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The Family Justice Council (FJC) guidance on responding to allegations of alienating behaviour
The Family Justice Council (FJC) has published guidance for Family judiciary, and those working in the Family Justice System, on responding to allegations of alienating behaviour. The guidance can be found via the following link -
The guidance, which is titled ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’, follows one of the largest consultations in the FJC’s history, with nearly 100 responses from individuals and stakeholders.
In summary, the guidance:
- debunks myths that there is a diagnosable ‘syndrome’ of parental alienation and provides a helpful guide of important steps to follow where a child is reluctant, resistant, or refusing to see a parent.
- is a reminder that decisions of fact relating both to allegations of alienating behaviour or domestic abuse are a judicial function.
- tackles the difficult issue of allegations of alienating behaviour being made alongside allegations of domestic abuse, the impact on survivors and the importance of unpicking the complex interplay between these issues.
- centralises the voice of the child, putting children back at the heart of cases concerning them.
In the foreword to the guidance, the President of the Family Division of England and Wales, and Chair of the Family Justice Council, Sir Andrew MacFarlane, said: “The issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate. The guidance note reflects the complexity and challenges of this area of family law. It has been long awaited.
“I approved this workstream for the Family Justice Council knowing how divisive this topic has become. In my view this guidance is required to ensure greater consistency of approach across the courts and to improve outcomes for children and families and to protect children and victims from litigation abuse. It has my endorsement and I encourage everyone working within the family justice system to read it carefully.”
Why is this guidance important?
There remains considerable tension around the concept of ‘parental alienation’ and the associated term ‘alienating behaviours’. These highly emotive tensions serve to polarise opinion in a way that is often counterproductive to the best interests of children, and which shifts the focus away from the voice of the child. The purpose of this guidance is to assist the court in determining the welfare of the child where allegations of ‘parental alienation’ or ‘alienating behaviours’ are made, by maintaining a focus on the impacts on the child rather than on parental behaviours per se. 1
A child’s reluctance, resistance or refusal to spend time with a parent is often alleged to be a result of ‘parental alienation’. Despite the lack of research evidence, and international condemnation, reference is still made to the discredited concept of ‘parental alienation syndrome’. 2 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. Concepts of ‘parental alienation syndrome’ and ‘parental alienation’ are increasingly exploited within family litigation. 3
This guidance does not aim to explore the research surrounding and discrediting the concept of ‘parental alienation’ or the socio-political context in which such allegations arise, or to give an historical account. The importance of such issues is not underestimated. However, the focus of the guidance is to inform the courts and professionals in the wider family justice system as to how allegations of Alienating Behaviours should be considered and responded to; recognising that they are allegations that can arise at different points in the litigation journey and are likely to be made alongside allegations of other harmful behaviour, including domestic abuse or other forms of child abuse.
This guidance acknowledges 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. Alienating Behaviours range in intensity and their impact on children, but these harms can be far reaching. They can affect a child’s emotional, social and psychological development. Severed relationships and growing up with a false narrative can also have a harmful impact on a child’s identity, self-worth and sense of safety in the world. Whilst the focus here is on the welfare outcomes for children, it is also important to recognise the very significant emotional impact on parents of the loss of a relationship with a child.
It is hoped that this guidance will contribute to increased understanding, good practice, and ultimately good welfare outcomes for children. The guidance includes sections on the litigation journey; case management; welfare decisions; understanding reluctance, resistance and refusal and psychological manipulation in cases in which Alienating Behaviours are alleged; and the use of experts.
The guidance is intended to be of assistance to the court at whatever stage of the proceedings the issue of Alienating Behaviour is to be considered.
Important points for Case Management
Alienating Behaviours - three necessary element
In Re C (‘Parental Alienation; Instruction of Expert), 4 Sir Andrew McFarlane adopted the definition proffered by the Association of Clinical Psychologists (ACP-UK) 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. He observed that what is important 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.
