Parental alienation is a silent but common phenomenon in Malta that is often inadvertently made worse by the court itself for failing to address the matter in an effective and timely manner. Parental alienation needs to be recognised as a form of child abuse and a form of recognised psychiatric harm that should be made punishable within our criminal justice system with punitive consequences imposed for parents “convicted” of engaging in such conduct. When one parent methodically turns a child against the other, there occurs what I would describe as a “parentectomy”. In other words, the parent is cut out of that child’s life.

All too often, the alienated parent is powerless to ameliorate the situation. The spurned parent grieves over the loss of contact with his child which he experiences as being like death. In a sense, it is worse. The child lives, but the relationship is dead. There is a contagion or ripple effect to parental alienation. Grandparents and other relatives lose contact with the child. Neighbours and longtime friends of the rejected parent are also excluded. Anyone associated with the rejected parent may be treated as a toxic substance. In some of the most pernicious cases, while functioning as a mouthpiece for the other parent, the child may level false accusations that result in intervention by social service agencies or involvement of law enforcement officers. Parental alienation exists and must be recognised for the damage that it inflicts. Because the injury to the child is tantamount to child abuse, it is understandable that some people believe that an alienating parent should be charged with committing a crime.

In reality, what often happens when the residing parent maliciously turns the child against the other parent is that accusations are made merely to prevent or restrict contact, the process of the court proceedings are purposely delayed and false accusations are made towards the non-residing parent to delay things further. Needless to say, all of this negatively affects every aspect of a child’s life. More often than not, children are emotionally scarred and the parent with care gets away with no repercussions. I have closely witnessed many of the above factors during a family court case that was drawn out for over a year accompanied by unfounded domestic violence allegations in an attempt to obtain legal aid, an alcohol misuse allegation delaying court proceedings and costing hefty legal judicial costs and expenses to prove otherwise and many, many other delaying tactics presented by the mother to ensure that the father was met with hurdles and barriers in reaching an exclusive child custody order.

I am sometimes appalled at the lack of regard for non-resident parents, the majority of whom are fathers, in upholding their human right regarding their private and family life. Not only, they hardly find any effective remedial action when they end up as victims of cleverly falsified claims by the residing parent having full control and custody of the children. The best option is to prevent and deter any falsified claims as far as possible. Deterring the parent-with-care from delaying any court proceedings will ensure the court procedure is dealt with quickly and efficiently. Deterring lies and falsified claims makes the situation for children less hostile and making the bad-mouthing of the other parent tantamount to “parental alienation” prevents the emotional abuse children suffer while potentially inviting better and more efficient co-operation from the parent-with-care. Contact should not be intentionally severed and evidence of any such act should be made a criminal offence. Children do not have the power to fight for their rights and perhaps criminalizing the growing incidence of parental alienation could be one small step forward in safeguarding such rights.

Arguing against criminalizing parental alienation is the fact that it is often difficult to prove “beyond a reasonable doubt”. The parent making the claim may have to demonstrate that his or her own behaviour is not the cause of the alleged alienation. Such cases are rarely cut and dry and there is recourse. Judges in family courts and magistrates in juvenile courts are able to hear extensive testimony and weigh the evidence. Courts can address parental alienation by ordering independent psychological evaluations of the parents, a custody evaluation, a family assessment and, if deemed in the best interest of the child, courts can enact changes to the custodial arrangement while at the same time ordering the Commissioner of Police to investigate any possible criminal offence of “parental alienation” in its various forms.

The alienation process of one parent against another can legitimately be considered as a form of "emotional abuse" not dissimilar to such acts of criminality as sexual or physical abuse or neglect of a child. Such behaviour of alienating children is most likely to be carried out by a vengeful custodial parent against the non-custodial parent due to an acrimonious divorce or separation. It is not so different from an act of kidnapping a child to a foreign venue in order to prevent the child from having any enduring good contact with the non-resident parent. Over the years our legislators have deemed it right and proper to introduce in our criminal code such new offences as bestiality, hate speech, revenge porn, femicide and cyberbullying.

Parental alienation is a criminal offence in some countries such as Brazil and Mexico and in other countries, such as Italy, the offending parent may incur a penal fine, if such behaviour is persistently repeated. Will our legislators follow suit? The crime committed by an alienating parent must be recognised for what it is. It is the cruel brainwashing of a vulnerable child against a loving parent.

Dr Mark Said is an advocate