Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In the world of family law, there is some debate over whether parental alienation is a concept which the Courts will recognise (relying instead on a concept of “implacable hostility”) and strive to address. When explaining this to clients, they express a range of entirely understandable emotions – shock, anger, frustration, resignation – because of course it exists!
For those who have not come across it, parental alienation is in essence where one parent manipulates a child into fear, disrespect, hostility and/or rejection of the other parent.
One of the biggest problems in situations of parental alienation is that the alienating parent is often the parent the child lives and spends most of their time with. It can be very difficult to dilute or control the influence of a primary carer on a child.
Parental alienation is an agonising situation for parents and, as lawyers, we can feel powerless to assist despite being convinced a child is suffering psychological harm. We have written this blog to explain how the law approaches cases like this and to provide some practical tips about what can be done to help improve the situation.
There are quite a number of reported cases (and presumably many thousands more unreported cases) where, even when parents seek the assistance of the family justice system to uphold their relationship with their child, they end up in a situation where that relationship worsens. In those cases, it seems as if the Courts are impotent. Why? Well, in our view, the reasons for this include:
Under s.1(3) of the Children Act 1989 in making any decision the Court has to look at the “ascertainable” wishes and feelings of the child. The task for the Court is how to elicit those ascertainable wishes and feelings, rather than purely the expressed ones. As any alienated parent will know, often their child adopts the rhetoric of the alienating parent and so, on the face of it, is similarly against contact with the alienated parent. This can be difficult to see through.
Unless the contrary is shown, the Courts should presume that it is in a child’s interests for both parents to be involved in their life. However, despite there being a lot of psychological evidence to the damaging effect of parental alienation, there is no statutory principle in the Children Act which protects the importance of children having a rich and full relationship with both parents.
The adversarial Court system can play into the hands of an alienating parent. Often, alienating parents rely on their children to meet their own un-met needs, and they can draw on the Court system in the same way. The system gives them the control and attention which can work well for them. Unfortunately, in an adversarial environment, often the parent draws on their child more.
The judge is unaware of what is going on “on the ground” until presented with expert evidence (be that from CAFCASS or an independent social worker). That evidence takes time to gather. Early decisions about contact arrangements are therefore made without this knowledge and on the basis of “he said, she said” type arguments – who is the judge to believe without an independent view?
There is often no oral evidence until the Final Hearing and so the judge has not heard either party speak or be challenged. Often an alienating parent will fall apart under cross-examination, but you might have to wait months (or possibly years) to get there, by which time further damage has been done to the child.
The alienating parent may not respect a court order for contact and the other parent often does not take steps to enforce the court order. A lack of contact while proceedings progress can help alienation set in.
An alienating parent may attempt to justify ignoring court ordered contact on the grounds the child does not want to go. Sometimes this is an excuse, but sometimes the alienating parent genuinely believes this and that they are therefore protecting their child. Sometimes the situation has got so bad that the child, at least on the face of it, genuinely does not want to go. Particularly where a child is saying they do not want to attend contact (for whatever reason), as the alienated parent, it can feel like your hands are tied.
What can we do?
We may be painting a grim picture, but all is not lost. As lawyers, we can take steps on your behalf to try and avoid some of the pitfalls mentioned above, for example by:
Getting early listings for hearing and bringing enforcement proceedings to try to stop alienation setting in.
Trying to involve the relevant professionals (psychologists, psychiatrists, counsellors and social workers) early on. This is important to get the child’s voice heard directly and without the filter that can be applied by the alienating parent.
Getting evidence before the Court at an early stage so that the voice of the alienated parent is also heard by the Court as soon as possible.
That being said, we cannot pretend that dealing with these situations is not often an uphill struggle which can result in lengthy litigation. As a result, there is often a long period in which an alienated parent will need to learn how best to deal with the situation on the ground.
What can alienated parents do?
It may sound all too simple, but we would encourage them to “hang in there” and remind themselves why their involvement in their child’s life is so important for them – that is ultimately what they are fighting for.
We would advise alienated parents to be consistent. They should not ask their child questions about the alienating parent during their (often limited) time with them and nor should alienated parents try to get incriminating information from their child when they see them. Children caught in these disputes are likely getting enough of this kind of questioning from the alienating parent and need their other parent to offer sanctuary.
Alienated parents should try and change the tone of communications with their child and the other parent as little as possible, even if the contact is very limited and the situation very difficult. There is no better foil to allegations a child may be hearing about the alienated parent than for that parent to be a consistent and positive presence in their child’s life when they are in it.
The alienated parent should encourage their child’s extended family to stay in touch, even if only through birthday cards and holiday postcards. Whatever family network a child has beyond their parents should be maintained.
Finally, alienated parents should seek support for themselves. Often speaking to a specialist psychologist can help them to understand the situation better and gain the strength to deal with contact and proceedings, in whatever form they may take.
What about the Courts?
We believe there needs to be a greater focus in the Courts on the loss of relationship and the damage it can cause to a child, coupled with an efficient and expedient approach to these cases. The Courts are getting better at recognising parental alienation and there are a growing number of lawyers trying to raise awareness amongst the judiciary, and so we are hopeful that in time the situation will improve.
Unfortunately, the fact remains that (at least for now) these are very difficult cases, but both we and you can do things to try and sustain your current relationship, and secure a future relationship, with your child.
If you should be affected by any of the issues covered in this blog, please contact Cady Pearce, Hannah Muress or another member of our family team, who all have experience of high conflict family cases and understand the emotional pressures this can put on all parties involved.
You may also be interested in reading the other parts of Hannah’s blog series about parenting and separation for further information:
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