The clash between parental alienation and domestic abuse

Applications to the Family Court for child arrangements orders have increasingly become dominated by allegation of domestic abuse and counter-allegations of parental alienation.

There are those who claim that some parents engage in parental alienation, designed to prevent a child from having contact with the other parent, and others who claim that there is no such thing as parental alienation and that it is something claimed by abusers to distract the court from their abuse.

(Invariably it is the mothers who are accused of engaging in parental alienation and fathers who are accused of being abusive to the mothers. Of course, it is entirely possible, but perhaps less likely, that the alleged abuser could be the mother and that the parent engaging in parental alienation is the father, but in my experience it tends to be other way around. Therefore, for the sake of simplicity, in this blog I am mostly going to describe the mother as allegedly alienating and the father as being allegedly abusive).

Parental alienation has become an increasingly controversial concept. Family practitioners became aware of the concept of parental alienation about twenty or so years ago. It is a process through which a child becomes estranged from one parent as the result of the psychological manipulation of another parent.

The Cafcass website quotes research that defines it, stating “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.

In other words, one parent will do what they can to permanently drive a wedge between the other parent and the child.

It is alleged by some and in particular by Women’s Aid that there is no such thing as parental alienation, that it is something is used by abusive fathers to counter allegations of domestic abuse made against them by the mother. Women’s Aid’s position is that “we see women continuing to be accused of “parental alienation” – a concept which has no legal or scientific basis – when they raise valid concerns around domestic abuse and child safety.

I am not sure that it is correct to claim that there is no legal or scientific basis for the existence of parental alienation, although it is fair to say that its existence is widely disputed; e.g. the WHO has declared that it is not a medical term. There has also been considerable concern recently about unqualified so-called “expert” witnesses giving evidence to the Family Court that parental alienation is taking place when it has not been. However, there are other many organisations who do accept its existence, e.g. Cafcass, albeit that it prefers to call it “alienating behaviours”.

The court has always had to deal with domestic abuse allegations in family disputes. In recent years, however, there has been far greater awareness of the extent of domestic abuse. I recall an experienced circuit judge about 25 years who was always utterly dismissive of allegations of psychological or emotional abuse. Nowadays, I would be astonished to see a judge adopt that approach.

Domestic abuse is now recognised as being much more than just physical violence or verbal abuse by a man towards a woman. It can also be emotional, psychological, sexual and financial in nature. The Domestic Abuse Act 2021 introduced a statutory definition of domestic abuse for the first time:

“Section 1 (3) Behaviour is “abusive” if it consists of any of the following—

(a)        physical or sexual abuse;

(b)        violent or threatening behaviour;

(c)        controlling or coercive behaviour;

(d)        economic abuse…;

(e)        psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.”

One of the forms of domestic abuse that we have become increasingly aware of is coercive control.

Coercive control  is a pattern of domination through which the abuser uses coercive and controlling tactics, which may or may not involve physical, psychological, or sexual violence, to entrap their victim. The tactics deployed by the abuser can comprise emotional blackmail, threats, gaslighting, physical force, surveillance, stalking, insults, and other means. It can exclusively consist of psychological tactics, such as gaslighting.

I mention gaslighting in particular as in recent years as I have noted a significant increase in allegations about this type of abuse. Twenty years ago, the term was pretty much unknown in family law. Nowadays, I see it alleged a lot. The expression is derived from the 1938 play Gas Light (and at least two subsequent film adaptations), in which a husband secretly dims and brightens gas-powered lighting, but insists his wife is imagining it, making her think she is going insane. The aim of modern gaslighting is to enable the abuser to undermine his victim and thereby maintain control over her.

The BBC recently broadcast an edition of The Issue reporting on a small number of mothers who have apparently fled to Northern Cyprus (a state with which the UK does not have diplomatic relations and which is not a member of the Hague Convention, an international treaty that deals with children who have been abducted from one country and taken to another). These mothers absconded with their children because the Family Court had made orders that the children should live with fathers against whom they had made abuse allegations. The article claims that their allegations of domestic abuse were ignored.

The programme is dramatically shot, with lengthy scene-setting accompanied by ominous music. It is barely 25 minutes long, so it contains only the briefest of explorations of this difficult issue. It contains many deeply worryingly allegations of mothers driven to take drastic steps due to alleged failings by the court.

I found this report troubling. It simply did not reflect my experience of the family disputes in countless cases over the past 27 years during which I have specialised in family law. In my experience, the Family Court nowadays takes abuse allegations extremely seriously. These children would not have been placed with the father on the basis of a mere judicial whim. There would have been lengthy court proceedings, in which the court would have considered the allegations and decided whether there was any truth to them. Often there will have been a fact finding hearing during which the court will have considered the evidence put to it by both parties. Both sides would have had an opportunity to put forward their case. The court will also have directed that Cafcass provide the court with an independent report making recommendations to help the court decide what order to make. The court would then have made an order that it considered to be in the child’s best interests. It does not decide the dispute without considering matters properly.

