*This article contains sensitive content about sexual and domestic abuse. Reader discretion is advised.
Dr Frankenstein’s Creation
“Parental alienation” as a concept has existed in legal systems around the world for decades. It does not have a single agreed definition, but the Children and Family Court Advisory and Support Service (CAFCASS) in the UK defined alienation as being “when a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent”. This definition went on to be adopted by the Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568. In Brazil, where parental alienation has been criminalised since 2010, parental alienation is defined as “the interference in the psychological development of the child or adolescent promoted or induced by one of the parents, by the grandparents or by those who have the child or adolescent under their authority, custody or supervision in order to refute a parent or harm the establishment or maintenance of links with the parent”.
In the last few decades, this concept has gained traction and become increasingly popular in many countries such as Brazil, Spain, Italy, England and Wales, Ireland, Australia and Croatia. In Brazil and Mexico, it is a criminal offence, meaning the parents accused of it, mostly mothers, can be jailed directly. However, this concept’s origin is controversial. It has its origins in the 1980s when the US child psychiatrist Dr Richard Gardner coined the term “parental alienation syndrome” to rebuff the widespread accusations of child abuses to the police and the courts, claiming that over 90% of children were “alienated” against their fathers by mothers seeking to protect their children against sexual abuse. The syndrome has largely been rejected in the psychiatric community, and Dr Gardner himself is also controversial. He described sex between fathers and their offspring as normal and natural, and blamed sexually abused children’s suffering on our society’s “overreaction” to sexual abuse. In his books Sex Abuse Hysteria: Salem Witch Trials Revisited and True and False Accusations of Child Sex Abuse, he claimed paedophilia is an “ancient tradition” and may “enhance the survival of the human species by serving procreative purposes”. He blamed children for seducing their fathers sexually and fabricating abuse claims. He also blamed the mothers for not fulfilling their husbands sexually so that their husbands resort to children.
Due to the sensitive and abhorrent nature of most of his psychiatric views, they will not be further elaborated here. However, his view on these topics is an important historical background when we discuss the concept of “parental alienation” in courts, which has increasingly been used by abusive parents as a legal tool against the other parent, typically mothers, for manipulating and “alienating” their children against them.
“Mum, I don’t want to go.”
Parental alienation is a powerful legal tool with drastic consequences on families in custodial disputes. When a finding of alienation is made, a parental alienation “expert” can recommend that all contact is cut with the “alienating” parent while they undertake recommended “therapies”. They can be prevented from seeing or speaking to their children for several months, sometimes even permanently until their children turn 18. Resumed contact can depend on the success of the “therapy” recommended by the “expert”, mandated by the court and either paid for by the “alienating” parent or another source. This means the “alienating” parent can be held to ransom – either pay up for risk losing their children indefinitely. It is important to also note that because these children are said to have negative views towards the “alienated” parent, they will be forced to live under the “alienated” parent too, even though the parent might have been found to have committed domestic abuse.
The financial consequences for the parents accused of parental alienation, typically women, is huge. Not wanting to do the “therapy” is seen as resisting, but the “therapy” is costly, sometimes monitored by the “expert” who found parental alienation and recommended it. Although the parent alleging alienation need to pay as much as £10,000 for an “expert” report on parental alienation, the costs of therapeutic interventions for the accused parent can run into tens of thousands of pounds. This is excluding the legal fees, which can pile high for parents involved in prolonged litigation. Natalie Page of the Survivor Family Network reported that “several mothers reported they had lost their homes and life savings during lengthy court battles that ultimately resulted in the removal of their children”. As an allegation of parental alienation can be waged against even a parent with no previous bad record by an abusive parent, the drastic consequences are concerning.
The following example offered by the Guardian illustrates the tremendous impact of a finding of parental alienation in family courts. Amanda cried as her children were removed from her home several years ago, her youngest child clinging to her as they were dragged away and screaming. They were frightened and said: “We want to stay with Mummy. We love Daddy but he scares us.” Amanda was accused of brainwashing her child, but according to her, her ex-husband was coercive and would demand sex, isolate her and pressure her to give up work. He eventually become violent and she found the courage to leave. However, after the children complained about their father’s angry episodes, a parental alienation “expert” found Amanda to have psychological issues and turned the children against him. Her children were cut off from her for months, and then she was only allowed two hours of supervised contact once a fortnight. This is only one of numerous examples around the world where a finding of parental alienation can not only destabilise the life of the children and their protective parents, but also subject them to further harm and post-separation abuse.
