Parental alienation is a term used in Children Act proceedings, when one parent (who the children live with) becomes so controlling that the children are no longer able to express their views freely about the non-resident parent.
The children will be subjected to either intentional or unintentional negative views about the non-resident parent (i.e. the one they would have contact with usually) by the parent with whom they live. Sometimes there is a deliberate, overt, campaign by the resident parent against the non-resident parent. Sometimes, it is far more subtle, and sometimes it is unintentional (due to unresolved issues).
The question then is what to do when a child rejects their parent. What we look at, when trying to ascertain if this is parental alienation, is whether the rejection is justified.
If, for example, the non-resident parent has been abusive, then that is a clear reason for rejection. However, if it is not clear and the reasons given are obscure, this may be a hint that this is parental alienation.
There is certainly a clamour at the moment for this to be addressed not only in the family court but also in Parliament. Some MPs are calling for this to be criminalised so that the resident parent could end up in prison if they alienate. What ought to be carefully considered is how that child will react to the non resident parent who has, in their view, put their mum or dad in prison. It does not bode well for a good relationship.
It is not for us or the client to assert that alienation is what is happening. Rather, the court will reach its conclusion, usually, in two ways. One is by having a fact-finding hearing. This is where the non-resident parent would set out for example five examples of what (s)he says is alienating behaviour, the resident parent will respond (the allegations are set out in what is called a Scott schedule) and the court will hear evidence on those allegations and make a finding (decision) on whether they have occurred or not. Therefore, a court can say alienation has occurred after a fact-finding hearing.
Another route is to approach a psychologist to carry out an in-depth meeting with the parents (and children) to then report and he or she can assert their professional opinion as to whether this is happening. It is up to the parties to challenge the report if they disagree at a final hearing.
If alienation is found the court can say that the children are suffering from emotional abuse and, that if the resident parent does not change their ways, the ultimate remedy is to shift residence to the non-resident parent so that the children will have a relationship with both parties. Alternatively, it can invite the local authority to bring care proceedings – in each case the care of the children would be removed from the resident parent.
Joanna Abrahams is head of family law at Setfords Solicitors.