Welcome clarity on parental alienation? The Family Justice Council releases guidance

The guidance offers welcome clarity on an increasingly prevalent and controversial issue in cases run by parents (and other family members) in the family court. Many of the principles may appear common sense applications of current law and practice, but there is useful procedural guidance and greater consistency about how other principles operate when applied to this particular issue.

Alienating behaviours terminology

Since Re C [2023] EWHC 345 (Fam), the courts have moved away from using the term “parental alienation”.  The guidance reinforces this and introduces some new terms to describe behaviours and reactions of children who may not want to see a parent:

• RRR (reluctance, resistance or refusal)
• AJR (appropriate justified rejection)
• AAA (attachment, affinity and alignment) and
• PB (protective behaviours).

Defining and making findings of alienating behaviours

The guidance sets out what is needed to establish alienating behaviours. All 3 elements must be present.

• A child is reluctant, resisting or refusing (RRR) to engage in, a relationship with a parent or carer
• The reluctance is not consequent on the actions of that parent towards the child or other parent (e.g. it may be an AJR or caused by the child’s AAA)
• The other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s RRR to engage in a relationship with that parent.

Notably and perhaps controversially, this is a consequential definition. ‘Bad behaviour’ which does not result in a child’s reluctance, resistance or refusal to engage in a relationship is not an ‘alienating behaviour’.

A parent may assert that attempted alienation has not been adequately considered. But negative behaviours by one parent to attempt to influence the child’s view of the other would be something to be considered in the welfare analysis.

What is also not considered is the potential of any such behaviour, if it continues, to be repeated and then for that to damage the parent/child relationship. This is addressed briefly in the guidance:

“65. The court should not, however, consider or anticipate the likely impact of adult behaviour without reference to its manifestation in the child. The extent or severity of the impact in the child will of course be relevant to the court’s determination of welfare. “

Applying these principles is likely to constitute a significant proportion of the court’s task when addressing alienating behaviours.

The guidance also makes clear that courts should be cautious about making ‘default’ findings of alienation when there is no obvious reason for the child rejecting that parent. See paragraphs 103 and 104 of the guidance.

Court procedure to follow when alienating behaviours are alleged

There is helpful information, including a flowchart, on the court procedure to follow when alienating behaviours are alleged.

• Early on, review whether you have evidence of all 3 elements and how the listing of fact-findings should be approached.
• Consider the guidance on re-allocation from the magistrates when it appears the 3 elements may be present (paragraph 31). These principles will be important for case management following the initial hearing.
• Importantly, you may need to draw the court’s attention to the fact that once it has decided ‘alienation’ allegations are unfounded, it cannot then revert to reliance on this in future judgments on welfare (paragraph 30 of the guidance).

Focus on the child

There is a very clear message that findings of alienating behaviours should not result in an automatic change of residence.

Of course, every case is fact-specific and the impact of decisions on the child’s welfare must be considered in the round with reference to the checklist, modified as appropriate in the context of any findings of alienating behaviours (with reference to the guidance provided in the FJC document).

What is likely to be positive is the focus on the reasons for any RRR, looking at other reasons the child may have for demonstrating such behaviour, as well as looking at the situation from the child’s perspective.

This will be important for lawyers when advising clients or addressing the court on any orders where there is alleged or found alienating behaviour.

There is also specific guidance around how the child’s wishes and feelings should be approached at paragraph 71. This will be important for professionals preparing reports for the court as well as for the court when conducting its analysis of evidence and welfare.

Frequency

Drawing on research, the guidance is clear that alienating behaviours which actually impact a parental relationship will be rare. Thus, findings will also be rare.

How this will in fact play out in individual cases is difficult to tell.

Interplay with domestic abuse

As family lawyers will know, allegations of alienating behaviours are often made in response to domestic abuse allegations. The Family Justice Council has provided much-needed guidance about how to address this dynamic.

• Firstly, it emphasises that domestic abuse is much more common than alienating behaviours. The difference in prevalence and the harm caused by domestic abuse means the two cannot be equated.

Therefore the “risk, relevance and weight attached to ‘parental alienation’ and domestic abuse should not automatically be considered equal” (paragraph 17).

• Secondly, allegations of ‘alienation’ can be used as litigation tactic. Consequently, there is a pressing need for specificity in allegations of alienating behaviours.

Family lawyers should be aware of this and address such allegations at an early stage.

• Thirdly, although allegations of domestic abuse and alienating behaviours will often be heard together at a fact-finding, is this appropriate? Does it enable parties to give their best evidence?

When dealing with case management, lawyers will need to consider these procedural considerations.

• Fourthly, and perhaps most importantly, the guidance provides some helpful detail on the practical interplay between domestic abuse and alienating behaviour. For example, when looking at making findings, the guidance states:

“The court’s deliberations should begin with domestic abuse and review the Alienating Behaviours allegations through that prism. If a court finds that domestic abuse has occurred resulting in AJR by the child, the allegations of alienation will fail.” (Paragraph 52).

This also includes the concept of protective behaviours and how actions by parents may be a response to abuse, and a clear pronouncement that failure to make abuse findings does not automatically mean a finding of alienation.

It is well worth having a detailed read of the guidance’s analysis on this point and applying the relevant parts to any case in which these two concepts are at play.

How these principles may be applied in cases where a parent refuses to facilitate contact with an abuser, but there is no finding of alienating behaviours, per se, will require exploration by the court.

Child’s welfare

Court orders are not meant to punish or admonish the family, and the focus throughout proceedings must be on the child’s welfare.

Furthermore, non-compliance in and of itself should not be conflated with welfare.

Notably, the document makes reference to ‘good enough care’ – a phrase usually reserved for public law children cases. Whether this concept will be extended to resist change of residence in non-alienating behaviour cases remains to be seen.

Nevertheless, this is an interesting development which family lawyers should be mindful of in change of residence cases.

Timescales are also relevant. Work proposed which is outside the child’s (and, it is indicated, the court’s) timetable should not lead to delay in making final decisions or proceedings being kept open indefinitely.

This may be disheartening for some parents to hear, but again keeps the focus on the child.

One slightly confusing aspect of the guidance is as follows:

“99. Even where the court has conducted its own welfare analysis and carefully weighed in the balance the risks of harm to the child under the various options, the court should keep its decision under careful review consistent with the child’s welfare and a potentially changing landscape.”

Local authority involvement

Anecdotally the court and guardians are approaching local authorities more and more frequently in cases of alleged harm through alienating behaviours.

In my experience, the possibility of a foster care placement when such behaviours are shown is being raised with increased frequency. The guidance highlights the importance of the guardian liaising with local authorities when changes of placement are contemplated. Specifically, it emphasises a ‘bridging placement’ being offered where appropriate.

The guidance envisages that in most cases, where a change of placement is contemplated, a s.37 report should be commissioned.

Local authorities will need to familiarise themselves with the guidance, and lawyers may need to remind them of the relevant paragraphs when they are asked to become involved.

The role of experts

The guidance is very clear that ‘parental alienation syndrome’ is not a concept supported by evidence and is not something to be ‘diagnosed’ by experts.

The appointment of an expert has to be necessary in line with the principles set out in the guidance. An expert assessment has the potential to cause harm.

• Be cautious about appointing an expert who has a financial interest (or one of their associates does) in providing consequent work.
• Carefully think about the expert’s identity and their remit - a properly constituted Part 25 application is critically important.
• All parties are expected to contribute to the cost of an expert if it their involvement is found to be necessary. (Putting all costs on a guardian’s public funding certificate will be unacceptable unless the proper regulations have been followed).