When Implacable Hostility leads to Parental Alienation. When Implacable Hostility leads to Parental Alienation.

Kathryn Mullan, LL.B. LL.M, Solicitor 

John Boston & Company 

Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges of Family Law.

– Baroness Hale – Re G [2006]

These words will resonate with all Practitioners working in Family Law. Parenting post separation is undoubtedly a challenge. Physically sharing your children with someone who makes you feel angry, distrustful or impossibly hurt is incredibly difficult. In most cases, people can see the importance of their children having a positive and loving relationship with both of their parents and are prepared with advice and support to work through their own very tough emotions to ensure that their children cope as well as possible with the changes to their family. However, there is an increasing majority of us who deal with parents who cannot see any benefit in maintaining a relationship with the other parent after separation and are “implacably hostile” in a bid to undermine a child’s relationship with the other parent. It is estimated that 80% of the most difficult cases before the Courts involve issues of implacable hostility.  

 

What is Implacable Hostility? 

In Re B (A Minor) (1984), the Court of Appeal first used the term “implacable hostility” to describe the mother’s “invincible opposition” to contact.  

Implacable hostility cases involve extreme and persistent objections to contact taking place. It is not simply a term used to describe a tricky mum or an awkward dad. Instead, it is a specific term reserved for the most obdurate of parents. These are the parents that will go to any lengths to prevent or sabotage their children from having a meaningful relationship or relationship at all with the non-resident parent. If only two words could be used to describe implacable hostility, I would say that it is insidious and sustained.  

The desire of the hostile parent to sabotage the relationship outweighs any acceptance that what they are doing is not in the best interests of the child, and they may genuinely believe this to be the case. It is especially difficult if the resident parent is certain that their judgement of what is in the child’s best interests is more accurate than that of the Court.  

Why does it happen?  

There can be a number of reasons from control to revenge, to the genuine belief it is in the best interests of the child not to have contact. Every case is different. Sometimes it can be about one parent wanting to have the other parent’s bad behaviour exposed in Court so that they can have their own feelings or beliefs verified by a Judge.  

At some stage, children caught up in these situations of extreme implacable hostility between parents become totally resistant to contact with the absent parent. This parental alienation adds a further, often insurmountable barrier to progressing contact in any meaningful way.  

What is Parental Alienation? 

Parental alienation involves the “programming” of a child by one parent to denigrate the other, “targeted” parent, in an effort to undermine and interfere with the child’s relationship with that parent. It is often a sign of a parent’s inability to separate from the couple conflict and move beyond the overwhelming animosity which consumes them to focus on the needs of the child. Such denigration results in the child’s emotional rejection of the targeted parent, and the loss of a capable and loving parent from the child’s life. Psychiatrist Richard Gardner developed the concept of “Parental Alienation Syndrome” 20 years ago, defining it as:  

“….a disorder that arises primarily in the context of child custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.” 

Children’s views of the targeted parent are almost exclusively negative, to the point that the parent is demonised and seen as evil. The impact on the child is highly damaging and abusive. Mr Anthony Douglas, the Chief Executive of the Children & Family Court Advisory Support in England and Wales said, “I think the way in which you treat your children after a relationship has broken up is just as powerful a public health issue as smoking and drinking.”   

How does Implacable Hostility and Parental Alienation present itself in reality? 

Parental alienation involves a set of strategies and there are a number of different examples which encapsulate hostile behaviour and present significant challenges to the Courts and Practitioners, such as:  

  • Refusing communication between the child and the non-resident parent, creating either a very difficult environment for contact or preventing contact at all;  
  • Making patronising or unpleasant remarks about the non-resident parent to the child which can undermine their relationship; 
  • Erasing the non-resident parent from the life and mind of the child (forbidding discussion and pictures of the respective parent); 
  • Creating an impression that the non-resident parent is dangerous; 
  • Belittling and limiting contact with the extended family of the targeted parent; 
  • Suggesting an attractive alternative to seeing the other parent;  
  • At the last minute “something happens”, which means that contact cannot take place; and 
  • False allegations of violence, neglect or sexual abuse of the child (see the leading case of V v V [2004] EWHC 1215).  

