Professionals working in the field of Child Law are more than likely to have heard of the expression “parental alienation”.
For some years now this concept, which some classify as a “syndrome”, has been used to describe the steps taken by one parent to isolate, or ‘alienate’, the other parent from the lives of the children of the relationship. For example, a mother with primary care of the children may say that contact between the father and the children is not in the children’s best interests, focusing on failings and shortcomings of the father as support for denying contact. Other tactics might be more subtle, such as deliberately arranging an activity for a child to coincide with a contact opportunity with the non-resident parent. More concerning are the things said and done by the parent with care to the children themselves, as a means of fostering the child’s negative view of the other parent.
A parent’s motivation for taking the approach of alienating the other parent may be complex, but family lawyers will regularly see a parent suffering from emotional hurt happy to “punish” the other parent by denying, or at least controlling, a relationship between a child and their non-resident parent. Often the views of the child will be used as justification, with the resident parent saying that the child has no desire to see the other parent. It is not always easy to examine the reason for a child expressing such a view, and establishing the extent of the influence of the resident parent is difficult to judge. So, these cases can be very hard to manage, not just for the parent looking for contact, but also for the solicitors involved, and indeed the Court, if it goes that far.
In Scotland we have a legislative framework which creates responsibilities upon parents, and rights which flow from those responsibilities. One of the rights is the privilege of having a child living with you, but partly that is a function to fulfilment of the duties imposed by the legislation, and that includes doing what is right for your child’s development and welfare. In a situation where parents live apart, the non-resident parent has a right to contact with a child, but this follows from the responsibility the parent has to maintain contact with the child, because contact between a child and its parents is deemed to be in the child’s best interests. Unless there is a very good reason why it would not be in a child’s best interests, the development and welfare of children must include maintaining a relationship with the non-resident parent. Scotland’s judges recognise the long term benefits to children of them having a relationship with both their parents, as explained to the courts by psychologists. The negative impact upon children by being denied a relationship with the parent is well documented. Children who are said to have experienced parental alienation are more likely to suffer from mental health issues in adulthood. Crime and addiction can become a problem. And what is often not realised at the time is that children can turn against the parent with care upon realisation in adulthood that they have been manipulated away from a relationship with the other parent.
In Scotland, it is often perceived as difficult to deal effectively with an uncooperative parent, even with the existence of Court Order. Some other jurisdictions take a very firm view, however. For example, in Canada, there is a strong jurisprudence about the enforcement of contact orders. It is not considered a “defence” to flouting any Court Order on the basis that children say they won’t go for contact. There is an onus on the resident parent to show clearly what they have done to encourage contact. The analogy is often drawn with a child attending school. If a resident parent cannot ensure a child’s attendance at school, it calls into question parenting ability. A similar approach is taken in relation to a child’s contact with the other parent.
Mediation is an opportunity for parents to be educated as to the fall-out that affects children, not only by a denial of a relationship, but also by being exposed to conflict and acrimony between parents. There is a perception that mediation will be unsuccessful if a party is not willing to engage in it, but I would suggest that mediation is an opportunity for parents to be encouraged to “hold up the mirror” and reflect on their conduct and whose interests are, in fact, being served when disputing care arrangements for children. Some countries demand parents’ attendance at mediation before allowing them to set foot in Court. Interestingly, here in Scotland the Scottish Legal Aid Board will soon require parents to participate in mediation before agreeing to fund these types of cases.
A relatively recent initiative in Scotland has been the introduction of “parenting apart” sessions. These provide an opportunity for separated parents to meet with other separated parents, but not with the other parent of the relationship. Trained mediators and counsellors explain in detail how separation affects children, and what parents can do to ensure that a child’s best interests are being considered at all times. It is not mandatory (yet) but certainly in my experience, Sheriffs deciding cases involving children are keen to promote the use of the service.
But are these initiatives enough to prevent a very bitter parent from “freezing out” the other? In my experience, a parent determined to punish their ex will not be easily persuaded to look at their situation objectively. In that event, it is reasonable to expect the law to have the power to intervene in an effective and decisive way. One wonders if, as a last resort, the failure to do what is appropriate having regard to responsibilities of parents would be justification for a radical restriction on parental responsibilities and rights afforded to an individual.