13 June 2016

Moving forward


Lisa Fabian Lustigman
Special counsel | UK

Parental Alienation is a difficult, complicated and emotive subject. It involves one parent trying to ensure that the child does not have a healthy relationship with the other parent. Usually by thwarting contact between the child and the other parent, encouraging the child to be hostile towards, or fear, the other parent, and sometimes making false allegations of physical or sexual abuse against that parent. Reading through blogs, articles and tweets of those affected by this will leave you feeling sad and worried for all those involved — reading articles by adults who experienced this as children will give you an insight into the devastating impact parental alienation can have long term. What those involved want and need is hope for the future. Hope that there will be increased awareness and understanding, and an earlier recognition of what is going on, and a plan as to what to do. What is very clear in all these cases, is that avoiding delay is key. Experts are required to act quickly and purposively to protect the children involved. In order to increase awareness and understanding, and so as to pool knowledge and ideas, Withers LLP together with 1 King's Bench Walk hosted a Seminar on Parental Alienation on 24 May. The room was filled with professionals (lawyers, experts, social workers and judges) and members of parents' organisations, all looking to the future and how to find a way forward to resolve this difficult problem. At the Seminar there was an emphasis on addressing the problems early, and dealing with any mental health issues of parents and children involved. Often the parent who is resisting contact, has issues that should not be ignored. Therapy can play a huge part in the way forward with parental alienation. It is also important to ensure that as much contact (even if supervised) continues during the proceedings. The longer one parent goes without seeing their child the harder it will be to undo the damage done by parental alienation. Delay is a key tool in the alienator's toolkit. It is interesting that the court must determine the 'ascertainable wishes and feelings of the child'. The word 'ascertainable' is key. In a parental alienation case, the court may decide that the child has been so emotionally damaged by their exposure to one parents' distrust of the other, that it is no longer possible to truly ascertain their feelings. A social worker at the Seminar made the point that often the child will say one thing but their behaviour tells a different story — by watching a child interact with the alienated parent the social worker could see that there was a relationship there that could flourish, if it were given a chance to. The earlier in the case that the court recognises that one parent is trying to alienate the other the better, as then the case can be dealt with appropriately. The Courts recognise that contact between parent and child is a fundamental element of family life, almost always in the interests of the child. It is to be terminated only in exceptional circumstances, and only if it will be detrimental to the child's welfare. However, when faced with a child (particularly an older child) who is adamant that they do not want to see their parent and feel that it would be damaging to them to be forced to have a relationship that they do not want, the court is in a difficult situation. This is particularly so in cases where any therapeutic solution will only work when the stresses of court proceedings are removed. The Courts do not want children embroiled in protracted litigation that causes tension and anxiety. Trying to establish what is in the child's best interests in these cases is an almost impossible job. What needs to happen is to find a solution before the child has become so entrenched in their feelings of hostility towards a parent. Often in these cases although the child is an older child by the time this decision is made, the court has been involved for years and the case began when they were very young. What can the court do to stop cases progressing into parental alienation? The most important lesson that I learnt from the Seminar is that everyone was keen to find solutions, and to deal with these cases purposively and decisively, with the interests of the child at the forefront of everyone's mind throughout. There were 3 specific points made at the Seminar: 1) Emotional abuse must be taken seriously by the courts 2) Most people thought that there should be a protocol for Parental Alienation cases, so that they are recognised as such and dealt with in an appropriate way – avoiding delay, involving experts early, and considering whether the child having separate representation 3) There should be a working party to undertake research and educate the judiciary and the public as to the damaging implications of this phenomenon. This is a difficult problem, but with an increased understanding, and intervention from experts to deal with the emotional and mental health issues that permeate these cases, I am hopeful we can find solutions. Lisa Fabian Lustigman and Jemma Thomas

Lisa Fabian Lustigman Special counsel | London

Category: Blog