The case of Re S (Transfer of Residence) [2010] is an extreme example of parental alienation. The courts did everything within their powers to encourage a relationship between the alienated child and his father, ultimately to no avail. This case of implacable hostility was litigated over years. The transfer of residence failed and the father agreed to withdraw his application. 

Why is awareness and the impact of Hostility important to Practitioners?  

Every child has a fundamental right and need for an unthreatened and loving relationship with both parents. Hatred is not an emotion that comes naturally to a child; it has to be taught. A parent who would teach a child to hate or fear the other parent represents a grave and persistent danger to the mental and emotional health and well-being of that child.  

There has been extensive research carried out in relation to the long term effects of parental alienation from childhood.1 The reality is, implacable hostility which consequentially can result in parental alienation, is a form of emotional abuse to the child. It is largely an overlooked form of child abuse, as Practitioners are often unaware of, or minimise its extent by acceding to the instructions of their client.  

The severe effects of parental alienation on children are well documented – low self-esteem and self-hatred, lack of trust, depression, substance abuse and other forms of addiction are widespread, as children lose the capacity to give and accept love from a parent. Self-hatred is particularly disturbing among affected children, as children internalise the hatred targeted toward the alienated parent, are led to believe that the alienated parent did not love or want them, and experience severe guilt related to betraying the alienated parent. Their depression is rooted in feelings of being unloved by one of their parents, and from separation from that parent, while being denied the opportunity to mourn the loss of the parent or to even talk about them. Alienated children typically have conflicted or distant relationships with the alienating parent also, and are at a high risk of becoming alienated from their own children.2 

Given the severe impact of this type of behaviour on the child, it is extremely important as Family Law Practitioners, to be aware of and identify the impact of hostile behaviour at an early stage to prevent long term and irreparable damage to the child and the family unit as a whole. 

What is important to the Courts? 

The Courts will seek to do what is in the best interests of the child. For this reason, there is a presumption in favour of contact as it is considered a child’s right, unless of course contact would be contrary to the child’s welfare. Objections to contact will fail when the child’s welfare requires that contact be promoted with the non-resident parent. 

When considering making an order, and deciding what will be in the best interests of a child, the Courts undertake a balancing exercise based upon the Welfare Checklist. 

Courts faced with a child who expresses resistance to contact are becoming increasingly alert to the possibilities of implacable hostility and parental alienation at play. Historically, the Courts have struggled with the issues of implacable hostility and parental alienation. In recent years, there has been growing judicial emphasis on hearing and exploring the ‘voice’ and ‘wishes and feelings’ of the child when making decisions about their welfare. Whilst this course of action is extremely beneficial and the Court Children’s Officers provide invaluable assistance, their resources are extremely limited.  

Judges will explore the domestic situation underlying a child’s expressions to verify their reliability. This is particularly the case where we hear more often than not, the hostile parent telling the Court that they are supportive of contact but that it is the child who is resistant, thereby misleading the Court into thinking that the problem lies with the child, rather than the causative behaviour of the parent. 

Dealing with Intractable Disputes  

Making an Order is one thing, but making it stick can be quite another if one parent is determined for the children not to be part of the other parent’s life. Sometimes an Order is complied with to begin with and then contact begins to deteriorate. Other times it never gets off the ground. 

Managing intractable disputes and “policing” those who refuse to comply with Contact Orders is an exceptionally difficult undertaking for the Courts and as yet, nobody has come up with a magic solution to the problem. 

Within the Family Proceedings Court, the initial solution which may spring to mind is that a party can issue a Contempt Summons but in reality, this has no teeth. If there are concerns that an Order is being flouted, then it is important that this is addressed at an early stage and if the Court is of the view that it is a case of implacable hostility/parental alienation then consideration should be given to a transfer to the Family Care Centre as soon as possible as the Family Care Centre can attach a Penal Notice to the Order. If the matter remains in the Family Proceedings Court, there is a real risk that this may simply result in further delay and procrastination by the opposing party and valuable time is lost, with the children being susceptible to further influence by one or other party.  

