by Admin | Family Law
On 11 December 2024, the Family Justice Council published its new ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’. This 30-page document offers new and up to date guidance on how practitioners and the Family Court approach allegations of alienating behaviours (previously ‘parental alienation’). It begins with a Foreword from the President noting the polarising nature (and amount of Court time used) when allegations of alienating behaviour arise in private law children proceedings. He notes in particular the need for a more consistent approach to the issue in the Family Court.
The Guidance reflects recent developments in the case-law, and in particular the approach to the use of experts in cases of alleged parental alienation in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). In that case, the President addresses this issue at [103]:
“Before leaving this part of the appeal, one particular paragraph in the ACP skeleton argument deserves to be widely understood and, I would strongly urge, accepted:
‘Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.’
It is not the purpose of this judgment to go further into the topic of alienation. Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
This point is reiterated again in Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150.
The Guidance contains five ‘Guidance Notes’, dealing with Case Management, the Voice of the Child, Welfare Decisions where Findings of Alienating Behaviours have been made, Understanding Reluctance, Resistance, Refusal and Psychological Manipulation and the Use of Experts.
- Attachment, affinity and alignment (‘AAA’) – reasons why children may favour one parent over another, or reject a parent, which are typical emotional responses to parenting experiences and not the result of psychological manipulation by a parent.
- Appropriate justified rejection (‘AJR’) – situation where a child’s rejection of a parent is an understandable response to that parent’s behaviour towards the child and/or the other parent.
- Alienating Behaviours (‘AB’) – psychologically manipulative behaviours, intended or otherwise, by a parent towards a child which have resulted in the child’s reluctance, resistance or refusal to spend time with the other parent. [This term is capitalised throughout the guidance to refer to this definition]
- Protective behaviours (‘PB’) – behaviours by a parent towards a child in order to protect the child from exposure to abuse by the other parent, or from suffering harm (or greater harm) as a consequence of the other parent’s abuse.
- Reluctance, resistance or refusal (‘RRR’) – behaviours by a child concerning their relationship with, or spending time with, a parent, which may have a variety of potential causes.
The inclusion of this glossary of terms, most of which are not commonly used, sets the tone for the remainder of the document. It underlines one of the key points of this Guidance, namely that there can be many reasons for a child being reluctant to spend time with a parent and parental alienation should not be the ‘go-to’ explanation.
The FJC express concern about the use of the term ‘Alienating Behaviours’ because its connection to the discredited ‘parental alienation syndrome’ may give unjustified legitimacy to the harmful ‘pseudo-science’ associated with those types of allegations. However, at the same time, the Guidance is intended to assist with the Court’s response to allegations of alienating behaviours, and so that term is used where necessary.
The main themes arising from the Guidance are as follows:
Case Management
There is a helpful flow-chart on page 8, mapping out the litigation journey where alienating behaviours are alleged.
There are three elements that a Court must find before concluding that alienating behaviours have occurred:
- 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.
Research evidence suggests that Alienating Behaviours which actually impacts on the child’s relationship with the other parent are relatively rare. A child being reluctant or refusing to see a parent cannot by itself lead to a conclusion of alienating behaviours without the other two elements also being present.
The FJC noted concerns that allegations of alienating behaviours could be used as a tactic to respond to allegations of domestic abuse and to side-line those allegations. These concerns underscore the need to be specific in the allegations being made.
Alienating behaviours remain relatively rare. Therefore, 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.
The Court needs to bear in mind that there are many reasons why a child may withdraw from a relationship with a parent. This may be due to their own experiences with that parent or as a way to seek an alliance with and to elicit care from the other parent.
There is guidance on triaging a case when allegations of alienating behaviours are made in the initial application to the Court. Where it appears that all three elements of Alienating Behaviours may be present, the case must be transferred to a Judge.
There is then detailed Guidance for the Courts when determining whether the three elements of Alienating Behaviours are evidenced.
In some instances, the court may direct Cafcass / Cafcass Cymru or a social worker to meet with the child/children to determine the child’s perspective. In cases where the child’s view is unclear or unknown and where there are no allegations or evidence of behaviour by either party that might justify the child’s unwillingness to see or stay with a parent, consider directing a Section 7 report with a specific direction for an enquiry as to those issues (para. 40).
This comes with the caveat that CAFCASS are not arbiters of fact. It remains a judicial function to determine whether particular behaviours have occurred and their context.
The court should be cautious about ordering a stand-alone ‘wishes and feelings report’ as the court may be better able to assess the child’s perspective with a contextual report that carefully examines the child’s position (para 43).
The Court will also need to consider whether to list a fact-finding, in the same way it would when other forms of abuse are alleged. If the facts underpinning a child’s reluctance, resistance or refusal to spend time with a parent are in issue, or where the child is alleged to have been exposed to abuse directly or indirectly, the court will need to consider whether a fact-finding hearing is relevant, proportionate and necessary for determination of the welfare issues.
The factual matrix surrounding a case of alleged alienation is one for the court alone. In the same way that the court must gather evidence and list a fact-finding hearing where other forms of abuse are alleged, the court must gather the evidence to make findings in relation to alleged Alienating Behaviour. Failure to grasp this nettle risks appeals, delays and unnecessary costs. Effective case management is therefore key.
However, a fact-finding hearing will only be necessary where the issues to be determined go to the issues to ultimately be decided in the case.
When directing a fact-finding, the following directions may need to be considered (para. 50):
- Joinder of the child and whether direction setting should be postponed pending joinder.
