Parental alienation in Scottish child law

Parental alienation is a term that is heard more and more often in the world of family law. However, the term should be used with caution, for reasons explained below.

What is parental alienation?

The term “parental alienation” entered our vocabulary over 30 years ago and refers to the unjustified rejection of an “alienated” parent by a child, whose alliance with the “alienating” parent is characterised by extreme negativity towards the other parent, as the result of a conscious action of one parent to exclude the other parent from the love and respect of their child.

A controversial issue

The diagnosis of “parental alienation syndrome” (“PAS”) is controversial, as it suggests that a child develops a psychological disorder as a result of the brainwashing by the alienating parent. There has been much debate among psychologists as to whether or not parental alienation can actually be termed a “syndrome”.

Parental alienation in the legal framework

It is not for family law solicitors, or the courts, to ascertain whether or not such a syndrome exists. However, in some jurisdictions “parental alienation” is becoming accepted as a concept. For example, in England & Wales the CAFCASS (Children and Family Court Advisory & Support Service) recognises the term. The CAFCASS Child Impact Assessment Framework sets out how children may experience parental separation and how this can be understood and acted on in CAFCASS. The framework brings together existing guidance and tools into four guides which CAFCASS private law practitioners can use to assess different case factors, including:

• domestic abuse where children have been harmed directly or indirectly, for example from the impact of coercive control;
• conflict which is harmful to the child, such as a longrunning court case or mutual hostility between parents which can become intolerable for the child;
• child refusal or resistance to spending time with one of their parents or carers, which may be due to a range of justified reasons or could be an indicator of the harm caused when a child has been alienated by one parent against the other for no good reason;
• other forms of harmful parenting due to factors like substance misuse or parental mental health difficulties, where these are assessed as harmful to the child.

There is no organisation in Scotland equivalent to CAFCASS, and there is no formal recognition in Scots law of parental alienation as a concept. Some, such as campaign group Shared Parenting Scotland, have pressed the Scottish Government for parental alienation to be included in a checklist of matters a judge should take into account when assessing the best interests of a child where arrangements are not agreed between the parents. This proposition was rejected by the Government on the following basis: 

“The Scottish Government decided not to include preventing a child being turned against a parent in the list of factors the court has to consider when deciding whether to make an order under s 11 of the [Children (Scotland) Act 1995] as:

• a statutory requirement to consider this in every case is not appropriate; and
• the Children (Scotland) Act 2020 does require the court to consider the effect of its decision on the involvement of the parents in bringing the child up.”

Time to stop shying away from the term?

The existence of “parental alienation syndrome” is disputed, and has been expressly rejected by the courts in England. However, the term or concept “parental alienation” is generally being used more widely, and often, unhelpfully, indiscriminately. 

When a parent alleges that alienation is occurring, it is important to clarify exactly what the parent means by this. There are two primary matters to be considered: “(1) justified reluctance or opposition from the resident parent and/or the child due to the behaviour of the rejected parent, or (2) disproportionate and/or unjustified reluctance or opposition rooted in the unreasonable opposition of the resident parent” (Asen and Morris, High-Conflict Parenting Post-Separation (2020), p 40).

If the term is to be used more readily in Scottish child law disputes, it requires to be utilised with caution and only by those who understand its meaning and have received training in relation to it. It is important that solicitors and the courts have a clear understanding of all of the different facts which 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.