We don’t get to hear the father’s side of the story in any of the cases mentioned in The Issue. The BBC states that it has seen “seen multiple police reports for allegations of domestic violence in connection with the women we interviewed, written at the time of the incidents. We’ve also seen domestic abuse risk assessments – as well as IDVA (independent domestic violence adviser) reports detailing abuse.”

That may sound compelling to a non-lawyer, but it’s only part of the story. We haven’t heard the father’s evidence whereas the judge will have. Cafcass, social services and the police may be very firmly of the view that a father is abusive, (and they may of course be absolutely right), but that they don’t have the final say. The judge does, and the judge will be all too aware that not all allegations of domestic violence are true.

Judges, in my experience, have not adopted the highly questionable approach used by the police in recent years that “victims must be believed”. Experienced Family Court judges know that while many mothers make serious and entirely justified domestic abuse claims, some other mothers make false or exaggerated allegations to strengthen their cases, or to obtain a legal aid certificate (legal aid is now only available in private law family cases to people who allege that they are victims of domestic abuse).

The most questionable claim was by one mother who claimed that she went through 120 hearings about her children over ten years, costing her £100,000 in legal fees. If true, that is an astonishing number of hearings and it would have had to have been an exceptionally difficult case.

To put it in context, most cases involve at most three or four hearings. If there are also domestic abuse allegations and a resulting application for a non-molestation order, there might be a few more. At most, there might perhaps be a dozen hearings, but only in the most difficult of cases. I suppose there might also be criminal proceedings if the alleged abuser is prosecuted and that might involve additional hearings. I find it very difficult to believe that there could have been anywhere near as many as 120 hearings, even spread over a decade; an average of 12 hearings a year would be astonishing. Quite aside from anything else, the Family Court is horrendously slow. Most cases would be lucky to get four hearings in a year.

Judges don’t always get it right of course. It’s a human system and sometimes the court will get it wrong. However in my experience, the court gets it right far more often than it gets it wrong.

A much more balanced article in The Times about the issue of parental alienation can be found here.

At this point I am going to pin my colours to the mast. I think that arguing that there is no such thing as parental alienation is wrong. It definitely exists in some cases. I have seen it in cases that I have handled and I am absolutely satisfied that it was taking place in those cases. (And in case anyone reading this blog makes the mistake of thinking that I am biased against mothers in these cases, I can also recall a case where it was clear that an abusive father had very successfully alienated his child from its mother).

I recall another case where there was evidence from an eminent and highly respected child psychologist that the mother’s behaviour amounted to parental alienation and that the child was suffering emotional abuse as a result. The court therefore made an order that the child should live with the father and have regular contact with its mother. The mother tried unsuccessfully to appeal to the Court of Appeal against the decision. I have no reason to doubt the court’s decision in that case.

However – and this point is crucial – not every case where parental alienation is alleged is justified. With greater awareness of the concept of parental alienation came a greater incidence of fathers alleging it. Some of those fathers may have been doing so to divert attention away from their abusive behaviour, others did so because they were frustrated by what they felt was an unreasonable and difficult mother stopping or restricting contact with their children. In some cases parental alienation was taking place; in most, it probably was not.

The same thing has happened with gaslighting. 20 years ago I had never heard of it. However, in the last decade or so, with greater aware ness of the issue, gaslighting allegations have become a lot more common. Some of them are true. Some are not. I have spoken to clients who tell me that they are victims of gaslighting when all that was happening was that the parties disagreed about something. I have had clients who have been told by the police that their ex is gaslighting them when in fact, it was verbal abuse (which is just as bad. It may be grounds to seek a non-molestation order, but isn’t gaslighting).

On one occasion, the sole allegation of gaslighting made by the mother was that the father had committed adultery, which he denied. There is more to gaslighting that your ex disagreeing with you; gaslighting is different from genuine relationship disagreement, which is both common and important in relationships. Gaslighting is distinct in that:

  • one partner is consistently listening and considering the other partner’s perspective;
  • one partner is consistently negating the other’s perception, insisting that they are wrong, or telling them that their emotional reaction is irrational or dysfunctional.

This is a difficult subject. I thought long and hard about how to write this blog as there will inevitably be people who believe that there is no such thing as parental alienation and will be appalled by my assertion that it exists (although I would suggest that the majority view among family lawyers and judges is that it does sometimes take place).

here are also the people whose support I don’t want. I tweeted my scepticism about the BBC programme above and received a large number of likes from other family lawyers and even one well-known senior Family District Judge. It was reassuring to see that they agreed with me. However, I also had a lot of likes and “supportive comments” from legally unqualified tweeters who clearly had an axe to grind, some of whom appeared downright misogynistic or paranoid.

Parental alienation does sometimes take place, but not as often as some fathers allege. Similarly, domestic abuse does take place, but some cases involve allegations that that are false or exaggerated.  It’s possible for cases to feature both parental alienation by one parent and domestic abuse by the other. It’s not a straightforward black or white issue; it’s much more nuanced.

21 October 2023

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