Re A and B (Parental Alienation: No. 1, No. 2, No. 3 and No. 4), RE [2020] EHWC 3366

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Parental Alienation: Psychologist or Psychiatrist?…that is the question!

For those who attended our recent workshop in chambers, I aim to deliver as promised, a series of articles looking at the 4 judgments arising out of this case, to look at what we can learn and how we can grow as practitioners in the ever increasing, and difficult area of parental alienation.

When reading and taking together the four judgments in this case, there are multiple issues raised, including but not limited to; applications for disclosure, appointment of a rule 16.4 Guardian, wishes and feelings of the children, Article 8 rights versus the rights of the child, restrictive contact, lives with order to biological parent and step-parent, and costs. When considering the judgments, I found myself pausing and reflecting on my own practice, and how I manage cases of this nature when looking through the lens of parental alienation, and effective case management.

For me, and indeed all of us as professionals, case management is the road map through a case to the final hearing and every decision is or should be made with an eye on getting to a position where a final determination can be properly made.  The importance of case management is not lost on us as practitioners, it comes with great responsibility; a decision made at one hearing may significantly impact the case further down the line.

Parental alienation cases are among the most complex, and its case management is often far more nuanced. I have spent many a drive home contemplating this issue asking myself what do we need? But more importantly why do we need it?

It is with this in mind that perhaps unusually, I don’t propose in this article to look specifically at what happened in the course of this case, that will follow at a later date. Instead, I have chosen to focus on what for me was the most interesting aspect – choice of expert to assess the children.  I must confess, I found myself interested in this point, largely because in my two decades of practice in both public and private law Children Act proceedings, I have never experienced the court directing a psychiatric assessment of children. The immediate question I found myself asking is why a psychiatrist and not a psychologist…?

Before turning to that question, a reminder of what Parental Alienation is. Cafcass in my view quite aptly summarise it as follows:

“When a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Manipulation, we know can be done knowingly and deliberately, or as many of us have encountered, unwittingly; the latter sadly having the lesser prospect of establishing positive change, primarily as a result of the inability of the alienating parent to recognise, and or accept responsibility for their alienating behaviours.

Some examples of manipulating behaviour we see in our day to day practice are; speaking ill of the other parent in front of the child, belittling them or undermining them and or their significance in the child’s life, restricting or limiting contact, and leading a child to believe the other parent is somehow bad or does not love them.  In essence, manipulating the child to a false reality designed to meet the needs of the alienating parent. The net result of the alienating behaviour is the creation of an unjustified resistance to the alienated parent and the child suffering emotional harm.

When considering the impact of alienating behaviour on the children, we understand it causes ‘emotional harm’ but what does that actually mean?

The NSPCC:

“Emotional harm can affect a child’s emotional development, including feeling, expressing and controlling emotions.  Lacking confidence or causing anger problems.  Finding it difficult to make and maintain healthy relationships later in life.”

Emotional harm caused by alienation is variable, it depends on the nature and extent of the harmful behaviour and the response of the individual child.  Some examples of how the harm impacts children are; depression, anxiety, behavioural problems, low self-esteem, eating disorders, substance misuse, attachment disorder, anger, suicidal ideation and or attempted suicide. At the far end, a child may experience isolation or a denial of emotional responses from the alienating parent causing them to change their own behaviours to suit that of the alienating parent in an attempt to have their own needs met.

When faced with a case where alienating behaviours are present, and children are suffering emotional harm, the question of expert evidence inevitably arises. The tendency in most cases, in my experience is to instruct a psychologist, with little if any consideration toward the instruction of a psychiatrist. So, what is the difference between a psychologist and psychiatrist? And should we as practitioners be more open to the idea of considering the instruction of a psychiatrist rather than psychologist to undertake the assessment of the children?

When looking at the two disciplines, I have, in the simplest of terms identified the following:

  • Both Psychologists and Psychiatrists understand how the brain works, thoughts, feelings, and emotions, and both are able to provide therapeutic treatments. The main difference is that a psychiatrist is a medical doctor and can prescribe medication, a psychologist cannot.
  • Psychiatrists practice as doctors medically and have a clinical practice, they diagnose and treat mental, emotional, and behavioural disorders by using medication and psychotherapy. Psychiatrists understand the links between medical and physical problems given their medical background. Anyone who has attempted suicide or has suicidal ideation will ordinarily be seen by a psychiatrist.
  • Psychology has its origin in philosophy and has at its heart, the mind and human behaviours. A psychologist would more likely than not see those displaying behavioural problems, learning difficulties, depression, and anxiety. They would treat those with a condition that can be helped effectively with psychological treatments.

In our case  in point, the court instructed a Child Psychiatrist Dr Julet Butler in the first instance to assess both children who were aged 13 and 10 at the time of assessment.

Dr Butler reported the following:

“Parental conflict post separation is one of the most dangerous environments children have to survive.”

In respect of the children, she reported as follows:

Child A:

  • works very hard to please her mother by fully taking part in the conflict.
  • has a history of being overly involved in the parents’ separation from very early on which has had a significant impact on her emotional development.
  • is triangulated within the parental conflict. She is the one maintaining the conflict with the father which allows the mother to stand back and appear to be the reasonable adult who wants to end the conflict.
  • is at risk of developing depression and anxiety as an adolescent and adult. These experiences risk impacting on her capacity to form safe relationships.  She is at high risk of developing abusive relationships as an adult and of struggling to parent herself.

