My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, December 17, 2020
Wednesday, April 15, 2020
Tuesday, March 24, 2020
There is no doubt that children can become alienated from a parent post-divorce or separation and that this happens regularly. The reasons, however, are often a lot more complicated than the explanation most frequently given ie that one parent is manipulating the child against the other parent. This characterisation sets up innocence and guilt as the parties at the table and makes the prize the child. That is not the way Judges do business and it does not benefit the child one iota. A rigorous process of enquiry based on extensive knowledge and training has to be undertaken in each case. Just as there is no doubt that a parent can manipulate a child deliberately or not, intentionally or unintentionally, there is also no doubt that accusations of parental alienation can be made to silence a parent who might expose abuse in the relationship or to silence a parent who it is anticipated could do this. Such accusations can also be made with varying degrees of seriousness to change the narrative. It is exceedingly important, therefore, not to rush to judgement as a professional or a parent so as to right a perceived wrong by making things worse. We should not allow or prejudices and fears as a parent lead us into unconscious bias. For this reason, I believe that early intervention, extensive education, and rigorous investigation are the keys to proper management of this situation. There are no easy fixes nor should there be, these matters are complicated.
Accordingly, this paper is not presented as a piece of academic research nor do I pretend that it is. I write my blog which you can find on the website as means of opening discussion on issues of the day. Such pieces are usually related to my work and they are written with ordinary people in mind, the kind of people I see every day in my family law practise.
Parental Alienation is a hot topic. Many believe it does not exist. Some seek statutory provisions which would effectively make it a criminal offence. There are also differences of opinion as to how this behaviour should be addressed and by whom. Equally, there are those who passionately argue that it is a major issue which needs to be addressed now. I come across something resembling parental alienation almost every week in my practice. It presents with varying degrees of seriousness. In some cases, the alienation is almost total and has been going on systematically for years. In others, the parties are not separated very long and the non-residential parent suspects that the children are being slowly turned against him/her generally manifesting in a cut back of the access time without explanation. The non-residential parent is advised that the children have activities scheduled on his or her access days or that they are sick a lot. Sometimes the residential parent advises that the children have expressed a definite view that they do not want to go on access and the parent residing in the house is unwilling to make them In any event, one definition of parental alienation is that “parental alienation takes place when a child sides with one parent and rejects the other parent without justification and despite a previously loving relationship”. Another definition is “Parental alienation is a deliberate attempt by one parent to distance his/her children from the other parent.” There are important components parts to these definitions, and they need to be each examined carefully. Parental Alienation can happen to either parent. It is not just something which men experience though in my legal practice it seems to be mostly men who believe that they are experiencing this. The second thing to note about the definition is that parental alienation only exists if it occurs without justification. In the second definition, it is characterised as a deliberate attempt i.e., not something which occurs without the parent being aware they are doing it. I think when you insert the word deliberate it becomes clear that this is something rare and not something common. In the context of marital breakdown, it is my experience that the hurt experienced and, depending on the surrounding circumstances, the disappearance of trust can cause the hurt and mistrustful parent to react negatively to access. This happens when a residential parent fails to distinguish between their own feelings of betrayal and those of a child/children. Occasionally, the rejection of a parent by a child is a logical move on the part of the child. It may be a reaction to emotional or physical abuse of themselves or the parent which the child witnessed or knew about. Accordingly, the child takes a stand against the abusing parent. The child appears to side with one parent but in essence, they are rejecting the behaviour of the other parent. In each case, the historical context of the alleged alienation must be examined as a first step. If a child is really manipulated by a parent they will likely reject extended family and friends of the rejected parent A child may not have been abused but might have witnessed abuse. Occasionally, an abused parent may have managed to keep the reality of their abuse from the child, however, the abused parent may have rational fears for the children when alone with the abusing parent. Accordingly, the starting point must always be to ask if the child has a valid reason or reasons for rejecting a parent such as abuse or neglect. Sometimes abusers don’t recognize their behaviour as abuse and often even when they are aware refuse to acknowledge the behaviour as abusive and seek to blame others and in this case that will be the other parent. Sometimes accusations of parental alienation can be used to protect abusing parents. Finally, the phrase “despite a previously loving relationship” is a key component of the definition. If a parent has been away for long periods during a child’s life or spent very little time with the child even while the marriage was ongoing, then it is unlikely that the child/children will want to exercise a great deal of access with that parent. However, the favoured parent can exploit this or can encourage the child to perceive it in a more forgiving light. It is very rare for a child who had a previously loving relationship with a parent to cease all contact with that parent. Once the evidence points to a previously loving relationship, then we are probably looking at a parental alienation case.
