Introduction.
The issue of parental alienation remains one of the most disputed and prevalent topics within the family courts. There remains a delicate balance between protecting victims of domestic abuse and seeking to protect children from the impact of Alienating Behaviours. Perpetrators of domestic abuse will often exploit the court system by raising issues of alienation seeking to use this as a litigation tactic to distress or discourage a victim. Simultaneously there remain genuine loving parents seeking to have a relationship with their child or children who have been subjected to alienating behaviours. It is accepted and reaffirmed within the guidance that, where found, the harm of Alienating Behaviours to a child can be significant and enduring, akin to other forms of emotional/psychological child abuse.
In December 2024, the Family Justice Council (hereafter “FJC”) published their “Guidance on responding to allegations of alienating behaviours”. Such reading is essential to practitioners dealing with cases in which alienating behaviours may be a live issue and can be found here https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf. The guidance focuses on informing the court and professionals in the wider family justice system as to how allegations of Alienating Behaviours should be considered and responded to. This article will give a summary of some of the key issues within this guidance.
Terminology
The guidance reiterates that the Family Justice Council recognises that the term ‘parental alienation syndrome’ has no evidential basis. This description is considered by the Family Justice Council to be a harmful pseudo-science that can be exploited within family litigation. There has been a recent shift away from using the term ‘parental alienation’ and the guidance provides some new terminology which seeks to shift the focus towards the impact on the child, rather than the behaviour of the parents. The key new terms are as follows:
- AAA – Attachment, affinity and alignment
- AJR – Appropriate justified rejection
- AB – Alienating Behaviours
- PB – Protective behaviours
- RRR- Reluctance, resistance or refusal
Reaffirming three key elements
The guidance once again reaffirms the three necessary elements that need to be established before it could conclude that alienating behaviours had occurred as in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam).
The FJC have provided detail as to what is needed to establish Alienating Behaviours on a factual basis.
- The child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer AND
- 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 or is not caused by any other factor such as the child’s alignment, affinity or attachment AND
- 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.
Court procedure
This may be the most crucial part for practitioners as once again early identification of the issue is reiterated to be of upmost importance. The guidance contains a flowchart mapping the litigation journey. It is made clear that it is incumbent on parties to ensure that the court understands their case. At the earliest opportunity the person making allegations should review whether they have evidence of all 3 elements and if possible, identify this to the court. If it seems that all 3 elements are present on a solid evidential basis then the matter must be re-allocated to a Judge if it is not already before one. If the matter stays with the Magistrates the court must ensure that when deliberating on welfare, they do not re-introduce unsubstantiated allegations of alienating behaviours.
The factual matrix surrounding a case of alleged alienation is one for the court alone. The issue of whether a fact-finding hearing is relevant, proportionate and necessary will be carefully considered. The court should examine what, why and when allegations of alienating behaviours were made. In some cases, it may be considered appropriate for the matters of domestic abuse and alienating behaviours to be heard simultaneously but this should be carefully scrutinised. It may be that the court determines the issues of domestic abuse at a preliminary fact-finding hearing. The court’s deliberations should begin with domestic abuse and review the Alienating Behaviours allegations through that prism.
Domestic abuse
The FJC seek to address the need to offer greater protection to the victims of domestic abuse in recognising the long-term harm that may be caused by such behaviour.
It is acknowledged that there are concerns that allegations of alienating behaviours are being used as a ‘form of post-separation control/abuse, and as a litigation tactic to silence survivors of domestic abuse (both parents and children)’. The guidelines make clear that there is no equivalence between domestic abuse and alienating behaviours. Domestic abuse is a crime with recognised harm and, as such, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s AJR, or in PB or a traumatic response on the part of the victim parent.
Since the guidance has been released, Cafcass have published their Domestic Abuse Practice Policy found here
https://www.cafcass.gov.uk/sites/default/files/2024-10/Domestic%20Abuse%20Practice%20Policy.pdf. It is reiterated within this that Cafcass officers should “ When assessing the reasons why a child does not want to see a parent following separation, especially when a parent says they are experiencing alienating behaviours, practitioners must first consider whether the cause of this refusal is because the child is a victim of domestic abuse and harmful parenting or if there are other reasons for the child not wanting to spend time with that parent”.
Welfare
The welfare of the child remains the paramount consideration for the court. Regardless of if findings of alienating behaviour have been found, this does not necessitate an automatic change of residence. As with all family law cases careful consideration should be taken of the welfare checklist principles pursuant to Section 1(3) of the Children Act 1989 in light of any findings the court has made.
Care and caution should be taken not to dismiss the voice of the child. There must be compelling evidence to demonstrate that psychological manipulation has impacted on their capacity to express their wishes and feelings.
It is important to reiterate that the court must not conflate non-compliance with a court order with welfare. Non-compliance is not, of itself, a reason for a transfer of care albeit non-compliance and capacity to take up and act on professional support and guidance may be relevant factors in the welfare consideration. Court orders are not meant to punish or admonish a parent, as the focus throughout proceedings must be on the child’s welfare.
Conclusion
This guidance is detailed, and this article does not cover every topic discussed. It is clear that the guidance does not seek to suggest that every parent raising issues regarding parental alienation do so simply as a litigation tactic. In fact, the harmful impact such Alienating Behaviours can have on the children is reiterated. It is emphasised that Alienating Behaviours range in intensity and their impact on children, but these harms can be far reaching and can affect a child’s emotional, social and psychological development.
Another salient point of the guidance accentuates the fact that children’s behaviours may be wide ranging as a reaction to a breakdown of a relationship. There is a clear focus of looking at the family dynamic from the child’s perspective which may give an understanding for why they are demonstrating such behaviour. Helpfully the guidance explains that “children can and do come to their own conclusions about what has happened in their family and how this affects their attitude to living with, or spending time with, one of their parents. They may wish to make choices or exert an influence over how they live their lives.”
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