New guidance on how family courts should approach allegations of 'parental alienation' or 'alienating behaviour' has recently been published by the Family Justice Council.
The aim of this guidance is to assist the court, family law practitioners and other professionals in dealing with these allegations. It emphasises that the focus should remain on the impact of these behaviours on children and their welfare, rather than parental behaviour.
In this article, we provide a definition of alienating behaviours, what elements need to be present to show that alienating behaviour has taken place, and how allegations of alienating behaviours are dealt with private children law cases.
The report says the term ‘parental alienation’ is polarising, emotive and complex and has become an increasingly common part of court proceedings regarding children. We share the view that allegations of parental alienation are becoming more prevalent in our private law children cases and the guidance is therefore welcomed.
The guidance also describes the concept of parental alienation syndrome as having 'no evidential basis' and as a 'harmful pseudoscience' which is 'increasingly exploited' within family litigation.
The report sets out definitions of appropriate terminology in this area, which include:
The report emphasises that while there are genuine cases of alienating behaviours impacting a child’s relationship with their parent, they remain relatively rare despite an increased number of allegations. Additionally, there are a number of types of behaviour that will fall within the one of the other classes of behaviour noted above, which whilst deeply distressing for the other parent, will not necessarily be the result of one parent’s manipulation.
In order to show that alienating behaviour has taken place, the court needs to be satisfied of three elements:
This is a relatively high threshold to meet. A child’s reluctance, resistance and refusal to see or engage with a parent cannot be evidence in and of itself of alienating behaviours.
A child’s reluctance, resistance and refusal may be down to a variety of factors and will depend on the particular context of their family relationships. Ultimately there may not be a clear explanation for any such behaviour.
The report sets out that domestic abuse and alienating behaviours cannot be equated, given the relative prevalence of domestic abuse allegations in children law proceedings. Domestic abuse is a criminal offence. Alienating behaviour is not a separate criminal offence. However, the report recognises that both children and adults alike can be the victims of domestic abuse, and children may engage in reluctance, resistance and refusal behaviour where this has taken place.
In these situations, the report recognises that a child may be having an appropriate justified rejection towards the perpetrating parent and be subject to protective behaviours from the other parent. In this context alone, a court would be unlikely to regard the actions of the protective parent as alienating behaviours.
The report further states that it should not be assumed that otherwise unexplained reluctance, resistance and refusal by a child towards a parent is the result of alienating behaviours. At the same time, it should not be assumed that reluctance, resistance and refusal is the result of alienating behaviours simply because a parent has made allegations of domestic abuse which the court has subsequently deemed to be false. The court must be satisfied that all three limbs of the above test are made out.
The report firmly places the responsibility with the court for determining whether or not domestic abuse and/or alienating behaviours have taken place.
The report states that this is where it would be 'inappropriate for experts' to be asked to make determinations. While it recognises that they can still have a role to play in the proceedings as a whole, parties should tread with caution before involving experts in this specific area. The report is particularly critical of the term 'parental alienation syndrome', and sets out a standard to deal with alienating behaviours as discreet events in a broader factual matrix rather than a clinical disorder.
These guidelines mean we have more clarity from the court as to how they will approach these issues and detail how such cases will be managed. A more consistent approach from the court should eventually help parties to deal with these allegations more efficiently.
Parties must be careful not to place undue weight on a finding of alienating behaviour having taken place, if it is able to be proven at all. Even if a finding of alienating behaviour is made, the report is clear that this should not result in an automatic change in residence from one parent to another.
Decisions regarding children must be made in the context of the entire welfare checklist and with a focus on the impact of any such behaviours on the child.
We regularly support parents engaged in private law children proceedings and cases involving parental alienation allegations. If you have experienced any of the above behaviours or have been accused of such, please feel free to contact one of our family team to discuss the impact of this guidance on your family circumstances or case.
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