Studies have shown that adult children who endured parental alienation suffer from low self-esteem, self-hatred, abandonment issues, lack of trust, depression and are more likely to have substance abuse or addictions. It, therefore, behoves us to treat it with a great deal of seriousness and to educate ourselves about the concept of parental alienation. While family law practitioners in Ireland are familiar with the term, the law does not recognize it, despite the fact that the World Health Organisation did classify this briefly and ceased early this year, ie 2020.. As well as the term parental alienation, which was coined over 30 years ago, the term parental estrangement is also useful and it can be used to describe the earlier stages of difficulties in child contact before it becomes a case of alienation but where the effects are the beginning for the non-residential parent are similar to those affected by parental alienation. At this early stage, it is important to retain any and all contact no matter how spurned you feel by the other parent and or the child. No matter how small take whatever whenever. Unfortunately, it is a term also used to describe teenage children’s difficulties with their parents so it needs to be used and defined precisely. Quite often, well-meaning parents, whose primary trust relationship with their life partner has broken down, cannot differentiate between their own sense of betrayal and mistrust and the entirely different feelings a child or children might have. In time, when the edge has gone off things, parents usually come to see clearly those emotional distinctions between themselves and their children. As a result, the situation naturally calms down but sometimes things do not calm down and such people need assistance. The assistance at an early stage needs to come in the form of ADR (alternative dispute resolution) early in the separation process and it should involve some of the myriad forms of mediation and counselling which include co-mediation, one mediator, managed negotiations and collaboration as well as serious programs for change and education. In my view, co-mediation and collaboration would be best suited for these type of cases as both parties need to be held and teamwork will achieve that best. The worst thing that can happen at the estrangement point, would be lengthy delays in our ability to provide solutions during which time the children gradually become more estranged leading inevitably to alienation from the non-residential parent. It is for this reason that awaiting a child psychologist’s family report and recommendations as often happen in a court situation, where there have been initial delays in getting to see the family psychologist and then further delays while the process is ongoing and awaiting the report, may not lead to a successful outcome. By the time all that has taken place, the damage may already have been done between the period of time that elapsed before the agreement to appoint the child psychologist is put into place and the period that elapses during the process. Time periods of 9 months or a year can be very long in a child’s life. Time is of the essence. All the experts seem to stress this over and over. Please note that it is also clear that manipulative alienation can occur much faster than most people realize If one parent is withholding access from the other, then that situation will likely remain in place until the report is done and that in itself creates estrangement. If, for example, a residential parent is alleging that the non-residential parent is a neglectful or irresponsible parent and even an abuser, the courts will be slow to award access pending the report. While the court system, which is exceptionally prone to delay, backlogs and build-ups may not be the ideal place for this type of examination, a recognition of the concept by the court and how it might play out in family disputes is vital as this would lead to an early intervention to prevent long term effects for children.
Loyalty conflicts can arise in the aftermath of separations because the parties are experiencing a maelstrom of emotions and their tension and unhappiness is frequently communicated to their children even small children eg body language, poor reaction to schedule alteration etc., talking unhappily on the phone to friends or family or when they call. Allowing and even encouraging careless or abusive talk about the other parent by friends and family who will naturally take sides. If children develop headaches, stomach aches, tension, lack of energy, and other physical symptoms leading to anxiety and depression as well as disobedience and social withdrawal it is likely that the child/children are caught up in a loyalty conflict and this can very quickly become alienation if not dealt with quickly. It is very important to remember that children can sometimes decide to favour one parent because of a perception that the parent has been wronged or that the parent is the more vulnerable, the one hurt etc. It is also important to understand that children can exaggerate one cause over another for the breakdown. A child may be willing to denigrate a parent whose love is easily granted in exchange for conditional acceptance from a parent who was previously uninvolved or harshly punitive and rejecting. Equally a child may feel obliged to show loyalty to an emotionally fragile parent. Parent-child relationships are particularly vulnerable when the children are first informed of the breakdown or when one parent leaves home and these situations require careful management. Remember that a close relationship with your child/ren in the course of a marriage is no guarantee as to how things will work post-separation.
When a marriage breaks down it is seldom that there is not hurt, anger, sadness, jealousy, fear, loneliness and occasionally a sense of injury. Having an understanding of these emotions and their impact on both parents and the possible consequence is key to avoiding many of the pitfalls that arise post-separation. Feeling that you are the favoured parent helps to reduce those awful feelings of jealousy, anger etc.
