In December 2024 the Family Justice Council (“FJC”) released new guidance detailing how the Court’s should deal with allegations that are made by parents about “alienating behaviour” in cases which involve children.
President of the Family Division of England and Wales, and Chair of the Family Justice Council, Sir Andrew MacFarlane, said: “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”.
Parental alienation is where one parent makes a calculated attempt to alienate their child from the other parent. This can be through negative behaviours or manipulation to undermine and damage the child’s relationship with the other parent.
The guidance released by the FJC recognises that whilst allegations are often made in private law proceedings about alienating behaviours the act of such cases being the reality are relatively rare. Such allegations require careful consideration to ensure that they are not simply being used by one parent as a strategy to deflect or minimise allegations of abusive behaviours.
Where one parent makes allegations that the other parent has caused parental alienation, a Court would need to be satisfied that all three elements below are established before it could conclude that alienating behaviour had occurred:
Only in circumstances where the Court finds that all three of the above are present, will a finding by the Court be made.
The FJC acknowledges that there are other factors which might cause a child to withdraw from their relationship with a parent could include coming to their own conclusions about what has happened; experiences of harmful parenting by that parent; neglect; or exposure to abuse (either abuse towards themselves or the other parent). There could also be attachment issues which can result in the child being reluctant, resistant or refusing to engage in a relationship with one parent.
The guidance also recognises that a child’s reluctance, resistance and refusal might remain unexplained.
Although allegations of domestic abuse and alienating behaviour can be heard at the same Court hearing, the Court will first need to determine whether domestic abuse occurred and then consider any allegation of alienating behaviour in the context of that finding. If there is a finding of domestic abuse which led to an appropriate justified reaction, then the allegation of alienating behaviour will fail.
In all cases involving children, the Court must have regard to the wishes and feelings of the child concerned, and the guidance offers a reminder that the welfare of the child is paramount.
The Court is 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. The wider circumstances for the child and family must be considered in response to a finding made by the Court.
This guidance is hoped to lead to clearer and swifter outcomes for families in some of the most difficult and divisive cases which appear in the Family Court.
The full guidance can be found and viewed at: https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/family-justice-council/resources-and-guidance/parental-alienation/
The Domestic Abuse Commissioner, Nicole Jacobs says, “The Family Justice Council’s new guidance has been long awaited and addresses the contentious issue of a child’s reluctance, resistance or refusal to spend time with a parent in an abuse-informed way that considers the wider context of abuse within a family”.
“It is deeply encouraging to see that the guidance unequivocally recognises that allegations of ‘alienating behaviours’ are often exploited by perpetrators to avoid accountability and minimise the experiences of domestic abuse victims and survivors. This is in line with caselaw emerging from the Family Court. This form of abuse, re-victimisation and re-traumatisation cannot be permitted in the Family Court and is a key priority for my Office”.
“I am pleased to see the President of the Family Division has welcomed this guidance and applaud the efforts to addressing ways that the family justice system can be misused by abusers to continue and further their abuse post-separation”.
“If implemented holistically, alongside Cafcass’ new Domestic Abuse Practice Policy and the child-centric practice emerging from Pathfinder Court pilots, this guidance has the potential to significantly improve outcomes for children and adult victims in the Family Court. The first step is embedding the guidance into training at all levels of the family justice system”.
Our specialist Child Care Team offers legal advice to parents and family members involved in this area of law. Should you require any assistance, please contact our Child Care Team on 01935 424581.