Thanks Resolute, that is great, up to date guidance from Sir Andrew Macfarlane, responding to all the radical feminist views that accusing PA is a tactic used by abusers. And sets out the reality of the situation and explains it clearly.
I've just skim-read it so far but it's basically saying it is specific "alienating behaviours" like manipulation that need to be considered as the term "Parental Alienation" itself has become problematic (which we have known for a long time but it's become worse in recent years). While it is parental alienation, it is the alienating behaviours that the court deals with.
Some interesting statistics as well. It says 50 to 60% of private childrens cases including allegations of Domestic Abuse, which is a criminal offence, whereas alienating behaviours are harmful to the child (but doesn't seem to consider it a criminal officence - if I've read that right).
That means that at least 40% of applications don't include allegations of DA which is hopeful. But I wonder how they get those statistics - does it mean 50 to 60% accuse DA? Or does it mean that more accuse DA but it's ignored at the early stages if seen to be just bluster?
It also says that if findings of DA are found, findings of alienating behaviours won't be found. That sounds concerning - it means if a fact find is lost due to findings of DA then they won't even consider alienating behaviours. Which while it might sound reasonable, fact finds can be unreliable.
It also goes on to say that a child's rejection of one parent can be due to a number of factors - preferring one parent to the other, or circumstances around the marriage break up or not liking a new set up/partner/other children.
So what that is saying is unless there is evidence of the other parent using alienating behaviours then it won't necessarily be considered alienation if a child rejects a parent (one reason we say texts and emails are good evidence to show alienating behaviours and to also make sure your texts and emails are beyond reproach).
It goes on to say that if alienating behaviours have been established at magistrates level then the case MUST be transferred to a Judge (so this document could be a useful resource).
"Cafcass / Cafcass Cymru are not, however, arbiters of fact. It is a judicial function to determine the factual issues in the case" This is after a point that Cafcass section 7 might be needed to determine alienating behaviours. So it highlights the fact that it is for the Judge to decide, not Cafcass.
43. "The court should be cautious about ordering a stand-alone ‘wishes and feelings
report’ as the court may be better able to assess the child’s perspective with a
contextual report that carefully examines the child’s position"
It goes on to say again that if there is a fact find with both allegations of DA and PA (my terminology) then the DA needs to be dealt with first and if that is found proven then the PA will be dismissed.
55. " Whilst psychological manipulation of a child can be subtle and insidious, a parent
alleging Alienating Behaviours must discharge the burden of establishing both
that such harmful behaviour has occurred, and that this behaviour has led to a
child’s unjustified reluctance, resistance or refusal to spend time with that parent."
In other words - you have to prove it and although texts and emails can help prove behaviours, it ultimately means a professional report like an ISW or psychologists report.
At point 57 it says findings of alienating behaviours by a parent, will be rare. Because presumably it needs evidence of the parent's behaviours and them affecting the child. It is rare because it's hard to prove and often only wealthy people can afford good psychologists reports to prove it.
However "behaviours" by the other parent will be ascertained throughout and even if there is no "label" of alienating behaviours, an outcome can be affected (ie a better order) by showing the other parent's negative behaviour (and sometimes they do that all on their own in their final statement).
My view on this is, while it's rare to prove one parent is alienating the other, it can still result in a good order depending on the "behaviours" but that doesn't exactly help the child stuck in the middle or on the receiving end of manipulation. But general advice is - the more time you get, the less impact the alienating behaviours will have on the child and the more criticial thinking skills they can develop, which protect them. And they at least have half the time with normality. That's advice I was given.
Point 59, while I understand what it's saying, I find a bit problematic.
"There is no equivalence between domestic abuse and Alienating Behaviours.
Domestic abuse is a criminal offence and both a parent/carer and a child may be
a victim. Where a parent is found to have engaged in Alienating Behaviours a
child will have suffered emotional harm."
It is basically saying there is no equivalence - DA is serious abuse of a parent and a child. But PA is only emotional harm to the child. ie it's saying emotional harm isn't serious abuse and it only affects the child, not the other parent! Alienating behaviours can include physical abuse of a child and severe emotional harm on a powerless parent, so I'm surprised at that bit. It seems to be trying to reassure victims of DA that their criminal offence will be taken seriously. It's a bit sad, after all these years that the severe mental abuse on a child of brainwashing, isn't seen as abuse rather than just "emotional harm". But that is maybe because much of it isn't provable as it's behind closed doors.
It goes on to clarify what happens in cases of false allegations
"64. Failed or false allegations of domestic abuse will not constitute Alienating
Behaviour unless there is evidence that the subject child has been manipulated
(on the basis of those false/failed allegations) into an unjustified reluctance,
resistance or refusal to engage with the allegedly abusive parent."
This is fair enough - false allegations don't necessarily mean the parent making the allegations is actually alienating the child (they may be witholding them though which is harmful but it is not considered "alienating behaviours". The child would need to be showing signs of rejection of the other parent. I think this is right but also slightly problematic, because if a child has been witheld for a long time, they can become estranged from a parent out of fear and self protection, but that is not "alienating behaviours". In most cases though, in the case of witholding, reintroduction of time resolves the issue and the child's bond is still there.
The court won't appoint an expert (eg ISW or psychologist presumably) unless absolutely necessary and the costs will be high. This is a bit of circular problem because how do you prove it's absolutely necessary when no evidence has been seen yet, or without the expert's report? A bit of a circular argument. That means they're reliant on Cafcass. However, providing DA has been dismissed then child arrangements should be happening, and if a child is blatantly hostile to going to see the parent, then that could be reason for an expert report.
It goes on to give guidance as to how to determine various welfare issues.
Ultimately the key words are "no known justification" for the child's rejection.
A section on psychological manipulation
"It is well established in law that some parents manipulate their children, and this
can include being manipulated to make false allegations in family law
proceedings, e.g., Re H (Children) [2014] EWCA Civ 733 (Parker J)"
It seems this would be classed as alienating behaviours but the term "manipulation" is more helpful than "alienation".
A section about appropriate experts and psychologists
Point 115. Any expert is acting for the court.
This is the result of a series of consultations which have been taking place for some time.
It needed issuing to cut the negative media dialogue about PA and to introduce balance and an authoritative judicial comment on what the situation really is. I think it is also intended to appease womens groups claiming everything is DA and if someone accuses PA then they must be an abuser.
But it sets out as it has always been in family court. Alienation is very hard to prove and needs to be proved - but there are other harmful behaviours.
I'm somewhat disappointed that "Alienating behaviours" affecting a child aren't classed as child abuse or abuse of the other parent - but that is maybe because they are not classed as such in law, whereas DA is classed as criminal behaviour in law. Coercive and controlling behaviour is classed as a criminal offence, but apparently that only applies to adults, not children (a failure of the final DA Act in my view).
But it is a very useful guidance to courts - and hopefully to Cafcass too.
Ultimately though, Cafcass is the sticking point as how can you prove anything if Cafcass don't spot things and no evidence is allowed until final hearing (except if there is a fact find).
www.judiciary.uk
That's because it's very hard to prove and many good orders are made based on things like "manipulation", "reprehensible behaviour". "abrogating parental responsibility" - or just all allegations dismissed and a view that a good final order will sort things out.
threadreaderapp.com