On Wednesday 15 June 2022, Mishcon de Reya's Family department invited a panel of experts to discuss parental alienation and its present treatment in the courts of England and Wales.
Hosted by Mishcon's Parental Alienation Group, in the first of the Family department's "Putting children first" event series, the panellists included:
- Deborah Eaton QC: A pre-eminent authority in children law for many years, she frequently handles some of the most significant and far-reaching cases in this sphere, including those with an international angle to them.
- Dr Myrna Gower: A Family and Systemic Psychotherapist with many years of continuing experience in clinical practice, teaching and consultancy.
- Diana Goldin: A Family and Systemic Psychotherapist with 27 years’ experience in the areas of Paediatric neurodevelopment, mental health (including eating disorders), developmental trauma, parent work and high conflict relationships, special interests are parenting, and parental guidance in separation and divorce or high conflict relationships.
With all three of our experts specialising in high-conflict children cases, their discussion ranged from the utility of the term 'parental alienation', to the pros and cons of the Court's current approach and the barriers which still exist for practitioners to enact real change in this area of children law, for the benefit of their clients and, ultimately, the children at the heart of these cases.
Defining parental alienation
From the outset, the panel discussed their concern for how frequently the term 'parental alienation' is used and misused in practice today.
When asked how she would use the term 'parental alienation' in her own practice, Diana Goldin explained that for her it was a "tricky term" as often in already high conflict cases, it "polarises things further."
"When talking to families, language is key," Diana explained, "if they come to you and say "I'm being alienated," you are already starting in difficult position. There is often a reason why they need to call another party an alienator, but what is clear is that it is not one size fits all, so needs to be considered very carefully when used."
Deborah Eaton QC agreed with this sentiment, arguing that true parental alienation cases are "fortunately quite rare". However, the language of alienation creeps into many cases when parental alienation is not really present, Deborah explains."Once you get tarred with that brush, it is very difficult to move on from it."
Deborah also argued that the question should not be "what is the purpose" of the term but more "what are you going to do about it?" Ultimately, Deborah explains that practitioners need to move away from "labelling" and move towards "finding solutions".
Family law practitioners are often keen to put cases into categories. However, like most aspects of Children Law, in practice every case is different and ticking the boxes of alienating behaviour "simply will not do." More often than not, that behaviour is consistent with other issues and patterns of behaviour which need to be addressed .
Dr Myrna Gower explains that in an effort to combat the overuse of the term, practitioners and the Courts themselves have tried to come up with alternative terms such as "Mal-adaptive parenting" and "contact refusal". Nonetheless, Myrna argues that whilst the goal of these efforts is to move away from 'what it is' to 'how it is', you need to uncover what is actually happening rather than continue to help define the "clash of the titans." This, Myrna explains, is where therapy comes in.
Therapy – solution or scapegoat?
The panel discussion swiftly moved on to the role of therapy in assisting practitioners and the Courts in cases where a parent is being alienated from their child(ren).
In the system today, when the Court is presented with a case of parental alienation which, for whatever reason, is unable to move forward with child arrangement orders, the solution is often to send the parties to therapy. This is good, says Diana, but parties need to understand why they are going in order to reap the benefits.
"The way it works is each part will go in with their desired outcome, and both parties' hope is that the therapist will teach the other that they have done wrong." Diana explains. Unfortunately, "that’s just not how it works."
Therapy can only succeed, Diana argues, if you clearly define what it is you are seeking and what the Judge is looking for in an outcome, and then "marry it up with the intention of the family."
"When we get into something which gets inflammatory quickly, I often ask the parties: what do you think the child would think about this conversation?" According to Diana, a solution can only start to be reached "when both parents come to therapy and are determined about keeping the child in the centre and the focus on the child's experience."
Moreover, Myrna emphasised how the data supports this conclusion, with the research showing that in families who were experiencing high conflict cases of parental alienation and who, as a solution, were recommended traditional therapy, did not see significant improvement in their situation at all. This was due to "lots of errors and no engagement."
