Parental Alienation – learning from other jurisdictions and other disciplines
Joanna Abrahams, Head of Family Law, Setfords, considers possible ways to overcome problems of parental alienation.
Joanna Abrahams, Head of Family Law, Setfords Solicitors
A lot has been recently written in the mainstream press about parental alienation and this extra "air time" is generating a public and professional debate which should increase awareness both to prevent the germ of alienation developing and to take more effective steps to help those caught up in its trail of destruction, especially children.
As a result of an article in the Telegraph, in which I said I was looking to establish a global managed network/collaborative of experts who specialise in parental alienation, I have received a very welcome deluge of correspondence from individuals all over the world.
It has been extremely interesting to speak with them about their diverse approaches. One from which I feel we would benefit is that described by a practitioner in Vancouver. My Canadian counterpart has explained that Canada possesses a strong jurisprudence about the enforcement of contact orders. In, what might be called, a common case, namely a parent saying that the children will simply not turn up for contact and the parent cannot force them, it is now no longer a "defence" (and I use the Canadian terminology) against contempt. It is an often used tactic, to put it cynically, to say that one cannot force a child to attend and therefore the resident parent will come almost with "clean hands". Practically speaking, it can be almost impossible to force a child to physically attend contact. The issue is never going to be about that but rather about the child being persuaded by the resident parent that contact would be positive for him or her. Accordingly, the Canadian courts are now asking the resident parent to demonstrate what they have done to encourage contact. It is not enough simply to say that the parent will encourage contact or make a child available. The contact is required in the same way as attendance at school and, if the resident parent cannot achieve this, the court questions their parenting ability.
Being a parent is a tough job. No-one has ever said it would be a breeze and along with the fun and the jollity comes the day to day grind which will include setting boundaries and exercising parental authority. The court should expect to see evidence of this and of the resident parent setting the boundaries of parenting. In this context we perhaps should be looking at a minimum of four principles (and I would welcome suggestions from mental health workers and social workers about adding to these categories) which, might be in the areas of guidance, boundaries, incentives and consequences. I would propose the formulation of a parenting programme that could be put together with the help of mental health professionals, to look at these principles and others, in order for there to be some sort of structure for the parties to follow and to assist the courts in reaching a decision as to what is in the child's long-term welfare interests.
Provisions in other jurisdictions include criminalisation when a resident parent has been "found" to have alienated a child against the other parent. I am not entirely certain as to how fruitful the non-resident parent's relationship with the child is going to be when the child is (almost inevitably) told by the resident parent that he or she is being punished, possibly even imprisoned, because of their absent parent's actions. No doubt a child will need a great deal of psychological assistance to deal with that. One could make many suggestions how to progress lack of contact such as imposing financial penalties if contact is missed but, to me, the most efficient "shot across the bows" has to date been a threat of a change of residence. I am very well aware of the case law and how draconian this is but, often it is the most effective yet simple approach. Ideally however we would not have to resort to such a measure if there were an approved parenting formulation at the very least as a basic guideline for the parties to follow in the first instance.
We have a lot to learn from other jurisdictions but what is important is that we do continue to advance the fact that parental alienation is a cluster of behaviours usually prevalent to a greater or lesser extent in intractable contact cases. It goes beyond a child not wanting to see a parent for obvious reasons but is far more subtle insofar as it is nearly always for reasons which are entirely unclear or which are almost baseless. We certainly need to put time and resources into this so that we can assist the court with a view to finally tackling this phenomenon.