Sophie Wilson on parental alienation – The Family Justice Council’s guidance
The Family Justice Council (“FJC”) has recently released guidance on how the courts should treat allegations of ‘alienating behaviour’ in court proceedings involving children. The FJC is an advisory body, whose guidance will be followed by Family Court judges across England and Wales.
This guidance outlines three elements that need to be evidenced for there to be a finding of alienating behaviour by the court, as well as explaining how these allegations cross over with allegations of domestic abuse.
Defining Parental Alienation
The guidance outlines that there is no scientific basis for ‘parental alienation syndrome’, and expresses concern that parental alienation is being increasingly exploited within family litigation. This guidance has therefore been produced with the aim of assisting the court in prioritising the welfare of the child where such allegations have been made.
Instead of referring to a generic concept of ‘alienating behaviour’, the guidance offers a narrower definition: it is the child’s unexplained reluctance, resistance and refusal (“RRR”) to spend time with a parent that has come about due to psychological manipulation by the other parent. The guidance suggests that findings of alienating behaviour will be ‘relatively rare’.
There are 3 elements to alienating behaviour, and these all need to be fulfilled for a finding of alienating behaviour. These are:
- The child is reluctant, resisting or refusing to engage in a relationship with a parent or carer;
- The RRR is not a result of the actions of the parent making the allegations (for example, if the parent making the allegations is found to have perpetrated domestic abuse then a finding of alienating behaviour would not be appropriate, as the RRR of the child would be an appropriate justified reaction (“AJR”) to the abuse), and the RRR is not a result of other factors such as a child’s attachment; and
- One parent has engaged in psychological manipulation that has directly or indirectly impacted the child and led to the child’s RRR to engage in a relationship with the other parent.
Emphasis is placed on the fact that a child can have alignment and attachment issues that result in RRR without any alienating behaviour having occurred from the other parent. It explains that children respond to their parents separating with a wide range of emotions, and this can play out in resentment or anger towards one parent, or through other situations such as the child making derogatory comments about a parent to third parties. Such behaviours in themselves do not amount to alienating behaviour as that additional element of psychological manipulation has to be evidenced and found.
Psychological manipulation can arise, for instance, where a parent reinforces a child’s loyalty with emotional warmth, whilst withdrawing emotional warmth in response to their child’s perceived disloyalty when they are wanting to maintain a relationship with the other parent.
Crossover between domestic abuse allegations and alienating behaviour allegations
The guidance emphasises how parental alienation and domestic abuse are very different. If domestic abuse is found, this may have resulted in an AJR (where a child’s rejection of a parent is understandable given the circumstances). There also may be protective behaviours displayed by one parent if the other parent has been abusive. Both of these scenarios will not lead to a finding of alienating behaviour.
Although allegations of domestic abuse and alienating behaviour can be heard at the same court hearing, the court will first determine whether domestic abuse occurred and then consider the allegation of alienating behaviour in the context of that finding. If there is a finding of domestic abuse which led to an AJR, then the allegation of alienating behaviour will fail.
How will it affect the children involved?
The court is directed to have regard to the wishes and feelings of the child concerned, and the guidance offers a reminder that the welfare of the child is always the paramount consideration in any case. The voice of the child should not be dismissed, even in the absence of compelling evidence showing that psychological manipulation has taken place.
The court is also directed not to treat a finding of alienating behaviour in relation to the parent with whom the child lives as an automatic trigger for a change in the child’s placement. In such a case, the court should consider what the welfare consequences of moving the child would be. The finding of alienating behaviour should be looked at in the ‘wider factual matrix’ of the child and family’s circumstances, and in some cases Cafcass will produce a report outlining whether a change in placement is appropriate and/or practical.
There may also be a variety of steps taken by the court, designed to support the child throughout proceedings. These include appointing a guardian, working with third parties such as schools or consulting with Cafcass as to programmes that could support the family.
This helpful guidance should lead to clearer and swifter outcomes for families in some of the most difficult cases which appear in the Family Court. For most parents, going to court remains a last resort. Whether within the court process or outside of it, we routinely work with a variety of parenting experts, therapists and mediators who can help support parents and children even in the most difficult situations.
