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Parental Alienation: the enigma of family law

Ian McArdle, barrister of Atlantic Chambers, Liverpool, calls for an agreed definition of ‘parental alienation’.

Ian McArdle, barrister, Atlantic Chambers

Ian McArdle, barrister, Atlantic Chambers


In recent years, the concept of parental alienation has provoked much debate amongst academics and practitioners alike, all seeking to offer guidance on how cases involving parental alienation should be managed. Indeed, CAFCASS have sought to devise strategies for their Family Court Advisors to assist in the identification and management of cases involving alleged parental alienation. All those involved in these debates have laudable aims: they seek to secure better outcomes for children and families who are exposed to harmful behaviours.

However, there is a significant handicap to these efforts.

Before anyone can begin to manage a problem, surely they must grapple with what the problem actually is?

And if they cannot identify the problem, then how can they possibly manage it?

And if they cannot manage a problem, how do they solve that problem so that it does not reoccur?

This, I argue, is the conundrum facing the Family Justice System when dealing with allegations of parental alienation.

The concept of parental alienation can trace its roots back to the 1970s, but real debate did not actually start until Richard Gardner[1] sought to introduce parental alienation as a syndrome in 1985, in which he defined it as a 'disturbance in which children are obsessed with deprecation and criticism of a parent – denigration that is unjustified and/or exaggerated.'  Since then, there has been a steady stream of literature across a number of disciplines seeking to examine the effects of both parental alienation and parental alienation syndrome [2] and how to manage such issues.

Much of the literature on the subject, however, is predicated upon the reader already having an awareness of what parental alienation is, or upon an acceptance of what others believe parental alienation (or Parental Alienation Syndrome (PAS)) to be.

In recent times, CAFCASS have identified the need for a greater understanding of parental alienation as they are called upon by the Family Court to assist with such cases. CAFCASS have adopted a working definition of alienation. However, it is argued that this working definition highlights a significant difficulty in moving on the debate on parental alienation or offering meaningful assistance to the Court. CAFCASS' working definition is:

"When a child's resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent."

The use of the phrase 'psychological manipulation' conjures up connotations that parental alienation is a psychological issue. This would tend to align CAFCASS' understanding of the concept with Gardner's assertion that parental alienation is a syndrome. Indeed, proponents of Gardner's work have also found their research the subject of criticism and, in some cases, judicial rejection in this country.

Against the backdrop of criticisms which Gardner's work has generated from psychological and legal spheres and despite calls to include parental alienation syndrome in the ICD-11 and DSM-V having been rejected due to, amongst other reasons, a lack of research on the subject, it is submitted that the adoption of such a working definition by an organisation that is a major player in the Family Justice System further muddies the water. This is particularly so when considered alongside the findings of a review commissioned by CAFCASS Cymru [3] that there is no agreed definition of parental alienation.

During the initial stages of my research in this area, it is apparent that parental alienation and parental alienation syndrome are different beings. Yet even those who claim to be experts in the area appear to use the terms 'parental alienation' and 'parental alienation syndrome' interchangeably. Indeed, the working definition adopted by CAFCASS appears to merge the two concepts, with the reference to 'psychological manipulation'. This, it is asserted, adds to the need for a clear definition that does not appear to conflate the two. This must be avoided, not least as calls to include parental alienation syndrome in the international directories for mental illnesses have been rejected.

It has been acknowledged by the courts that cases where alienation is asserted place a huge demand on the court's resources [4] and this is particularly so at a time when the Family Court is facing significant pressures. The fact that many of the reported cases in which parental alienation is said to be a factor take the form of a 'post-mortem of the lost parental relationship' provides further support for the argument that more work is required in order to arrive at a clearer, less controversial definition and one that will offer the court and the families it serves the opportunity to manage such cases effectively, yet efficiently. However, the burden placed upon the courts is unlikely to lessen whilst arguments persist as to what parental alienation actually is.

Allegations of parental alienation are not going away. There is a body of research which tells us that a fractured parental relationship can create difficulties for children which pervade their life and future relationships; in order to ensure better outcomes for those children and families served by the Family Justice System, greater understanding of the concept is required.

As lawyers, we like things to follow a logical order. The approach taken thus far towards parental alienation is an antithesis to our way of working: seeking to solve a problem that we do not yet fully understand or are able to define in the vain hope that the problem will be addressed.

If we do not understand what parental alienation is, how can we possibly hope to determine allegations of parental alienation and then what can we do to solve the problem?

Footnotes:
[1] Richard Gardner was an American child-psychiatrist who first devised the concept of 'Parental Alienation Syndrome' and wrote prolifically on the issue. His work attracted considerable criticism but, despite this, forms the basis of many jurisdictions' understandings of what may constitute parental alienation.
[2] Whilst the terms 'parental alienation' and 'parental alienation syndrome' are used interchangeably, there are said to be more extensive 'symptoms' for diagnosis of a syndrome. The former has been considered to be a relational problem, for which there is said to be a low threshold for acceptance. The latter, whilst referred to as a syndrome, is not recognised as such in the DSM-V or the ICD-11 and therefore, the threshold for acceptance is considerably higher.
[3] Doughty, J., Maxwell, N., and Slater, T., Review of Research and Case Law on Parental Alienation, Cascade Children's Social Care Research and Development Centre commissioned by CAFCASS Cymru, April 2018 – accessed from https://gov.wales/sites/default/files/publications/2018-05/review-of-research-and-case-law-on-parental-alienation.pdf .
[4] Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 at para 11.

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