"Families in a long line of a particular parenting style will continue with that style as long as it's challenged – if they don’t agree with what their assigned therapist is telling them, they will find another therapist."
Furthermore, Myrna highlighted how it was counter-intuitive for therapists to agree and conclude that alienation is in fact occurring, as they become third-party alienator and "that is really dangerous as you are going nowhere".
Parental alienation, our panel of experts agree, is often the result of a difficult, high-conflict divorce or separation. With such animosity built between the parties, it is inevitable that the children of the relationships are influenced by their parent's thoughts and feelings towards the other.
Deborah explains "we're often faced with a situation where a client comes in and says of course I want him to have relationship with his father or mother, but the child just won't go."
"They don’t see that they are supporting the behaviour of the child with their own," Deborah explains. Moreover, they do not see that this behaviour is ultimately failing the children. "If the children don’t see the non-residential parent, the parent should regard that as failing the children. Until we stigmatise that behaviour it won't move on."
The current system – discussion with the audience
When opened to the floor, our audience of solicitors, barristers, therapists, judges, and others working in this area had plenty to contribute in terms of the own issues they face in cases of parental alienation.
Audience members shared the experience of Deborah Eaton QC, that some clients come to them with a situation where when no contact is taking place between one party and the child(ren), and often no one knows why. Indeed, it was observed that "cessation of contact is often disproportionate to what happened."
There was also a shared sentiment that there were many different levels of parental alienation, from mild to the most severe cases. The biggest issue in scenarios, agreed by a vast majority of the audience, was the delay in these cases getting to the courts and the timeframes with which they progress through the system.
"The Courts are completely overloaded with work, and there isn’t any accountability" explains Deborah. "The Judge will say: this is what needs to happen, you have your prescription, you need to go away and try and implement. More often than not, it doesn’t go well and no contact takes place. Next time you see judge it is three or four months later; you can see the children slipping away and you can't do anything quickly enough."
"Parents come back to me time and again and say how do I have relationship with my child in the wait?" Diana adds, "I am recommending things which feel so desperately sad."
Amongst the members of the judiciary in the audience, was an agreement that it was just too late in most cases by the time they got exposure to alienation cases. The problem is that in the Court system, judges do not have enough time to deal with each case as thoroughly as they require. Unfortunately, the parties who have alienated the other parent know that and can use it to their advantage to prolong the time the child foregoes contact with the other parent.
The solution – panel and audience verdict
A more decisive Court
"The message I would get out there is practitioners and judges get braver about it, be persistent and insistent, say we can't come back in three months, it needs to be earlier" explains Deborah. "I am sympathetic to what judges have to deal with, but I do think momentum needs to be kept. If contact fails in week one, why shouldn’t there be second attempt week one, week two; it sends a message to the child to say it's not going away."
Diana agrees, adding, "it's about communicating the timeframe which needs to be there throughout the system."
"For me," Myrna explains, "it is about structure and partnership: the judge, the law, needs to order the therapy to the child and family, and for it to work we need court orders to help us do that, without that partnership nothing really works."
With public services such as Cafcass currently struggling under the burden of being over worked and under resourced, it is important to get cases on the right track before the need for their involvement so that "low level cases which grow into something awful can be cut off at the knees."
"In a lot of "low level" cases you don’t need a big assessment – you simply need to ask "is the contact happening?" If not, accountability is needed, and Judges need to act firmly." – Deborah Eaton QC
Challenging the narrative with early intervention
There was a consensus in the audience that fundamentally, the psychoeducation needs to start in childhood. With early education and focussed support at early stages, the system will have a much better ability to respond quickly.
An important point was raised about the responsibility practitioners have in testing their client's narrative when they are presented with allegations of parental allegations. After a show of hands from the audience, it was clear that consequences are rarely enforced when parents do not facilitate contact orders from the court in cases where the child is reluctant to go to the other party.
"Practitioners need to ensure the parents keep children in focus from the outset of divorce or separation, and when they go to the lawyers, they will be able to call on someone like me to help them," concluded Diana.