Family Justice Council releases guidance on alienating behaviour

The concepts of ‘parental alienation’ and ‘alienating behaviours’ are widely debated by both family law professionals and the wider public. Though used frequently, there has been a lack of clarity around what these terms actually meant and their use within family law cases. This led to one of the largest ever consultations conducted by the Family Justice Council (FJC), resulting in their ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’ published today.

The aim

The aim of the FJC’s Guidance is to assist the court in dealing with allegations of parental alienation and alienating behaviours. The focus should be on the impact of certain behaviours on the child and their welfare as a result, rather than the behaviour of the parents more narrowly.

It contains 5 specific Guidance Notes within it for the benefit of the court, family law practitioners and other professionals. These cover Case Management, the Voice of the Child, Welfare Decisions where Alienating Behaviour findings have been made, understanding RRR (see below) and use of experts.

Terminology

A key aspect of the Guidance is the clarification of appropriate terminology to be used within cases.

Parental alienation syndrome – The FJC confirms that this syndrome has no evidential basis, and even goes as far as to say the concept is harmful and exploited within family court cases.

Attachment, affinity and alignment (AAA) – This is where a child may favour one parent over the other due to normal child responses to parenting experience, and is not the result of psychological manipulation by a parent.

Appropriate Justified Rejection (AJR) – This is where a child’s rejection or reluctance to see one parent is an understandable response to that parent’s behaviour.

Alienating Behaviours (AB) – The FJC define these specifically as ‘psychologically manipulative behaviours, intended or otherwise, by a parent towards a child which have resulted in the child’s RRR to spend time with the other parent’. It is important to note here that this definition has two prongs that must be satisfied by anyone alleging AB – (1) that parent must show and evidence that the other has engaged in manipulative behaviour, and (2) that that behaviour has impacted on the child’s behaviour. There is a three-prong test that must be satisfied before a court can find that AB has occurred.

Protective Behaviours (PB) – This is where one parent engages in behaviour to protect the child from abuse or further harm as a consequence of the other parent’s abuse.

Reluctance, Resistance and Refusal (RRR) – This refers to a child’s reluctance, resistance or refusal to see one parent. This may have a variety of causes and is not alone evidence of Alienating Behaviours.

The test for Alienating Behaviour

The FJC set out clearly that the court needs to be satisfied of 3 elements before it can find that Alienating Behaviours have occurred. These are:

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 is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an AJR by the child, or is not caused by any other factor such as the child’s AAA; and
   
   
3. 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.

Key messages from the Guidance

The Guidance deals with a multitude of different factors at play when it comes to allegations of alienating behaviour, and is a must read for any professional working in children law. But there are a few key themes that come out of the note. The first is that a child’s RRR could be caused by any number of things happening in their life, not least the relationship breakdown of their parents which can elicit a range of emotional responses. Their reluctance to see one parent cannot in and of itself be evidence that the other parent has conducted alienating behaviours. Their behaviour needs to be seen within the wider familial context and sometimes, there may simply be no obvious cause or reason for their RRR. Also, their behaviours may be understandable where they have an attachment/affinity with one parent (AAA) or justified reason (AJR) not to want to see that parent.

There is also discussion of the interplay between allegations of domestic abuse and of alienating behaviours. There have been concerns that that alienating behaviours are used following domestic abuse within a relationship as a form of control over the other parent, or to minimise a victim’s experience of harm. The FJC is clear: domestic abuse and alienating behaviours are not equivalent. Domestic abuse is a crime in its own right and fact finds can be made about it within proceedings. Alienating behaviour will result in emotional harm to the child.

But given that children can be victims in their own right and experience domestic abuse within their household, where findings of domestic abuse, then the child may show RRR behaviour. This may be because they justifiably reject the parent that perpetrated that abuse (AJR), the victim parent engages in protective behaviours (PB) and/or there is a traumatic response on the part of the victim parent. Parents have a responsibility to protect their children from home, so the FJC is also clear that ‘PB cannot amount to Alienating Behaviours’, nor can a parent’s or child’s traumatic response to abuse be consider Alienating Behaviour.

There is a specific Guidance Note regarding case management, and the power of this should not be underestimated. The FJC reiterates that, at all times, the court is one responsible for making fact find decisions on whether domestic abuse and alienating behaviours have occurred. It is not the role of CAFCASS to determine this, nor any other experts that the parties may seek to involve in proceedings. As always, the court is under a duty to consider whether a specific fact finding hearing is ‘relevant, proportionate and necessary for the determination of the welfare issues’. If a parent alleges parental alienation, they must prove their case with evidence just as with any other allegation within proceedings- vague or simple assertions will not suffice.

Ultimately, any finding of alienating behaviour is still only one piece of the puzzle within proceedings. A finding of AB will not automatically trigger a change of residence. There are numerous other aspects to the family’s factual matrix that must be considered before the court can determine what arrangements are in the child’s best interests. The court will consider any findings of alienating behaviour alongside their consideration of the welfare checklist.

If you believe your case is affected by Alienating Behaviour and would like to discuss the content of the Guidance further, then please do get in touch with us and we would be happy to assist.

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