Having practised family law in Scotland for nearly two decades, I have very commonly required to navigate suggestions of one parent doing or saying things in an attempt to cause difficulties for the other parent’s relationship with their child. Consequently, and with growing public and legal interest in the concept of ‘parental alienation’, in 2022 I wrote an insight on the topic of parental alienation. Parental alienation in Scottish child law | Brodies LLP The response to the publication of that insight reinforced my understanding that there was, and remains, significant tension in relation to the use of the concept in Scottish family law.

There have been, over the ensuing four years, developments in relation to the concept of parental alienation and the time is right to explore those developments.

Definition

The term ‘parental alienation syndrome’ originated in the 1980’s. It was founded on the basis that a child’s unjustified rejection of a parent could be identified as a distinct syndrome. That suggestion has, since then, been widely rejected as a clinical diagnosis. A child may resist contact for many reasons, including fear, harmful experiences, ordinary relationship difficulties, pressure from a parent, divided loyalties or a combination of factors.

There remains no single, agreed definition of ‘parental alienation’. Broadly, the term has been used to describe a child’s rejection of one parent said to result from psychological manipulation by the other. In recent years, however, debate has increasingly focused on the need to distinguish between the discredited idea of ‘parental alienation syndrome’ and the idea of ‘parental alienation’ in the context of child law disputes as this has actually gained traction in many countries, including England.

Guidance

In December 2024 the Family Justice Counsel (England & Wales) published landmark ‘guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienation behaviour.’ Unsurprisingly, the guidance explicitly rejects the concept of ‘parental alienation syndrome’ and, instead, establishes the concept of ‘alienating behaviours’ (AB) stating that a court would need to be satisfied that three elements are established before it could conclude that AB had occurred:

1) the child is reluctant, resisting or refusing to engagein, a relationship with a parent or carer; and

2) the reluctance, resistance or refusal is not consequent onthe actions of that parent towards the child or the other parent, which maytherefore be an appropriate justified rejection by the child, or is not causedby any other factor such as the child’s alignment, affinity or attachment; and

3) the other parent has engaged in behaviours that havedirectly or indirectly impacted on the child, leading to the child’sreluctance, resistance or refusal to engage in a relationship with that parent.

    ‘Parental alienation’ - disguising the real issues?

    In various jurisdictions across the world there are examples of courts using the concept of parental alienation in such a manner as to cause people to become fearful of reporting abuse on the part of the other parent (abuse towards them or their child) for fear of being accused of parental alienation.

    In 2023, the UN special rapporteur OHCHR | Call for inputs – Custody cases, violence against women and violence against children on violence against women and girls began examining whether this could lead to victims being disbelieved or subjected to further harm. Critics pointed to cases in which reports of abuse were treated as attempts to turn a child against the other parent, and to the serious consequences that could follow for children and protective parents. That concern remains important. An allegation of alienation should never become a shortcut for dismissing domestic abuse or assuming that a child’s account is unreliable. Courts must be careful to examine allegations of abuse, give proper weight to the child’s views and avoid relying on labels in place of evidence.

    At the same time, rejecting a disputed syndrome does not mean that harmful behaviour by a parent never occurs. Persistent denigration, emotional pressure, interference with contact, coaching or demands for loyalty may damage a child’s relationship with the other parent. Such conduct can affect a child’s identity, self-worth and wider family relationships and, depending on its nature and severity, may amount to emotional abuse.

    It is, therefore, welcome that the language used by professionals is evolving in its precision. Rather than treating ‘parental alienation’ as a broad-brush term, we need, in Scotland, to adopt the approach established by the Family Justice Council and focus on ‘alienating behaviours’. The focus of the courts, in Scotland and elsewhere, requires to be on ascertaining what has actually happened, why a child feels as they do and what response best protects the child’s welfare. It is my view that, generally, our Scottish courts have excelled in relation to focussing on welfare above anything else. In fact, the paramountcy of the child’s welfare is enshrined in legislation (Children (Scotland) Act 1995) such that “the court shall regard the welfare of the child concerned as its paramount consideration.” However, there is still work to be done in ensuring consistency of approach across the country, and that starts with the lawyers.

    The impact

    A child who feels that loving one parent betrays the other carries an immense and unfair emotional burden. A parent who loses a relationship with a child may experience lasting grief. Equally, a child or parent whose report of abuse is wrongly dismissed may be exposed to further harm. These risks are not competing concerns: a robust family justice system must be alert to the potential consequences for all concerned.

    Despite the passage of four years since I first wrote on this subject, my conclusion remains largely the same. If the term ‘parental alienation’ is to be used more readily in Scottish child law disputes, then it requires to be utilised with caution and only by those who understand its meaning. It is important that solicitors and the courts have a clear understanding of all of the different factors which may cause a particular child to resist contact – the label given to those factors, be it 'parental alienation' or something else, is not necessarily that important. Caution, in relation to utilising such a term, is required due to the inherently multifaceted processes by which children can be drawn into their parents' hostile relationship and which may result in them rejecting one of their parents.

    Contributor

    Sarah Lilley

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