Parental Alienation by the Family Courts

“There is a judgement by Lord Justice Macfarlane and a judgement of mine that makes it clear the starting point has got to be a proper relationship with all members of the family … The problem is … that it is not a principle that is properly applied in the real world on a day to day basis.” The Rt. Hon Sir James Munby, President of the Family Division

It is a reasonable assumption that the family courts make fair and sensible decisions based on the best interests of children. With evidence provided and clear guidelines, it should not matter which judge presides. However, judges are individuals, susceptible to their own preconceptions, prejudices, and moods. They have varying levels of experience, skill and professionalism. Their decisions can be coloured by their background, personal lives, or they can simply be having a ‘bad day’. Prior to the 2004 Children Act, 90% of sole custody orders were made in favour of mothers. Since then, figures have not been made available. However, in 2013, the Office for National Statistics reported that 91% of single parent households were headed by mothers.

Since men are usually the higher wage earner, mothers are more likely to be supported by Legal Aid. With court costs swiftly running into tens of thousands, for many men, fighting for contact/residency is prohibitively expensive and they are forced to give up at this stage. Less costly self-representation is ill-advised as judges are often hostile to non-professionals attempting to manage proceedings.

If able to continue through the courts, couples may be directed to conciliation before entering the courtroom. Both parties will be advised that if they do not reach an agreement, the judge will likely consider them as being unwilling to compromise, and therefore, unreasonable. Under the threat of losing contact, there is overwhelming pressure to disregard the best interests of the child and concede an unsatisfactory arrangement. The judge can then ‘rubber stamp’ the ‘agreement’, bypassing judgement and any culpability.

The judge will evaluate each parent’s ability to provide a stable home environment and care for the child. In order to maintain a home, the father is expected to have a regular income. This invariably requires him to be in full-time employment, and as a consequence, makes him unavailable to care for the child. Even if the mother’s commitments mean that she won’t be available either, she will still be regarded as being able to care for the child.

Judges require a Cafcass officer to investigate the child’s situation and present a report with recommendations for contact. They will invariably concur with the recommendations, effectively meaning that the ruling is determined solely by the Cafcass officer and the judge avoids any culpability.

A judge may choose to directly involve minors as young as 12 in court proceedings in order to hear their wishes. A child subjected to Parental Alienation is almost certainly unable to voice anything other than the wishes of the alienating parent. In collusion with the alienating parent, Cafcass, solicitors and judges are free to proclaim that their decisions are based solely on what the child has said he/she wants.

Even if a shared residency or contact order is made, should the alienating parent continue to prevent contact, the only recourse is to return to court at further expense. Since penalising a mother with a fine or a prison sentence is not considered in the best interests of the child, there is little to deter her from breaking the order. Conversely, the court may even reward her with sole residence in order to conclude proceedings.