Jealousy – your ex may be jealous of your new relationship. She or He may have a sense that the new partner will replace them in the eyes of the children. She or he may also be jealous of the other parent’s relationship with the children. She or He may feel it reflects poorly on them and seek to reassure themselves. Friends and family taking sides can aggravate these feeling of insecurity. The parent may be jealous of the time one parent gets to spend with the children over them. The transition to only seeing the children on designated parenting days is enormous. There may be also jealousy around money – ie one parent has more than another and therefore, able to lavish gifts and treats on the children. You cannot assume that parents will be able to see jealousy for what it is and know how to move to assuage those feelings or reassure the parent – they need to be told about them and they need to work through them with exercises etc to become aware and then they need to look at what they may be contributing to the situation and how to manage the situation. This applies both ways ie to both parents. To some extent at this early stage, it does not matter whether the behaviour is intentional or unintentional as the advice on how to handle it will likely be the same, ie the good advice. Later on, when the situation is more entrenched that advice might be different for various reasons.
Let's look at Fear. Fear is all pervasive in a separation situation. One parent fears the loss of their children, the loss of time with the children, the loss of money to educate them and the loss of their love. They have fears of losing control and of their future. Without professional intervention, these fears can just get worse over time not better. It is unnerving to feel that you have lost control. A parent caught up in this is unlikely to be a present parent. That parent will then experience guilt at not being present and in turn, may look to assuage those feeling by seeking reassurance from the child. Separation also aggravates the difference in parenting styles between the parents. I have written about this on the blog before. Those differences can be exaggerated and lead to more fear for the absent child if on contact. Loss of control can evolve into an irrational fear that the other parent will harm the child and that you need to rescue the child.
Guilt washes over everyone in separation. Guilt that the marriage failed, guilt that the children will suffer as well as guilt that you won’t be able to cope. Such feelings can lead to a need to be the favoured parent.
There are also feelings of shame, anger, sadness and loneliness which is quite the cocktail of emotions. There isn’t time here to go into these in any kind of detail but they are there in almost all cases no matter how they show up in conversations or body language and being aware of them whichever parent you are is a very important part of preventing them getting out of control.
For example, introducing the children to your new partner at a very early stage and without discussion may make you feel good but will cause negative feelings of jealousy, anger and hurt in your ex. Managing that introduction in a more sensitive way with the help of a professional might calm those emotions. Telling the children your version of the breakup without the other partner may allow you to tell your side of the story first but it does not and will not help the children who need to be reassured that both parents love them and that they are not somehow the cause of the breakup. Lavish spending on the children when they are with you may make you feel better but is unlikely to inspire generous feelings in your ex and more importantly is probably not good for the children or their perception of you. Realising the corrosive effects of fear and loneliness is very important. When the children go on visits to the non-residential parent seeing photos of the other parent in the new home is very reassuring both to them and to the absent parent should he or she hear if it and they probably will. Talking respectfully to the other parent in front of the children can be reassuring that you are not badmouthing them when they are absent. Allowing the children to make phone calls to the absent parent ….all these things can help. And finally providing within your means financially for each other and the children can greatly calm financial fears and anxieties.
The emotion which is most likely to lead to an alienated child is Narcissistic Injury. If your ex’s ego is bruised as a result of the divorce because you moved on he or she may come to view you as worthless because that is what they tell themselves to feel better about what happened. She or he may express thoughts like “No idea what I ever saw in him/her”. These may be heard by a child. It is only a short step to he or she has no redeeming qualities therefore they must be a terrible parent and it is accordingly difficult to see why a child would want contact or should have contact. It is, however, important to know that this can be professionally helped if caught early and that many people have these feelings in the first few years but recover.
What should happen when a person is found to be engaged in parental alienation? The answer to that may well partially lie with at what stage the behaviour is characterised and categorised. If it is still early days, the damage to the child/children may still be capable of being reversed. At this point also, the child may not suffer undue effects from a little coercion to repair the relationship with the estranged parent. We have to be very careful to ensure that a child, through no fault of its own, is not put in a position and certainly not accidentally, where he or she is effectively being punished in their own mind by having time taken away from one parent and given to another. It is for this reason, that changing custody of children arising out of withholding of access, by a court, may well turn out to be unintentionally punishing the child as a consequence of punishing the estranging parent. I am drawing a distinction, however, between the manner in which we address estrangement and the manner we should address parental alienation.