Child B:

  • has struggled to keep up with what his mother needs…..as a result, “I think has been experienced by his mother as less helpful at times.”
  • is presenting with evidence of depressive disorder.
  • “I think he is depressed. I think there is a risk he wishes he was dead.”

Both children:

  • present as highly anxious in their functioning as a result of being exposed to parental conflict most of their lives.
  • are presenting with evidence of Disordered attachment development, and increased risk of mental health problems.
  • have developed a complex attachment strategy in order to survive in this environment.
  • are presenting with a compulsive compliant compulsive caregiving attachment theory. Children who develop this attachment pattern do so in the face of persistently unavailable care.  It develops from children who manage unpredictable but repeated danger.

It was on receipt of Dr Butler’s report that the parties made a joint application to instruct Dr Janine Braier, well known Psychologist in the area of parental alienation, alongside her colleague, Psychotherapist Karen Woodall, to look at how to rectify the parental alienation and seek to ensure the children had a relationship with their father.  They prepared a report for the court setting out a programme of therapeutic work and support for the family.

Karen Woodall undertook the plan of work during the course of the proceedings and provided a number of addendum reports to the court prior to the final hearing.  The work took some 15 months and did not achieve its objective due to the mother thwarting just about every attempt made.  However, the therapeutic work continued with huge success for the children following a transfer of their care to their father.

What do we take away?

Looking closely at what is to be gained from the instruction of a psychologist or psychiatrist, clearly both are equipped to carry out such assessment, they both understand how the brain works, thoughts, feelings, and emotions, and both are able to provide therapeutic treatments. The add on from a psychiatrist is the ability to diagnose mental illness and or the risk of it developing and prescribe medication.

When I look at and consider the case in point, the psychiatrist diagnosed a disorder in each of the children and gave a clear view as to where the risks lie in the future for these children with regard to their mental health and any mental illness developing. We aren’t privy to the decision making of the court and the submissions that were made leading to the instruction of a Child Psychiatrist, but when considering the seriousness of alienation, the emotional harm caused, impact of such behaviour, and importantly the observations of the psychiatrist in this case, I can see the benefit of a psychiatrist undertaking the assessment and a psychologist qualified in psychotherapy, or Psychologist and Psychotherapist preparing a therapeutic plan of work to assist and benefit the family. It has the feel of a collaborative approach looking medically from a diagnostic perspective, and holistically in terms of the therapeutic needs.

Whenever we come to a case, we want the best outcome for children but of course we are bound by the overriding objective and what is necessary and proportionate There is clearly a cost implication with each expert that is instructed in a case, but I cannot help but be enthused by the approach taken in this case.  These cases are difficult and complex, given the nature and extent of emotional harm that occurs in all too many of these cases, it is important in my view  to understand any diagnosis, treatment and prognosis just as we would for example in a public law injury case.  I take the view that the approach in this case does just that – perhaps for the first time I see a parallel being drawn between the way in which emotional harm and other more serious forms of harm are dealt with from an expert perspective, something in my view that is long overdue.

The question as to whether such approach would be considered ‘necessary’ as opposed to ideal or preferable is likely I suspect to depend on the specific facts in each case and the view of the tribunal.  It is an approach worthy of proper consideration in my view.

On a practical note, there is absolutely no doubt that when it comes to seeking expert assessment in cases of this nature, or any case for that matter,  identifying the right expert and an expert that is equipped to do the job is of the utmost importance; a view held by the President of the Family Division, recently expressed within his address at the International Family Law Conference in Jersey last month.

The President said:

“One specific problem which is said to arise in cases of domestic abuse is the not infrequent counter assertion that the person making allegations of abuse is themselves causing harm to the child by ‘parental alienation’. This is a complex and sensitive issue, and in the short time available in this address I seek to make one and one point only about it. Where the issue of parental alienation is raised and it is suggested to the court that an expert should be instructed, the court must be careful only to authorise such instruction where the individual expert has relevant expertise.

This regard I draw attention to the fact that I am about to issue a General Memorandum5 on the topic of the instruction of experts. Within that I stress that an ‘expert must demonstrate to the court that he or she has the relevant knowledge and experience to give either opinion evidence, or factual evidence which is not based exclusively on personal observation or sensation’. I also emphasise that an expert must be independent and impartial and that ‘the court will refuse to authorise or admit the evidence of an expert whose methodology is not based on any established body of knowledge’. I conclude by saying:

‘The Family Court adopts a rigorous approach to the admission of expert evidence. As the references in this memorandum make plain, pseudo-science, which is not based on any established body of knowledge, will be inadmissible in the Family Court.’

Knowledge of the case and understanding the issues within it is vital to your consideration as to what if any expert evidence is needed and most importantly why. It is only at that point you can properly go on and identify who best fits the bill.

In my view it’s important to take the time to obtain CV’s, don’t be afraid to consider someone ‘new’. Invite solicitors to explore experience of proposed experts by providing an appropriate summary with the expert to see if they fit the bill, and don’t just rely on the CV’s produced by another party, make your own enquiries. It’s much like that old saying in life – ‘you get out what you put in’ doing the leg work is a must and may make all the difference to your client’s case.

 Written by Clare Porter-Phillips, Senior Consultant Barrister, Unit Chambers

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