessible guide to child contact arrangements in the current Covid-19 crisis, including advice for survivors of domestic abuse, is available from Rights of Women (ROW Guide to Covid-19 and child contact arrangements).