Parental alienation should have no place in our law or legal system
Parental alienation is already being misused in our family courts to the extent that victims of domestic abuse are afraid to disclose abuse for fear of being accused of alienation.
In America, more than fifty thousand children each year are forced by courts into unsupervised contact with an abusive parent. More than 70% of domestic abuse perpetrators gain custody of children. More than 770 children have been murdered by a divorcing or separating parent since 2008. For children in America, bravely speaking out about abuse is no guarantee of escaping it. The courts often overlook and dismiss allegations of domestic and sexual abuse. In many cases they do so because of the aggressive misuse of a concept called parental alienation (PA).
Despite there being no scientific evidence for it, parental alienation has become a dominant force in American courts as the standard defence against domestic abuse allegations. And it has begun to creep into the UK.
To understand parental alienation and quite why it is so problematic, we need to understand its roots. In the 1980s, Richard Gardner, an American psychiatrist with extreme views concerning paedophilia and child sexual abuse, came up with the term ‘parental alienation syndrome’.
According to Gardner, all children reporting abuse in custody litigation had been manipulated into fearing or hating one parent – usually the father – by the other. To treat it, he recommended‘ de-programming’ therapy, which denied maternal contact in order to change a child’s belief that they had been abused. To be clear: he thought that children should be forced to live with the parent they said had abused them.
Although Gardner’s theories have been dismissed by the scientific community and by the Court of Appeal in England and Wales, they have been replaced by concepts of ‘parental alienation’, ‘alienation’, ‘implacable hostility', and ‘children who resist or refuse contact’ - all grounded in the same ideas.
The US National Council of Juvenile and Family Court Judges has deprecated the use of alienation theory in family law cases, particularly in cases involving domestic abuse.
Yet despite a lack of evidence, parental alienation is successfully used as a stock defence by perpetrators in legitimate abuse cases in American courts. When fathers claim alienation, American courts are more than twice as likely to disbelieve mothers’ claims of any type of abuse, and almost four times less likely to believe mothers’ claims of child abuse. The result is that children are often forced to live with their abuser, put at risk of serious harm, of lifelong trauma or even death.
Worryingly, the government plans to include the phrase ‘alienating behaviours’ in the statutory guidance accompanying the Domestic Abuse Bill
Parental alienation is now crossing the Atlantic. Over the past five years, it has found its way into English family courts, and Cafcass have begun using it too. Worryingly, the government plans to include the phrase ‘alienating behaviours’ – a term used by the minister in debates about the Domestic Abuse Bill - in the statutory guidance accompanying the legislation. This risks letting the concept of parental alienation into UK law through the back door.
A good, progressive Bill, which does so much to improve the legal situation and support for survivors of domestic abuse, could now also introduce a loophole which has been rampantly misused by abusers in courts in the United States. This should have no place in our laws, or in statutory guidance.
The 'harm panel' report published by the Ministry of Justice in June 2020 shows that parental alienation is already being misused in our family courts to the extent that victims of domestic abuse are afraid to disclose abuse for fear of being accused of alienation.
This is not to suggest that our courts should reject any allegations of harm caused by a parent to a child. Far from it. Where false allegations are used as a form of abuse, these are already covered under the definition of coercive control in the Domestic Abuse Bill, in a form that is grounded in solid scientific evidence and sound legal practice, rather than undefined ideas which are so often used to subvert the court process and dismiss legitimate abuse.
We can give our courts the tools they need to protect against this. Training for judges, magistrates, social workers and others involved in court cases – rooted in the latest medical and scientific research - would ensure that they know about the nature and impact of domestic abuse and coercive control, and the long-term traumatic effects on victims, particularly children.
If we take protecting children in the UK seriously, then we must look to the experience of the US with parental alienation. It shows us quite how dangerous this concept is, and why it has no place in UK law or our legal system.
Baroness Helic is a Conservative member of the House of Lords.
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