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A new report has been published this week by the Family Justice Council, for judges and others working in the Family Justice System, providing guidance on how to respond to allegations of alienating behaviour within cases concerning arrangement for children.
The guidance follows once of the largest consultations in the Family Justice Council’s history, which emphasises the importance of this issue within the family court system.
The guidance makes clear that “parental alienation” is not a diagnosable syndrome and highlights the concern that the concept has been inadvertently legitimised within family law cases in recent years, despite this.
Moving forward, such allegations should be referred to as “alienating behaviour” rather than “parental alienation”.
The guidance makes clear that:
- any allegations of “alienating behaviour” must be evidence based;
- it is not always the case that a child has rejected a parent as a result of manipulative behaviour by the other parent;
- a child being reluctant, resistant or refusing to engage in a relationship with a parent is not in itself evidence that they have been psychologically manipulated by the other parent; anda
- it is the role of the court to determine as a decision of fact whether or not such behaviours are present – and this is not something for an unregulated third party expert to determine or diagnose.
Before concluding that alienating behaviours have occurred, the guidance provides that three elements need to be established:
- the child is reluctant, resisting or refusing to engage in, a relationship with a parent or carer; and
- the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent; and
- the other parent has engaged in behaviour that has directly or indirectly impacted the child (which have led to the children’s reluctance, resistance or refusal to engage in a relationship with that parent).
Given the impact that domestic abuse can have and the importance of protecting children, in cases where findings of domestic abuse are made, which have resulted in either (a) an appropriately justified reaction by a child, (b) protective behaviours by the victim parent, or (c) a traumatic response on behalf of the victim parent, then alienating behaviours will not be found.
The guidance stresses the importance of the court addressing allegations of alienating behaviours as early as possible within the proceedings.
Comment
The concept of “parental alienation” has increasingly become a regular feature of many cases involving the family team at Michelmores over recent years. This is a complex and contentious area within children law cases, and it is positive that proper thought and time has been given to the most appropriate approach to be taken in cases where allegations of alienating behaviour have been raised.
The guidance is broadly welcomed to provide consistency between professionals – be that the court, third party experts and lawyers – when dealing with these complex and challenging cases, in order to find the right outcome for the child(ren) concerned.
However, wider problems still remain within the family justice system, which will not be resolved through this guidance.
It is often difficult for the court and other professionals to get to the root of why a child is refusing to spend time with a parent. Is it because of historical domestic abuse within the family, or as a result of manipulation? In a system plagued with backlogs, lack of resources, and not enough specialist judges, the family court is time poor and often ill-equipped to grapple with these issues.
There is clearly a risk associated with judges being tasked with determining if allegations of alienating behaviours are proven. They are (invariably) not trained psychologists or psychiatrists. In addition, many are not sufficiently trained in understanding the nuances of domestic abuse, in particular controlling and coercive behaviours and the impact these can have on a family not only during, but for many years after the abusive relationship ends. This is particularly relevant given the findings made by the FJC about the impact findings of domestic abuse can and will have on cases where there are also allegations of alienating behaviour.
All family court judges need specific robust training to be able to grapple with decisions around allegations of alienating behaviours to ensure that they properly understand the dynamics involved and are able to find the most appropriate and safe outcome for the child, ensuring their welfare is at the heart of the decisions made.
There is still a lack of support available for families once alienating behaviours have been found and thought needs to be given as to how this gap can be addressed, as all too often, a decision and order being made by a judge is far from the end of the story and families and children are left to cope with the aftermath of the decisions made by the court.
The report can be found here.
Should you wish to discuss any of the issues raised in this article, please contact Sarah Green.
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