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Parental Alienation: Where Are We All Going Wrong?

Ian McArdle, barrister of Atlantic Chambers, Liverpool, calls for a fact-finding approach to cases involving alleged parental alienation.








Ian McArdle, Barrister, Atlantic Chambers

The concepts of parental alienation and parental alienation syndrome have been around for a number of years now and continue to challenge the family court and those who work within it. The Court of Appeal has acknowledged the demands placed upon the court by cases of alienation at the upper end of the spectrum1  and there continue to be attempts to improve the way in which such cases are managed. Practitioners within the Family Justice System are keen to add their voices to the chorus of how best to manage such cases. But despite those attempts, there remains division as to what alienation actually is and how such cases should be managed.

We can trace authorities concerning Parental Alienation and Parental Alienation Syndrome back to the Court of Appeal case of Re L & Ors (Children)2. In that case, the Court of Appeal commissioned a piece of work by Sturge and Glaser within which commentary was offered as to Parental Alienation Syndrome. Considering PAS as devised by Richard Gardner, Sturge and Glaser expressed the view that PAS does not exist in the sense that it is does not feature in mental health directories and that the concept is not helpful. It would be useful at this point to consider Gardner's definition of PAS:

"a psychological disturbance in which children are obsessed with deprecation and. Criticism of a parent – denigration that is unjustified and/or exaggerated."

In considering the concept of PAS, the Court of Appeal in Re L & Ors (Children) considered the evidence of Dr Ludwig Lowenstein – a proponent of Gardner whose evidence in that case was firmly in line with Gardner's expressed views – and concluded that the lower court was entitled to reject it and that PAS 'is a long way from a recognised syndrome requiring mental health professionals to play an expert role'.

However, despite that case now being more than 20 years old, it does not appear that we are much further forward. We need only look to the current working definition employed by CAFCASS:

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

Re L & Others, supported by the work of Sturge and Glaser, could not have been clearer and yet CAFCASS define the concept of alienation as 'psychological manipulation'. The use of the term 'psychological' is unhelpful. It medicalises the concept. It arguably feeds into the narrative that it is a syndrome – a term with medical connotations. It draws practitioners into the belief that a medical expert opinion is required. Arguably, it undermines what the Court of Appeal told us 20 years ago.

Whilst the debates continue, the family court continues to manage those cases where alienation is a feature – and possibly, the most prominent feature – and make decisions regarding the welfare of the child. With ever increasing numbers of cases coming before the family court3 , the pressures are not likely to ease, nor is the burden such cases place upon the court.

But what can be done to manage such cases? Peter Jackson LJ touched upon this in Re S (Cult: Parental Alienation) when he referred to the need for a process of alienation being found to exist. The Court of Appeal had already emphasised the need for prompt and effective findings of fact hearing4.

It is well-established that in cases where domestic violence is a feature, the court should establish a factual matrix before making decisions relating to the welfare of the children and, in my view, the position to be taken in cases of alienation is no different. In the same way that the court approaches cases of domestic abuse, the court should seek to establish a factual matrix as soon as possible. The 'label' we attach to the alleged behaviour leading to difficulties with contact is, in some ways, unhelpful and seeks to either polarise positions further or medicalise an issue that may not necessarily require it, thereby adding further layers of complication for the court to unravel and which undoubtedly result in significant delay.

Taking a step back from labels, such as parental alienation and parental alienation syndrome, the court is likely to be assisted with focusing upon the real issue in the case: the behaviour of the parents. Once the court has determined the factual matrix, decisions can then be made regarding the appropriate welfare outcome for the children. It is in this consideration that the court will find the input of CAFCASS, and in appropriate cases experts, invaluable. As things stand, it seems as though there is such confusion as to the concept that the task of determining the factual matrix falls to either CAFCASS or an expert, neither of whom are arbiters of fact. In fact, given CAFCASS's continuing input with regards to welfare decisions, arguably, shouldn't they be as far removed as possible from determining the factual matrix so as to avoid subsequent complaints of bias?

Whilst this may be seen as over-simplifying what can be a complicated (and controversial) topic, it nevertheless allows the court to focus on the factual disputes and resolve them in a timely and proportionate manner. The debates as to what parental alienation/parental alienation syndrome is will continue to inform all aspects of the Family Justice System. The need for greater understanding of these concepts will not disappear but with greater understanding will come greater outcomes for the children and families the Family Justice System serves and will assist the court in leaving no stone unturned in the quest for ensuring children have full and proper relationships with both their parents.


1. Per Peter Jackson LJ in Re S (Cult: Parental Alienation) [2020] EWCA Civ 568.

2. Re L & Ors (Children) [2000] EWCA Civ 194.

3. CAFCASS received a total of 3648 new private law cases in April 2021, which represents a 42.7 per cent increase.

4. Re J [2018] EWCA Civ 115