It is widely suspected that people who engage in parental alienation, i.e., deliberately and systematically destroying a previously loving relationship between a parent and child, are people with personality disorders. Not everyone with a personality disorder becomes a high conflict personality. Cases of parental alienation are characterised by a high level of conflict. A personality disorder combined with being What Bill Eddy calls ………..(ie someone who points the finger of blame for all their woes on others. a persuasive blamer seems to be a key ingredient to becoming a High Conflict personality which in turn is essential for parental alienation to occur.
When high conflict personalities are in dispute, there is, as far as they are concerned, nothing to discuss or negotiate. High Conflict Personalities will seek representatives who specialise in blame style litigation. People with personality disorders have enduring patterns of behaviour. It takes strong consequences to change them. Well-intentioned lectures and routine negative feedback about their dysfunctional actions will have no effect on their behaviour. Consequences need to be logical and directly connected to solving the problem. If the problem is chronically abusive behaviour, part of the consequence should be a requirement to change that behaviour as well as further consequences if the abusive behaviour happens again.
If the problem is related to misperceptions and false allegations then psychological treatment and legal /or financial consequences should arise. An assessment will need to be made, no matter how carefully the situation is managed, as to whether the enduring pattern of behaviour is inherent in the alienating parent’s personality making it impossible to alter.
If that is so, then the only logical response may be moving the child/children into the custody or care of the non-residential parent. This may have the unintended consequence initially of seeming to punish the child but research shows that this unintended consequence quickly rights itself. High Conflict personalities need strong and structured consequences. A program of change is necessary. Orders without consequences will have no value whatsoever.
One of the problems in our system is the lack of consequences arising out of a breach of orders or disruptable behaviour, particularly when the issue is children rather than finance. For a long time, the courts had no power to order the parties to engage in treatment programmes. Rather than punishment and blame, the focus should be on treatment programmes if there is substance abuse, Domestic Violence programs, parenting classes and individual counselling and on alternative dispute resolution all carefully managed by the court.
This is where Section 60 of the Family Relationships Act may come into its own because not only can the court order treatment programmes it can also order costs against a party where behaviour warrants it.
One of the problems in the Irish Family Law System is the apparent lack of consequences for breaches of orders, particularly in the area of children. However, you should note that Section 60 of the Family Relationships Act 2015 amends the Guardianship of Infants Act 1964 by the addition of Sections 18A 18B 18C and 18D. Section 18A allows for an Enforcement Order to be made where an access/custody order is in place and a parent is unreasonably denied such custody or access by another guardian or parent of the child. The granting of an Enforcement Order is subject to the party who is denied being “unreasonably” denied access or custody. The court must also have regard to the best interests of the child and whether or not given surrounding circumstances such an order is appropriate. If an Enforcement Order is made the court can extend the terms of the original court order to provide additional access to make up for time lost or as the “court may consider necessary in order to allow any adverse effects on the relationship between the applicant and the child caused by the denial referred to in Subsection (1) to be addressed”. The amendment also provides that the Respondent may be ordered to reimburse the Applicant for any necessary expense actually incurred by The applicant in attempting to exercise her or her rights. The newly inserted sections also make interesting insertions for the court to order the attendance for counselling either individual or family, parenting course and recommendations in relation to mediation. In layperson’s terms this means that if you are a person who has an order giving you access for example, and you have tried every reasonable means to secure that access as granted by the order. If, despite your reasonable efforts, you are thwarted and denied at every hands’ turn, you can now apply under the Guardianship of Infants Act 1964 as amended by S 60 of the Family Relationships Act 2015 to the District or Circuit Court seeking an Enforcement Order. The court can also order in a specific way how the time is to be made up to you that you have lost and further award you the costs or expenses of having to make such an application. Of course, the court is not going to just grant you an Enforcement Order. In each case, the Court has to be satisfied that the denial of access was unreasonable and that it is in the best interests of the child to make the Enforcement Order with the extra provisions which might be sought as outlined above. The beauty of this Section is that it allows an applicant to apply for enforcement rather than just breach and it allows for this application to be made in The district as well as other courts. While the legislation does not mention the word ‘sanctions’ it provides for the court to at least consider an application for costs and furthermore, provides a provision to redress the balance and allow for extra time to make up or as the court orders. It is a welcome advance on the previous situation.
Anne O’Neill – Principal of Anne O’Neill Solicitors