Alienating Behaviours – Family Justice Council Guidance

Published in December 2024, following consultation in 2023 generating almost 100 responses – one of the largest consultations in the history of the FJC which is perhaps an indicator of how polarising the issue of parental alienation is.

Why is Guidance necessary? What is its purpose?

• To maintain focus on the impact on the child rather than on parental behaviours per se.
• To put to bed the concept of ‘parental alienation syndrome’ which is discredited, unevidenced and considered harmful pseudo-science.
• To ensure greater consistency of approach across the courts.
• To improve outcomes for children and families.
• To protect children and victims from litigation abuse.
• Evidence suggests that cases of Alienating Behaviour impacting on the child’s relationship with the other parent are relatively rare; so, despite an increasing number of allegations being made, findings will also be relatively rare.
• Allegations of Alienating Behaviour are often raised in response to domestic abuse. There are concerns that allegations of Alienating Behaviour are used as a form of post-separation control/abuse, and as a litigation tactic to silence survivors of domestic abuse (including children).
• Allegations of domestic abuse feature in 50-60% of private law cases.
• Given their respective prevalence, and the relative harm to children and adult survivors (and noting that Domestic Abuse is a crime in its own right), allegations of domestic abuse are in a different category to Alienating Behaviour – the two sets of allegations cannot be equated.
• That said, the harm caused by Alienating Behaviour can be significant and enduring, akin to other forms of emotional/psychological child abuse. It can result in severed relationships, and growing up with a false narrative can have a harmful impact on a child’s identity, self-worth and sense of safety in the world.

How to navigate the Guidance

• Glossary of Terms
• Litigation journey overview by reference to a flow-chart.
• Guidance notes:
• Case management
• Voice of the child
• Welfare
• Understanding Reluctance, Resistance, Refusal and Psychological Manipulation
• Use of experts

Glossary of terms

• 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.
• 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.

Case management

• Alleged AB to be case managed robustly and with the 3 Necessary Ingredients in mind.
• The child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer (‘RRR’); and
• The ‘RRR’ is not a consequence of a parent’s actions towards the child (‘AJR’) and nor is it caused by any other factor (‘AAA’); and
• Parental behaviour has directly or indirectly impacted on the child leading to ‘RRR’.
• If it appears at any stage in the proceedings that all 3 of the Necessary Ingredients are present, the case must be transferred (where previously allocated to the Magistrates’ Court) to a Judge.
• Is RRR evidenced? If the child is regularly spending time with the parent, RRR is unlikely to be made out.
• Consider a section 7 report if the child is RRR and there is no evidence to justify it, to specifically consider the child’s perspective if their views are unknown/unclear.
• Is RRR consequent on the actions of the parent raising allegations of AB? Allegation of AB will fail if parent has been abusive to them or the other parent.
• Has one parent engaged in psychological manipulation that has directly or indirectly impacted on the child, leading to RRR? Court needs to carefully examine what evidence of manipulation exists.
• Is a Finding of Fact Hearing relevant, proportionate and necessary?
• Factual matrix is for the Court – NOT for experts.
• Court should carefully examine what, why and when the allegations of AB were first reported to be an issue, being mindful that such allegations are sometimes raised as a response to allegations of domestic abuse.
• Court should consider, inter alia, joinder of the child, participation directions.
• Where there are cross-allegations of domestic abuse and AB, court should guard against attaching equivalence to these different types of allegations.
• View allegations of AB through the prism of domestic abuse.

How to prove Alienating Behaviour

• Burden of proof rests with he who asserts.
• Not enough to prove RRR – court must carefully examine all potential causal factors for RRR. It will not be capable of proof if there is AJR and/or AAA. For example, children may be expected to experience a wide range of emotions and react with initial anger/resentment and direct that towards the parent they perceive to be to blame.
• Take care not to assume that the style of language used by a child, or apparent inflexibility in response to repeated questioning, in isolation, confirms AB or ‘coaching’. Cultural, developmental or neurodevelopmental factors may influence the style and form of language a child uses about their experiences and wishes.
• Specificity of acts/omissions is required, for example: Parent manipulating child to make false allegations, parent rewarding rejection of or punishing loyalty towards the other parent, sharing of inappropriate information about the adult relationship, denigrating the other parent in front of the child, portraying the other parent as a source of harm.

Voice of the child

• Reiterating the importance of a child’s participation in decision-making about them and consideration of their wishes and feelings.
• Children can see repeated questioning as professionals disbelieving and dismissive – impact on relationship of trust and undermining of efforts to promote well-being.
• Do not dismiss the voice of the child unless there is compelling evidence to show that psychological manipulation has impacted on their capacity to freely express their wishes.
• Sensitive and thoughtful approach to be taken in supporting the child to understand the court’s rationale as they may not agree with the outcome.
• Child friendly judgment.

Next steps after findings of Alienating Behaviour are made

• Consider what further evidence is needed to conduct a proper welfare evaluation.
• Only if such evidence is both necessary and proportionate to the issue under consideration (and NOT at the Finding of Fact stage) should the court direct the instruction of an expert. The guidance note on experts reminds court and parties to have particular regard to Re C (Parental Alienation) [2023] EWHC 345[1] and the Revised Guidance on Psychologists as Expert Witnesses[2]. A whole family psychological assessment may be directed; care should be taken to appoint an expert with relevant qualifications, registration and required expertise.
• Finding of AB and/or non-compliance with court orders are NOT an automatic trigger for a change in a child’s placement either at an interim or final stage. There needs to be a holistic welfare evaluation by reference to the welfare checklist.
• Where removal from the current parent with care is contemplated, the Guardian may invite the Court to make a section 37 direction. CAFCASS CANNOT manage the mechanics of a change of placement. The Local Authority may need to provide a bridging placement.
• Welfare remains paramount, applying the welfare checklist. The detail in the Guidance is essential reading. A key takeaway is this - even if on some dimension another care-giving environment may be better than the child’s current one, decision-making should assign considerable weight to the value of continuity of “good-enough” care. The court must remain mindful that the trauma of removal and the manner of it must be weighed in the balance when considering any fundamental change in the child’s living arrangements.

KATE AKERMAN

[1] https://www.judiciary.uk/wp-content/uploads/2023/02/Re-C-Parental-Alienation-judgment-220323.pdf

[2] https://www.bps.org.uk/guideline/psychologists-expert-witnesses-family-courts-england-wales