14/04/2020
Parental Alienation and the Burden of Proof
I have been having a look at CAFCASS’s ‘Child Impact Assessment Framework’. I think that this needs to be read in conjunction with the assessment of Parental Alienation from Dr Amy Baker, who says:
“Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so”
Other experts agree that this is so, including Dr Craig Childress, Dr Steven Miller and others.
An alternative formulation might be something like:
‘In the absence of indications to the contrary, most children who reject a parent have been manipulated into doing so’.
In (yet) other words, if a child rejects a parent, “the thing speaks for itself”, or, as lawyers say “Res Ipsa Loquitur”.
This is a tactic used in negligence cases. For example, if you are injured at work when a hammer falls on you whilst you are walking past some scaffolding, your lawyer might plead “Res Ipsa Loquitur”. So, whilst normally you (the injured party) have to prove negligence – i.e. the burden of proof lies with you – in a case like this, you can argue that, as a rule, hammers do not fall from scaffolding without negligence. Now the burden of proof reverses – rather than you having to prove negligence, the site owner, or employer, has to show that there was not negligence.
It’s exactly the same with Parental Alienation. The fact that a child is rejecting a parent speaks for itself. So, logically (a word that’s not exactly flogged to death in our family courts) the burden should now pass to the other parent to show that the child is rejecting you for reasons other than Parental Alienation.
Why is the Burden of Proof important?
If you look through the CAFCASS stuff, you will see that there are many reasons adduced as to why a parent might reject a child. CAFCASS officers have to consider:
Indicators of domestic abuse such as coercive control;
Indicators of conflict which is harmful to the child;
Indicators of child refusal/resistance to spending time with a parent such as alienation;
Indicators of other forms of parenting where these are assessed as harmful to the child.
And yes, all of these factors should be considered. BUT…
If it is true that “Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so” then we ought to consider these other factors only when PA has been rejected as a reason for the rejection. This makes life simpler.
So instead of CAFCASS officers investigating a situation and trying to ‘bake their cake’ from a jumble of many possible ingredients, he or she should start by saying:
“OK, is there any PA here? If so, I will recommend [..more contact, transfer of residence, whatever]. If not, I will look at some of these other factors”
You might also notice CAFCASS’s description of “alienation”. Not parental alienation, not Alienation, and definitely not Parental Alienation. This is important, and betrays the bias that we witness daily. I noticed this because this is how the new Family Court President referred to the concept in his address to Families Need Fathers…just ‘alienation’… The ‘system’ simply will not accept Parental Alienation as an established concept.
This is problematic, because the onus lies with the alienated parent to establish that the child is rejecting him because of PA and ONLY because of PA. How can he prove this? Well… In my case, District Judge Stewart at Southampton Family Court refused to make such a finding despite the following:
1 My child and I had a perfectly good relationship until my relationship with his mother turned sour. Why, I wonder, would the father-child relationship ‘go south’ as soon as the parental relationship did likewise?
2 The mother refused to attend court for hearings;
3 The mother ignored court orders (as the judge said, she appeared to be “sticking two fingers up” to the court;
4 CAFCASS gave evidence that she was doing nothing to foster my relationship with my child;
5 Notwithstanding all of this, I was granted indirect contact only. Other might find this astonishing. You, dear reader, I know, will not.
Well, so what? All these points could be made perfectly well in most other cases! Indeed, if we look at McFarlane’s own judgment in re L 2019 we can see many, many examples of the mother alienating the dad, refusing to comply with orders and so on. Yet, although the right result was achieved, there was no ‘Parental Alienation’ present, apparently… Again, if you look at the case law, you will find many such cases – loads of symptoms, but a persistent and wilful refusal to diagnose.
So, where does this leave us?
In the practical world, you’re gonna need an expert diagnostician (that is, not Karen Woodall) to diagnose PA. And they cost a minimum of £5k – usually much more.
Questions Arising
Should YOU be funding an expert’s report to prove that PA is present? Or (given my mooted reversal of the burden of proof) should the other party do so, to demonstrate that it is not? It is worth noting that alienators are never ordered to pay any costs at all. If anyone can find one example of that being done, I would be surprised to hear of it.
Given Mrs Justice Parkers comment that experts can usurp the role of the judge and the case of re A 2019 where Judge Wildblood highlights the use of so many experts that he lost count (!), do we actually need experts? The judge is (or should be) enough, as Mrs Justice Parker opines.
When will judges accept that PA is present in any particular case or indeed exists at all?!
In re A, above, it took the court FIVE YEARS to work out what the mother was doing. Perhaps better judicial spectacles are called for in the hope that they can help judges to see further than the end of the judicial nose…
