Domestic Abuse Bill – Response to the Independent Victim’s Commissioner

10th March ‘21
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In February 2021, we wrote to the House of Lords expressing our concerns over the misleading and erroneous briefing provided by the Independent Victim’s Commissioner for London (“IVC”) in regards to the inclusion of Parental Alienation in the Domestic Abuse Bill.

The main conclusions of the briefing from the IVC are these:

  1. Parental Alienation (“PA”) claims are becoming more prevalent and are used, mostly by men, to counter allegations of domestic abuse.
  2. There is no generally accepted definition of PA and there is a wide range of views on what constitutes PA and how to identify it.
  3. There is a total lack of empirical studies supporting the existence of PA.
  4. Wishes and feelings work is flawed and the voice of the child is often not considered during family court proceedings.
  5. Allegations of PA appear to be given more weight than allegations of abuse as they are often backed up by “expert” testimony and evidence, leading judges to make unsafe decisions around child contact or residence.

Calibrate Law is a specialist law firm with substantial experience of PA cases. We note that there are several surprisingly fundamental flaws in the briefing:

  • Errors of law concerning the application of family law in respect of the Children Act and injunctions – see below.
  • Proceedings in the Family Courts are private which means that data and empirical evidence is not readily available to the public nor governmental bodies.
  • Family law cases do not fall into distinct categories in respect of allegations of abuse. This can impact on their recognition and identification when considered by a lay person.
  • There is an absence of representation from a suitably qualified psychiatrist or any professional body which works with children, notably CAFCASS or CAMHS.

Here are the comments of Calibrate Law on each of the key briefing conclusions:

Point 1

It may be right that PA claims are becoming more prevalent. If true, the explanation is likely to be that this form of abuse (PA is itself a type of domestic abuse) is on the increase. That would suggest that urgent action is required to eliminate it.

Illogically, the briefing jumps to the opposite conclusion: “There is mounting evidence that allegations of PA are being used in the Family Courts to counter, diminish or negate allegations of abuse – either inadvertently or deliberately.” Given the previously acknowledged absence of empirical evidence by the IVC, this is a misleading statement. In any event, generalisation is unhelpful as, for every case in which an allegation of PA is rejected, there will be another in which an allegation is sustained.

Our firm’s overall experience shows that specialist family judges are capable of weighing the evidence that is presented before them. In some cases, there will be compelling evidence of PA; in others, the evidence will point towards abusive behaviour by the party making the allegation. We are inclined to agree with the author of the briefing that it will not be every case in which expert evidence could assist the judge.

Nevertheless, there will be cases in which a psychiatrist or another suitably qualified expert may be able to provide invaluable insight. Ultimately, the decision is one for the judge who has the legal knowledge and specialised experience necessary to make these difficult decisions. 

Point 2

The Children and Family Court Advisory and Support Service (“CAFCASS”) states:

While there is no single definition, we recognise parental alienation as when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Whilst this definition of PA may not be universally accepted, there can be no doubt that behaviour fitting this definition has been and continues to be observed in individual cases. It would be a very odd development if legislation were not to be brought forward to right a wrong purely because there may be alternative views of how to define that wrong. 

Point 3

Due to the private nature of the U.K. family courts there is indeed a limited number of agreed empirical studies supporting the existence of PA, however there can be no doubt of its existence. Specifically, there is 40 years’ history of and practical writing on the subject – see the CAFCASS website and the judgments of the many courts that have confirmed its existence and which are publicly available, for example, Re H (Parental Alienation) [2019] EWHC 2723 (Fam) reported at  www.bailii.org

Point 4

In cases where children have been alienated from a parent, the child will display behaviour that expresses resistance to contact with the alienated parent.  This is the very nature of alienation and it is the breakdown of this relationship that the court is seeking to restore.

In this context, there may be inherent tension between a child’s wishes and feelings and their best interests. Expert psychological assessment and the court process will need to draw a distinction between the two. The court will rely upon the correct application of Section 1 Children Act 1989 (“the Welfare Principle”), which sets out that a child’s welfare is the paramount consideration in cases under the Children Act (to which no reference is made in the IVC briefing).

If it is not addressed at the appropriate time, the internal conflict for the child between perception and reality can ultimately lead to a host of mental health conditions. 

Point 5

Judges are human and errors can always be made. However, it is unlikely that judges have been led into error because expert evidence is called to support allegations of PA whereas expert evidence is rarely called to support allegations of abuse. Expert evidence can be challenged, as can factual evidence, and judges are generally capable of establishing the truth from the totality of the evidence placed before them.

That said, there is a role for judicial training and PA is precisely the type of issue on which even specialist judges might benefit from expert education.

Conclusion

There can be no doubt that PA occurs and that its effects can be devastating for the innocent parent (and children). For that reason alone, it deserves to be recognised in law. Experience shows that it can also have a “multiplier effect” with multiple adults and children cut off from their relationships with the child in question. There can be many innocent victims in addition to the affected parent.

Far from demonstrating that there is no need for PA to be defined in legislation, the briefing paper supports, insofar as it is evidence-based, the desirability of Parliament establishing a firm definition of PA. A legal definition would establish the parameters within which expert evidence will be relevant and admissible, thereby eliminating the admission of opinion evidence from inappropriate expert witnesses and dispensing with the perception (if it exists) that family judges give greater credence to expert-supported PA allegations than to allegations of abuse.

There is an absence of representation from any professional body which works with children. Our recommendation would be to involve CAFCASS in the debate. We would also suggest a slight variation from the CAFCASS definition, viz.

Parental alienation exists whenever a child’s resistance to, or hostility towards, one parent is objectively unjustified and is the result of physical or psychological manipulation by the other parent.”

 

If you are a victim of Parental Alienation and would like legal advice on your matter, please contact our Family Law team.

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