Deny, Attack, and Reverse Victim and Offender (DARVO)
Due to the power of such a legal tool, it has been increasingly used by domestic abusers to counter accusations from the other parent. This tactic has now been recognised by domestic abuse researchers as “deny, attack, and reverse victim and offender (DARVO)”, where a perpetrator of domestic abuse seeks to counter-accuse the victim to avoid taking accountability for their actions. This legal tool is often successful even in cases where serious domestic abuse has been recognised by the court. The barrister Dr Charlotte Proudman says this is because in some cases, the court call on a parental alienation expert to assess the family before there is even a hearing to determine if domestic abuse took place. Once parental alienation is found, as is likely the case for reasons discussed further below, any suggestion of domestic abuse is downplayed, and it becomes difficult to turn a case around. The accusation of parental alienation also allows domestic abuse offenders to wage false allegations against the other parent, in order to “level the playing field”. A classic case is that of Darren Mack, the subject of an international manhunt in 2006. Despite being accused of shooting his custody judge and stabbing his wife to death, he was able to convince a custody evaluator that he was a falsely accused loving parent with no violent tendencies. Parental alienation therefore provides a legitimate venue for domestic abusers to control the court process and continue to harass and abuse the other parent, which has been recognised as a form of post-separation abuse.
Responding to this widespread problem, the UN recently began an investigation into the increasing use of parental alienation in domestic abuse cases to deflect and minimise allegations of abuse and double-victimise domestic abuse sufferers. The UN states that the majority of parents affected are women, who have their children permanently removed from their care or face imprisonment even when they raise credible allegations of child physical or sexual abuse. The women are seen as manipulative, poisoning their child’s brain against their father. This has had a silencing effect on survivors of domestic abuse. In Brazil, for example, where parental alienation is criminalised by jail terms, abused parents are forced to remain silent regarding abuse of their children by their partner or former partner, because they risk being accused of alienation and losing parental responsibility for their child if they speak out. The Office of the United Nations High Commissioner for Human Rights (OHCHR) note with concern that this has contributed to the banalisation of violence against women and girls. Brazil has one of the highest instances of femicide in the world: in 2017, about one-third of Brazilian girls and women suffered violence in the previous year, and more than half of them are from current or former partners. In 2021, one woman is raped every ten minutes in Brazil, and a femicide happens every seven hours. It is therefore hard to justify retaining a draconian criminal provision that serves to silence survivors of domestic abuse from speaking out, not least on human rights grounds.
Children’s human rights are of particular concern. The victims’ commissioner for London, Claire Waxman, points out that in some extreme cases, children have disclosed very serious abuse and were then patronisingly told by experts and judges that the abuse never happened and that they were “alienated” by the parent they see as safe. The protective parent and their children are therefore disbelieved, called a liar and have their plea for help ignored, and then the children are put into the hands of the abusers. For example, in Brazil, family courts regularly dismiss allegations of child sexual abuse brought forward by the mothers, depriving them of parental responsiblity. In Spain, full custody was granted to the father of a seven-year-old girl, despite allegations of sexual abuse against her. This has great emotional and physical harm to the children, sometimes even resulting in death by the resentful abusive parent. Joyanna Silberg, a clinical psychologist in the US, found that it can take years for these children to get over the feelings of betrayal by the system that was supposed to protect them, and some never do.
As such, abused parents and children have their fundamental right to life and right against torture and inhuman and degrading treatment infringed upon by such post-separation abuse. The fact that domestic abuse affects these rights was recognised by the seminal European Court of Human Rights case Opuz v Turkey app no 33401/02. However, as that case also established, the state’s failure to protect survivors of domestic abuse could also engage the right to equal treatment and against discrimination on the grounds of gender. It has been observed that parental alienation has mostly been used by fathers against mothers and children who make accusations of domestic abuse. As the OHCHR also points out, parental alienation as a concept reflects underlying gendered stereotypes against women and girls, who are portrayed as lying and manipulative. Their testimonies are therefore dismissed or considered of inferior value and credibility. Even in cases where domestic abuse has been proven, the court continue to use parental alienation under the wrong assumption that parental contact is always good for children even when the parent is a domestic abuser, and mothers are often portrayed as obstructors of such contact. Parental alienation is therefore profoundly discriminatory and impedes progress towards a more equal and just society.
Proponents of parental alienation, however, insist that parental alienation is a form of child abuse that should be recognised, and its awareness promoted. A 2018 Cardiff University study notes that the concept seems an unnecessary label attached to the rare instances of a parent instilling false beliefs in a child, which could be a form of emotional abuse and is already covered by statute. This finding is echoed by Hannah Jones, a chartered forensic psychologist who observe that such a label is unnecessary. As a Ministry of Justice report in 2020 points out, such instances are small in comparison to the large number of cases where parents fear false allegations of parental alienation. Moreover, if child alienation is a form of emotional abuse, then it is a question of fact for the court to resolve like they resolve any other issues of domestic abuse, rather than a diagnosis that can or should be offered by a psychologist. As will be illustrated below, such diagnoses are fundamentally flawed from science’s perspective and deeply dangerous.
Pseudoscience: Regina in Sheep’s Clothing
Parental alienation is widely discredited in psychiatry and psychology as a useful concept. It lacks “a universal clinical or scientific definition”, according to the UN, and provides significant scope for subjective interpretation. As a result, courts are increasingly reliant on “experts” who claim to be able to assess and diagnose alienation. However, such “diagnosis” lacks evidence base. In 2020, the World Health Organisation dropped the term from its index of diseases, citing the reason as “there are no evidence-based healthcare interventions specifically for parental alienation”. There is little research in the UK into the “therapies” and interventions prescribed to “treat” alienation and their success rates, and the 2018 Cardiff University study criticised it as lacking “robust empirical studies” and capable of harming victims of abuse. Prof Mike Wang, chair of the Association of Clinical Psychologists UK (ACP-UK), echoes this conclusion.