- Narrative statements.
- Independent evidence – consider what evidence the trial court will need by way of disclosure, for instance; medical records, social work records, school records, telephone records.
- Schedules – where appropriate, mindful of the guidance in Re H-N. If a course of conduct is alleged, then critical examination of the period and the events is likely to be relevant to disclosure.
- A pre-trial review to consider the evidence.
- Any interim orders necessary – should any orders be made in relation to the child’s relationship with the parent with whom the child is reluctant, resistant or refusing to spend time? Are any protective orders necessary to manage risk as a consequence of domestic abuse allegations?
- Participation directions.
There is no equivalence between domestic abuse and Alienating Behaviours. The court’s deliberations should therefore begin with domestic abuse and review the Alienating Behaviours allegations through that prism.
The Courts are reminded to avoid ‘default findings’. A child being reluctant to spend time with a parent is not evidence of Alienating Behaviours simply because no other explanation can be found. All potential explanations for the child’s reluctance/refusal need to be considered.
Where a parent does not successfully prove allegations of domestic abuse, the court should not automatically move to a finding that alienating behaviours must be present.
If findings of domestic abuse and/or alienating behaviour are made, the court will need to consider whether further evidence is required before moving to the welfare considerations. Further expert evidence should only be ordered if it is necessary and proportionate.
Guidance Note on the Voice of the Child
The importance of a child’s wishes and feelings when decisions are being made about them is well-established.
Allegations of Alienating Behaviours can impact on how the wishes and feelings a child expresses are viewed. Children in this context can experience professionals as dismissive of their reported experiences and views. This can undermine efforts to promote their wellbeing and their trust in professionals, particularly if they experience repeated questioning as disbelieving of their account, an attempt to alter their expressed wishes or to prove that these are not their ‘true’ wishes by catching them out in some way (para. 70).
Unless there is clear evidence of psychological manipulation having significantly impacted on a child’s ability to voice their own wishes, care needs to be taken not to dismiss the child’s voice.
It is also important to recognise that a child may be unhappy about the outcome of a Court decision and may need thoughtful support to come to terms with it.
Guidance Note on Welfare Decisions where Findings of Alienating Behaviour Have Been Made
A finding that a parent has acted to alienate a child from the other parent is usually only one part of the factual matrix and should not be regarded as an automatic trigger to change a child’s placement. The welfare ramifications for each child of such a change need to be considered in depth.
The fact that a child’s relationship with one parent has been disrupted by the other parent is one factor to be balanced alongside all of the other welfare considerations.
After making findings of alienating behaviours, a Court will need to consider a number of practical steps, including
- Statements
- Whether the child should be separately represented if they are not already;
- Interim arrangements
- The need for expert assessment
- The child’s timetable
- The parent’s openness to reparative work.
The court should avoid making orders for the transfer of the care of children as a sanction for a parent’s refusal to help restore the disrupted relationship. The court should similarly take a holistic view to a child’s welfare when considering a change of residence as a response to failure to comply with a ‘spends time with’ order.
The WHO position is that there are no evidence-based interventions specifically tailored for alienating behaviours. Any interventions must therefore be based on holistic welfare considerations and must be tailored to the family in question.
The Welfare Checklist will need to be applied to the specific circumstances of the child(ren) concerned. Pages 24-25 of the Guidance provide a non-exhaustive list of factors that may need to be considered.
The court will no doubt wish to ensure that its decision is delivered as sensitively as possible. A short summary of the court’s decision in child friendly terms or a letter to the child, may help the child understand and in appropriate cases leave open the option for a relationship with the parent who has been found to have engaged in Alienating Behaviours at a later date (para. 100).
Guidance Note on Understanding Reluctance, Resistance and Refusal and Psychological Manipulation
Children may react negatively to parental separation and reluctance to see a parent need not be understood as a fixed position that will endure.
Rejection of a parent in itself is not evidence of psychological manipulation by the other parent. All three elements of alienating behaviours must be present.
Children who have experienced loss arising from parental separation may anticipate the loss of another relationship or threat to the security of that relationship and be motivated by their attachment needs to protect that relationship over their other competing needs.
Expert evidence may be required to understand a parent’s capacity to change and move on from alienating behaviours.
Guidance Note on the Use of Experts
Determining the appropriate type of psychologist expert should be in accordance with the Family Justice Council (FJC)/British Psychological Society (BPS) guidance for Psychologist expert witnesses.
These assessments should not be undertaken by academic psychologists or psychological researchers in the field of alienation.
The complexities of these cases are likely to call for a HCPC-registered expert with expertise in assessing both adults and children.
There is an inherent risk of confirmatory bias if instructions and assessments are framed solely in terms of allegations of Alienating Behaviours. It is important that the instructions for psychological evidence when there are findings of Alienating Behaviours are not narrowed in focus but retain the breadth and scope typical to holistic psychological assessments of parents and children in the family courts (para. 112).
The Guidance stresses the need to avoid conflicts of interest and that recommendations for interventions that can only be delivered by the expert or their associates are inconsistent with this.
Some of the new Guidance reflects recent developments in case-law. Overall, it seems that it may make it harder to prove allegations of alienating behaviour, or at the very least give lawyers and judges a framework within which to consider the allegations. The overarching theme is one of cautioning against jumping immediately to a conclusion of parental alienation where a child shows resistance to being with one of their parents.
Sally Gore
Fenners Chambers
January 2025