Whilst the Courts can threaten to impose a custodial sentence on a parent defying a contact order4, this threat is rarely, if ever followed through within our jurisdiction. It is a balancing exercise and a Judge will always have to consider the impact of such an action on a child as further resentment could be built between the child and applicant parent if the child perceives they have sent their other parent to prison. 

The Courts do have powers to transfer residence from the resident parent to the non-resident parent. In the case of V v V5 the residence of two children was transferred from mother to father due to Mrs Justice Bracewell, finding that the mother had made false allegations of sexual, physical and emotional abuse by the father and his family. In arriving at her decision, Mrs Justice Bracewell stated that the last resort for the Court would be to “give up”. This is where no contact is ordered due to the fact that the children are so damaged by what the offending parent has told them that they come to believe it themselves and think that they do not want contact with the other parent. In these circumstances, ordering contact or even a change of residence could cause further significant harm. This is the hardest decision to make for a Judge or a parent who decides that pursuing their case any further would cause extreme upset to the child.6 Mrs Justice Bracewell believed that such allegations made by the mother and the parental alienation caused to the children would continue if they remained with the mother. She found the father to be very reasonable, loving, capable and financially able to have residence of the children which was ultimately in their best interests. 

The situation can be made more complex when there are genuine fears and incidents of violence or threats of violence and the fears of the resident parent are indeed reasonable and where significant issues relating to harm to the children arise. In the case of Re L (Contact: Domestic Violence), the Court decided that there should be no presumption either way in favour of contact, but that there should be a balancing exercise based upon the welfare checklist as well as previous contact between the parties. Where violence is proven, the Courts will look at the willingness and ability of the individual to recognise and address their behaviour and the effect which it has had on the child. The welfare of the child is of course the paramount consideration and contact will not be imposed if there is any risk of significant harm to the children.   

In some less extreme cases a Shared Residence Order is often considered. As Lord Justice Wall states in Re P (Children Shared Residence Order)7 

“Such an order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents.  The order can have the additional advantage of conveying the Courts message that neither parent is in control and that the Court expects parents to cooperate with each other for the benefit of their children.” 

Is there a happy ending? 

The consequences can be tragic and some parents give up altogether. It is incredibly frustrating because non-resident parents can feel so powerless. While the Court can grant an Order, the reality is that they can be very difficult to enforce. 

It is hard to know the real impact on children as some are too young to communicate clearly. Those who are of an age to “know what’s going on” can be reluctant to speak candidly about their wishes and feelings because they do not want to be disloyal or take sides. 

The more Contact Orders which are flouted, the more frustration builds with what seems to be an unjust and increasingly hopeless situation. Sometimes the process generates more questions than answers such as “Why isn’t the court doing anything?” “Why is this person allowed to ignore what a Judge says he or she has to do?” These are questions which we regularly face as Practitioners.  

To an outsider it is all too easy to think, why can’t two grown-ups sit themselves down and sort something out? But the travesty is, for one reason or another, they just can’t. The outcome is months or even years of legal wrangling, leading to a decision handed down by a Judge that, in many cases, a sensible pair could have arrived at themselves without the acrimony and toxicity that the legal proceedings can generate. Above all, the children’s welfare is often sadly overlooked at a time when they most need a positive environment and robust infrastructure around them. 

Final Thoughts 

Each case is unique and there are no easy answers as to how to manage intractable contact disputes within a legal framework.  

It would seem that the Court has numerous options within its powers to deal with implacable hostility and its ramifications. The reality, in my opinion, is quite the reverse and many parents are left feeling hopeless. As Practitioners, I believe that it is vital that we recognise the signs of implacable hostility/parental alienation at an early stage and ensure that clients are made aware at the outset of proceedings about the impact which their behaviour can have on the children in addition to the potential consequences of disobeying any Order made by the Court. Perhaps two questions that could be posed to clients and which can sometimes focus their minds are:  

  1. What do you wish for your child in the future? A mother and fathers wishes are generally the same for their children E.g. health and happiness, self-fulfilment. 
  2. Fast forward 5 years. If you asked your child how did their mother and father deal with their separation, what would they say?  
  3. It is our duty to advise our clients appropriately and not allow such destructive behaviour to perpetuate or escalate.