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I am based in an EU country but answers regarding other jurisdictions are welcome.

The country I am based in introduced a law against domestic abuse about 20 years ago. I would assume that it was copied from another EU country.

The law specifies that domestic violence could be of "psychological nature" but, understandably, does not give an exhaustive definition of what constitutes "psychological abuse".

I am told that in my jurisdiction the courts generally don't view parental alienation* and alienating behaviour (even if this behaviour is obvious) as instances of psychological abuse against the child or the alienated parent. Which is puzzling as most psychologists would agree that alienating a child from a parent is a form of psychological abuse and may even have long-lasting impact on the victims (the child, the affected parent and, possibly, other members of the family).

A family lawyer told me that he, actually, had informal conversations with judges at a social event and was told that the reasons for this court practice is that "this is not the intention of the law". I suspect that by this they also refer to the way similar laws are used in other countries.

So I am looking for cases in other jurisdictions (not necessarily within the EU) in which the alienating behaviour was acknowledged as a form of domestic abuse. Can you point to such court cases (or, perhaps, even laws)?

EDIT:

So far, there seems to be a dearth of court cases establishing that alienating a parent constitutes domestic abuse. I find this puzzling. Why is this the case? Is it not abuse? Or is it not domestic? There seems to be some reluctance to bring these two terms in conjunction with parental alienation.

* Parental alienation, at its its core, is the process by which an "embittered parent might try to 'poison the mind' of their child towards the other parent." See generally Nicholas Bala, Rachel Birnbaum & Jessica Farshait, "Children Resisting Contact & Parental Alienation: Strategies for Lawyers in High Conflict Parenting Cases" (2024), which explains the core concept and also the debate about its nuanced nature.

Nick
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This document is the current guideline on parental alienation. It not only highlights the problems with the term itself, as the term tries to shift the burden from interest of the child to something different, but also how the courts shall handle it.

  1. There remains considerable tension around the concept of ‘parental alienation’ and the associated term ‘alienating behaviours’. These highly emotive tensions serve to polarise opinion in a way that is often counterproductive to the best interests of children, and which shifts the focus away from the voice of the child. [...]

  2. A child’s reluctance, resistance or refusal to spend time with a parent is often alleged to be a result of ‘parental alienation’. Despite the lack of research evidence, and international condemnation, reference is still made to the discredited concept of ‘parental alienation syndrome’. 2 For the avoidance of doubt, the Family Justice Council (FJC) recognises that ‘parental alienation syndrome’ has no evidential basis and is considered a harmful pseudo-science. Concepts of ‘parental alienation syndrome’ and ‘parental alienation’ are increasingly exploited within family litigation.3

Helpfully, the same document also gives us what actually is alienating behavior for a court in the jurisdiction. That means, all of the following need to be proven in court:

  1. A court would therefore need to be satisfied that three elements are established before it could conclude that Alienating Behaviours had occurred:

    1. the child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer; and
    2. the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection by the child (AJR – see Glossary above), or is not caused by any other factor such as the child’s alignment, affinity or attachment (AAA – see Glossary above); and
    3. the other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent

  2. Alienating Behaviours range in intensity and their impact on children. They can be observed in both families where parents remain together and in those where parents separate.

  3. Either or both parent(s) could engage in psychological manipulation which may or may not manifest in RRR on the part of a child.

Often, the claim is brought by a parent who actively engaged in behavior noted in 10.2, and then the test has to fail. Point is, the child's interest are first and trump any rights or interests of parents. If something can not, under any circumstances, be in the interest of the child, the court is not

  1. Concerns have been raised that allegations of Alienating Behaviours are used as a form of post-separation control/abuse, and as a litigation tactic to silence survivors of domestic abuse (both parents and children) and side-line their allegations and experiences of abuse and harm. 7 These concerns underscore the need for specificity in the allegations being made.

  2. Allegations of domestic abuse feature in at least 50-60% of private law children cases. 8 The relative relevance and prevalence of domestic abuse places it in an entirely different category to allegations of ‘parental alienation’. Domestic abuse is a crime impacting both adults and children who are victims in their own right.9

  3. In light of their respective prevalence, and the relative harm to children and adult survivors, allegations of domestic abuse and ‘parental alienation’ cannot be equated. The risk, relevance and weight attached to ‘parental alienation’ and domestic abuse should not automatically be considered equal.

  4. Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent

These paragraphs go to the heart of the question: The court guideline observes that Alienating Behavior can stem from abuse of either side, and a finding of abuse that results in rejection of the parent shall prevent a finding of Alienating Behavior. This also leads to an extremely high bar for the party alleging Alienating Behavior:

  1. Whilst psychological manipulation of a child can be subtle and insidious, a parent alleging Alienating Behaviours must discharge the burden of establishing both that such harmful behaviour has occurred, and that this behaviour has led to a child’s unjustified reluctance, resistance or refusal to spend time with that parent.

So the party claiming the other party engages in Alienating Behavior must prove that the act of influencing the child occurred and that the child showed unjustified refusal of the parent. The latter point in turn means that the party claiming has to disprove any abuse by them: As all the factors of 10 need to be proven, so 10.2 demands proof that no abuse happened and is the foundation of rejection.

Common Nexus of Alienating Behavior and Abuse

The determination of Alienating Behavior is heavily tinted by having to look for abuse, and it can be abuse.

  1. There is no equivalence between domestic abuse and Alienating Behaviours. Domestic abuse is a criminal offence and both a parent/carer and a child may be a victim. Where a parent is found to have engaged in Alienating Behaviours a child will have suffered emotional harm.

  2. The court’s deliberations should begin with domestic abuse and review the Alienating Behaviours allegations through that prism.

Trish
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The presence of family violence is one factor that must be considered when assessing the best interests of the child for the purpose of parenting or contact orders. See e.g. Canada's Divorce Act, s. 16(3)(j); or Ontario's Children's Law Reform Act, s. 24(3)(j).

A separate expressly listed factor is "each spouse’s [or parent's] willingness to support the development and maintenance of the child’s relationship with the other spouse [or parent]."

So, there may be little practical effect in recognizing parental alienation as constituting family violence. If established, it will be accounted for in considering the best interests of the child even if it is not considered family violence.

However, at least one instance of parental alienation has been found to constitute family violence. See Y.H.P. v. J.N., 2023 ONSC 5766, para. 59:

Considering my finding that the mother has engaged in a practice of parental alienation against the father, I find that her conduct amounts to family violence and seriously impacts her ability to care for and meet the needs of [the child].

Jen
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