Parental Alienation and Transfer of Primary Care

Insights - 02/10/2019

Kaya Suleyman, Assistant Executive in our Family department explores parental alienation and the transfer of primary care looking into the guidance issued by The Children and Family Court Advisory Service (Cafcass).

In recent years there has been widespread concern about parental alienation among the public, the media, and the social work sector. There is no single legal definition of parental alienation in England & Wales, but in broad terms it is used to describe the psychological manipulation of a child into showing unjustified fear, disrespect or hostility towards a parent or carer.

Parental alienation reportedly occurs in 11-15% of divorces in England & Wales and the impact on families can be devastating, resulting in the child developing feelings of anger and resentment towards the other parent which can persist throughout that child’s life.

So, what can a parent do if they are being alienated from their child and how do the family courts in England & Wales deal with such issues?

Cafcass have issued new guidance in relation to all cases of suspected parental alienation.

The guidelines recommend that family courts ensure parents attend an intensive 12 week ‘Positive co-Parenting Programme’. If this course does not result in a positive change in behaviour, Cafcass will routinely recommend that the court remove the child from the offending parent and, in extreme cases, have no further contact with them.

In the recent case of Re MFS (Appeal: Transfer of Primary Care)[2019] EWHC 768, the father alleged that the mother, who was the primary carer of their young child, was alienating him and this was causing the child emotional harm. The mother would not stop her behaviour, and so the father applied for the child to live with him instead.

The court directed that Cafcass and another expert carry out a report into the parents, and they both concluded that the mother was obstructing contact and speaking to the child about matters which could seriously affect the child’s relationship with the father. It was apparent that the child began to identify with the views expressed by the mother, including allegations against the father which the experts determined were unfounded.

The Judge decided that if the child remained in the primary care of the mother, the child would likely suffer “significant emotional harm”. He ordered that primary care of the child be transferred to the father on the basis that this would facilitate positive relations with both parents. The decision was upheld by the High Court on a subsequent appeal by the mother.

It is important to know that not all cases of parental alienation will result in a substantial change in that child’s living arrangements such as a transfer of primary care to the non-resident parent or carer. A court must first consider the welfare checklist before any decision is made about where and with whom a child should live.

For example, it may be highly disruptive for a child to move homes, so the court will need to be satisfied that the positive long-term benefits of a court-ordered change outweigh the short-term disruption. Any change in a child’s living arrangements will not be ordered as a punishment for the parent who is obstructing contact.

The case demonstrates the seriousness with which Cafcass and the courts view parental alienation, and, where it is necessary to protect the welfare of a child and prevent serious harm, a court may order that a child lives with the other parent.

If you have been affected by parental alienation and are in need of legal advice, our specialist family lawyers and children lawyers can help. If you have any questions please contact Kaya Suleyman, Assistant Executive in our Family team. Kaya is contactable by email at [email protected] or telephone on 01737 854 588. 

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.