The most significant reason why parental alienation is plain pseudoscience is its approach to children’s voice. It favours child abusers in custody determinations, and ACP-UK has said those who profess to be “alienation experts” have a “confirmatory bias and an unhelpfully narrow lens, which is likely to render them unsuitable for conducting, in an open-minded way, a psychological assessment of the family”. Dr Paul Fink, President of the Leadership Council on Child Abuse and Interpersonal Violence in the US, said: “Science tells us that the most likely reason that a child becomes estranged from a parent is that parent’s own behaviour. Labels, such as Parental Alienation Syndrome, serve to deflect attention away from those behaviours”. Instead, “experts” of such assessments typically treat child’s voice as invalid. In the most recent reported UK case about child alienation, F v M (3) [2022] EWFC 89, the self-claimed expert Ms Melanie Gill said she would not ask directly for “wishes and feelings” from the children because “in these cases such information is not necessarily reliable”. She dismissed allegations of abuse made by one of the children against their father as “not credible”, and effectively ignored findings of coercive and controlling behaviour on the part of the father made by a district judge in 2015. The trial judge, HHJ Lindsay Davies, despite the child’s allegation of parental abuse, described the children’s life as happy and stable and issued a section 91(14) order to prevent the mother from future applications to the court. As the ACP-UK said, it is “never appropriate to exclude a child’s wishes and feelings” and a psychologist’s role is not the fact-finding role of the judge. But the original proponent of parental alienation, Dr Richard Gardner, created this very concept to discredit children’s allegations of sexual abuse and silence their voice. Are we really surprised, then, that this concept went on to be used this way in the courts?
Gold Rush In the Wild West
The problematic nature of these “therapies” are exacerbated by the fact that these experts, who are mostly unregulated, often have an economic interest in both the diagnosis and “therapeutic” intervention. As mentioned before, recommended “therapies” for the accused parents run into tens of thousands of pounds, and the vulnerable parents are left to foot the bill. These experts therefore have a lot to gain when they recommend their own “therapy” or that of colleagues. This conflict of interest, coupled with the confirmation bias inherent in parental alienation “assessments”, enhances the likelihood that parents will be “diagnosed” with parental alienation and have children separated from them, falling under the hands of the abusers.
The problem of financial incentivisation, and the problem of the use of parental alienation in general, exist due to the insufficient regulation of experts giving evidence in the family courts. In the UK, clinical psychologists are regulated by the Health and Care Professions Council (HCPC), who are qualified to give clinical assessments of individuals. Academic psychologists, who are not sufficiently qualified to assess individuals but are still allowed to give opinions on certain issues in the court, are regulated by the British Psychological Society (BPS). However, most parental alienation “experts” are regulated by neither, using titles not recognised by such organisations, such as “experts in alienation”, “child psychologist”, and “assessment psychologist”. The danger of unregulated experts are that their performance and professional conduct cannot be held to account, and problems of misconduct are rampant: Ms Waxman points out that these “experts” may “mislead about their credentials, are affiliated to lobby organisations and have a history of complaints against them”. This is exemplified by the F v M (3) case, where the unregulated child alienation expert Melanie Gill did not have her CV screened by CAFCASS before being appointed, and the ACP-UK had been contacted about her in respect of six different cases in the past year. ACP-UK later looked at her reports and determined that her reports were of “particularly poor quality” and “totally inaccessible”. It is therefore questionable whether unregulated experts, who risk providing poor reports and are unaccountable to any professional organisations, should make diagnoses that have such drastic consequences to parents and children in the family court.
Unfortunately, the court has not sufficiently dealt with this wild west of unregulated experts. Joint guidelines by the Family Justice Council and the British Psychological Society state the courts should “expect that all psychologists based in the UK providing evidence in the family proceedings are regulated by the HCPC and/or … have chartered membership with the BPS”. In the most recent case of F v M (3), however, the judge Sir McFarlane said the guidance does not have to be followed by the judges, and under the current law, anyone can call themselves a psychologist as long as they do not use the protected titles regulated by the HCPC. It is therefore regrettable that the court decide not to step in to resolve this issue satisfactorily and protect fundamental rights and interests of the public, especially victims of domestic abuse.
Ultimately, the court needs to rethink its role in such cases. Maintaining parental contact, especially good quality ones, with children is important as it promotes children’s happiness and growth into healthy future adults. However, our society also has an obligation to protect children and parents’ safety, especially when the risk comes from behind closed doors and the harm is often greater than violence and abuse in public. This obligation, arguably, trumps the courts’ other obligations to promote and regulate contact, because they engage the most fundamental human rights of all, namely, the right to life and prohibition of torture and inhuman and degrading treatment. If the court fails to sufficient safeguard these rights first and foremost, it will be a gross dereliction of duty towards the society’s most vulnerable citizens and an unjustified and profound devaluation of human life and dignity.
