The Family Justice Council last week published ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’.
‘For the avoidance of doubt, the Family Justice Council (FJC) recognises that "parental alienation syndrome" has no evidential basis and is considered a harmful pseudo-science’.
There is a helpful foreword to the document from Sir Andrew McFarlane, president of the Family Division and chair of the Family Justice Council. The president says: 'The issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate'. He goes on to say: 'In my view this guidance is required to ensure greater consistency of approach across the courts and to improve outcomes for children and to protect children and victims from litigation abuse'.
At the beginning of his tenure the president made it clear that it was behaviour (and the impact on children) that should be focused on rather than labels. This view was further expressed in Re C (Parental Alienation; Instruction of an Expert) [2023] EWHC 345 Fam. The guidance is aligned with that approach.
The guidance is published against the landscape of a wider understanding of what domestic abuse is, the need to protect victims, including post-separation, and the impact on children of domestic abuse. The guidance cites the statistic that 'Allegations of domestic abuse feature in at least 50-60 % of private law children cases'.
This is an incredibly useful document and extends beyond what it says on the tin as it contains practical guidance for courts and practitioners not just on this topic, but on issues being grappled with in practice daily including: allegations of domestic abuse, correct judicial allocation, the need for fact-finding hearings, the use of experts and a reminder to conduct a holistic exercise using the welfare checklist.
In practice, and as a reflection of societal ‘norms’, it is usually the parent (often the mother) with whom the children live that asks the court to consider allegations of domestic abuse, and the other parent (often the father) that accuses the resident parent of ‘alienating’ the children from them. In some cases, one parent alleges both domestic abuse and ‘alienation’ against the other parent - the ‘alienation’ from the children being a continuing form of abuse.
It is not hard to see how these trends have fuelled polarised debates between groups representing mothers and fathers, and how on the back of this has developed a group of ‘experts’ in ‘parental alienation’ some of whom have sought to develop specialised terminology and advocated for ‘clinical’ research.
As practitioners in complex private children cases at Birketts we have represented those accusing and being accused of ‘alienation’ and been involved in fact-finding hearings to ascertain whether these behaviours have occurred. These situations are often complex and nuanced, even where the behaviours are found to have occurred.
A few notable examples (anonymised and slightly altered to ensure anonymity is preserved) in our own experience of what was found to be ‘alienating’ behaviour:
- A mother accusing a father of sexually abusing a child and being found to have coached the child to make these allegations
- A father moving home and geographical area without telling the mother, changing the child’s school and completing a form for counselling for the child setting out an entirely false and negative narrative about the mother
- A mother repeating to the children that their father had attempted to run over the maternal grandparents in a car (the parallel criminal proceedings finding the father ‘not guilty’)
- A father telling the children that old scars on their bodies were the result of injuries inflicted by their mother when they were very young
All of these behaviours (which were found to have occurred) profoundly damaged the relationship between the children concerned and the parent with whom they no longer spent time/lived with. However as with many situations in family law, it is generally not as simple as that. Often the non-resident parent may also be found to have been the perpetrator of domestic abuse against the resident parent, and this may have been witnessed (and the term is used loosely as children have an awareness extending beyond seeing and hearing abuse) by the children. The guidance is clear that even where these behaviours are found to have occurred that should not lead to an automatic response that a child should be removed from the care of that parent.
The guidance helpfully provides a glossary of terms used to describe 'the behaviours and emotions under discussion' and these recognise that there are occasions where a child’s rejection of a parent may be justifiable (Appropriate Justified Rejection) as a result of that parent’s behaviour towards the child and/or other parent, or because of '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' (Alienating Behaviours).
The guidance focuses on three elements (in summary): a. the child is reluctant, resisting or refusing to engage in a relationship with a parent; b. this is not as a consequence of the behaviour of that parent or justifiable; and c. the other parent has engaged in behaviours that have directly led to this situation.
The guidance recognises the relationship between allegations of domestic abuse and ‘alienation’ making it very clear though that one is a criminal offence, the other not. That a victim of domestic abuse may act protectively towards their child and move away from the area the perpetrator lives in, for example.
The guidance goes on to:
a. Give assistance to courts on the proper allocation of cases where allegations of domestic abuse and alienation are made (this in turn assisting practitioners in the proper preparation of applications to try and ensure appropriate allocation at the earliest stage);
b. Consider the impact of the Domestic Abuse Act 2021, participation directions and the use of QLR’s;
c. Consider the need for a robust approach utilising the three elements set out above;
d. Examine the engagement of PD12J and the criteria for deciding whether or not a fact-finding hearing is necessary or proportionate to determine the issues in the case (and the helpful guidance in Re H-N and Others (Children) (Domestic Abuse:Finding of Fact Hearings) [2021] EWCA Civ 448;
e. Explore how children express their wishes and feelings and their use of language which may be considered to be ‘adult’;
f. Make it clear that even where there are findings of fact of alienating behaviour this is only one part of a welfare determination using the welfare checklist to conduct a holistic exercise;
g. Give a practical approach for courts following a fact-finding, suggesting that parents should document their response to the findings so that the court can assess their willingness (and capacity) to work from this factual matrix going forwards;
h. Remind courts to then consider the need for the appointment of a guardian;
i. Set out the possibility of interim measures to ameliorate the impact on the child of alienating behaviours;
j. Suggest there is a need for child friendly judgments; and
k. Give guidance on the use of experts, including the timing and type of such evidence and the necessity for letters of instruction to avoid language that leads to confirmation bias.
So does this guidance ring the death knell for ‘parental alienation’? Not entirely.
The guidance will hopefully encourage (and remind) practitioners and courts to be more rigorous and consistent in their approach to these matters. We hope that in line with the president’s view, that the focus will be on the behaviour (if found) and on the impact on the child.
In practice, we’ve had reservations about the development of a body of ‘experts in parental alienation’ and the attempt to use scientific terms in relation to these behaviours. We very much welcome this guidance, with its reminders that decisions involving children should be made with reference to the whole of the welfare checklist, and that even where there are such findings, the willingness and capacity of parents to work with professionals in a child’s best interests following them, together with a demonstration of insight into the impact on the child is hugely important to determining a child’s future welfare.
Read the guidance here.
Rachel Frost-Smith is legal director in the Birketts family team
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