The next time you tell someone who’s going through abuse to stop contact with the person who is harming them or ask them to report it – know that those things could now be part of a criminal offence.
The issues have arisen in the statutory guidance to the Domestic Abuse Act 2021, which is the document that tells agencies how to apply the new law. In an underhand move, the statutory guidance, the so-called ‘back door’ of the legislation, says parental alienation is potentially a criminal offence in England and Wales – despite the theory’s problematic, wide-scale misuse against abuse victims.
So how would the Domestic Abuse Act now deal with victims of abuse if they have children? Let us be clear. Domestic abuse is a catastrophic, intentional parenting failure. Children react to domestic abuse differently, but many will be fearful of the person who has harmed them or their family. This person is likely to be their other parent. This Act means that a child who wishes to limit contact with the parent who harmed them is expected to get their safe parent in trouble with the law because a child’s resistance to contact is viewed as alienation. How would that work out for child victims?
This scenario already plays out in the family court worldwide, in countries where it hasn’t yet been outlawed. In Italy and Spain, the theory is prohibited in children’s court cases. Victims of parental alienation theory misuse currently find themselves labelled abusers themselves, and the Domestic Abuse Act 2021 is now distorted to reflect that. Around 80% of abuse victims in court are accused of ‘alienation’ simply for expressing the need to limit a parent who has harmed. The vast majority of alienation claims are made against mothers reporting abuse. They often lose their children, a sentence in itself.
It’s concerning how this could play out in other places. When a child tells a teacher that they are being harmed, the school would be in the impossible position where they would have to persuade an unwilling child into the arms of their abuser, and be unable to say someone should change that. Why? Because attempting to limit a parent’s access, is listed as potentially illegal. This Act disastrously ranks abusers’ feelings above a child’s right to safety. The Act has been twisted to work against the very people it was created to protect. That they have done this to some of the most vulnerable people in our society, is truly amoral.
It is not uncommon to see cases where victims of rapists and paedophiles end up tortured in family court for years with claims of ‘alienation’. How can we protect children from the most dangerous in our society if we ensure their wishes and feelings are viewed as being bottom of the pile? “Even paedophiles and murderers get contact,” said one family court judge in a quote released by the #thecourtsaid campaign in 2019. The message from the government is that if you have children, it doesn’t matter what crime was committed against you, trying to stop or limit an abusive parents involvement is the greater crime. You will have to happily co-parent and never bring up a safeguarding concern, because it could ‘undermine’ their parenting. Is this an appropriate message for the government to communicate to families who are experiencing abuse?
Those who are forced to flee their homes, often with children, may end up in a refuge if they are fortunate enough to find a place. How would they keep the refuge address safe (along with many other vulnerable women) when forced into facilitating regular contact with the very person they had to flee? Think also about the terror for a child who is living the nightmare of having contact with someone who continues to abuse them. The Act recognises children as victims yet simultaneously tells them they cannot place limits on their perpetrator.
The sad fact is that abusive partners (of which there are many) often make abusive parents. Around 62% of domestic abusers harm their children directly, usually through child arrangements. According to the guidance, reporting ongoing concern, is also a potential crime.
Other items in the statutory guidance create dystopian parameters for victims. ‘Withholding affection’ is criminalised but crucially not contextualised. While it isn’t in dispute that abusive partners will often be horrible to be around, they often weaponise day-to-day affection as a tactic. However criminalising ‘withholding affection’ conversely also provides a scripted defence for someone accused of sexual assault. How many times has a sexually abusive partner said, ‘if you just gave me more sex’, things would be better – that they wouldn’t need to be ‘desperate’ and ‘pushy’ and ‘going too far’ all the time if you just put out more? In court, this will mean that ‘withholding affection’ is likely to evolve into a ‘frigid defence’ to sexual assault – because rejecting an abusive partner’s advances, and therefore ‘withholding affection’ could be considered equally damaging, even criminal.
Where is this going for victims? Family court has already amended PD12J, the legal instrument providing judges with a set of standards on managing an abuse case, to reflect the Domestic Abuse Act 2021. The establishment sends a clear message that our ability to say no to an abusive partner is eroded on every level.
Anyone who has ever been fearful of a partner or had one of those relationships where ending it early on felt like a narrow escape – imagine facing this reality had you not called time on it. Imagine being a parent whose child said they were dealing with abuse from their other parent, and you reported it. Imagine being effectively criminalised for acting protectively. Imagine having to make the toss-up between reporting a crime and risking arrest. In a sick twist, in the event of an arrest – guess who may take the children; the very person they reported. No one deserves to have their rights degraded in this way. No one should face punishment for protecting a child. Survivors in England and Wales need you to #chooserights for those who this will harm. Everyone has a responsibility to call on the government to remove parental alienation from the Domestic Abuse Act 2021.
The consultation closes on 14th September. Have your say and tell the government that you #chooserights for victims here
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