A court would therefore need to be satisfied that three elements are established before it could conclude that Alienating Behaviours had occurred:
1) the child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer; and
2) the reluctance, resistance or refusal (RRR) is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection (AJR) by the child or is not caused by any other factor such as the child’s alignment, affinity or attachment (AAA) and
3) 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.
Alienating Behaviours range in intensity and their impact on children. They can be observed in both families where parents remain together and in those where parents separate.
Either or both parent(s) could engage in psychological manipulation which may or may not manifest in RRR on the part of a child.
The guidance sets out a number of factors for the Court to consider when allegations of alienating behaviours have been raised. Full details can be found in the guidance but below is a summary of the factors:
a) Appropriate justified rejection (AJR) and attachment, affinity and alignment (AAA) - The court should remain mindful that a child might withdraw from a relationship with a parent for a variety of reasons.
b) Protective behaviours and traumatic responses - The context in which alleged Alienating Behaviours occurs must inform an understanding of parental behaviour. A parent may be engaging in protective behaviours (PB) to shield a child from (further) harm, such as limiting contact with a perpetrator of abuse or moving away from the area. Indeed, when considering the child’s welfare, parents are expected to protect a child from harm. PB therefore cannot amount to Alienating Behaviours.
c) Triage - Where the alleged behaviour is mentioned in the original application or response, the Legal Adviser or Judge triaging the case will need to consider the nature, seriousness and complexity of the issues raised in deciding whether the matter can be retained by the Magistrates for case management under the allocation rules. The Legal Adviser or Judge triaging on issue should remind themselves of the elements that those making the allegations of Alienating Behaviours would be required to establish. It is likely that the majority of private law matters allocated to Magistrates will continue to be heard by the Magistrates. Where a Magistrates’ Court has determined that allegations of Alienating Behaviours lack substance and the case remains with the Magistrates, the Legal Adviser and Magistrates must ensure that the court’s deliberations on welfare do not re-introduce unsubstantiated allegations of Alienating Behaviours. Where, after careful analysis of the information provided to the court in the documents, it appears that all three elements of Alienating Behaviours (described above and below) may be present, the case must be transferred for case management and determination by a Judge.
d) Timing of allegations - Whilst allegations of Alienating Behaviour might be raised in the original application or response documents, the allegations might be raised for the first time at any stage in proceedings e.g., at the first case management hearing, or at a subsequent point, as a reason for the breakdown in child/parent relations.
It is incumbent on the court to case manage robustly to avoid, whenever possible, Alienating Behaviours being raised as an issue for the first time late in proceedings. Where such allegations are raised after the initial stage in proceedings it is important that the case is allocated/re-allocated to a Judge if there appears to be a solid evidential base necessitating judicial determination of the issue.
e) First hearing - The initial case management hearing may be the first opportunity for the court to consider the basis on which the allegation of Alienating Behaviours is made and to give directions accordingly.
f) Are the three elements evidenced?
- Is there evidence that the child is reluctant, resistant or refusing to engage with a parent?
- Is the child’s RRR consequent on the actions of the parent raising the allegations towards the child or the other parent?
- Has one parent engaged in psychological manipulation that has directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with the other parent
g) Is a fact-finding hearing relevant, proportionate and necessary? 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. It is not appropriate for experts to ‘diagnose’ or risk assess Alienating Behaviours.
h) Directions for fact-finding - The following directions might be considered:
- 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. 10 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 dome
i) The fact-finding hearing
j) Next Steps - Where the court has made findings of fact (whether of domestic abuse or Alienating Behaviour), the court will need to consider whether further or other evidence is needed for the court to conduct a proper welfare evaluation. The court must not direct the instruction of an expert unless such evidence is both necessary and proportionate to the issues under consideration. The court must consider the type of expert evidence required, always remembering that ‘parental alienation’ is not a syndrome capable of being diagnosed. The use of an expert at this stage would be to help the court decide on welfare outcomes. Separate sections of this guidance are designed to assist the court on the appointment of experts and welfare outcomes.
I would urge anyone who deals with cases where allegations of parental alienation arises to read this guidance in full.
