In December 2024, the Family Justice Council issued new guidance which details how courts and legal professionals should respond to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and how to deal with allegations of ‘alienating behaviour’. This article aims to provide a short summary of the key points from the guidance.

By Sarah Hutchinson, Pupil Barrister at Spire Barristers

Introduction

 The guidance recognises that the concept of ‘parental alienation’ has been divisive and the subject of much debate within family law. It noted that the emotive tensions around the subject tend to focus on the parental behaviours, which detracts from the impact on the welfare of the child.

In his foreword the President of the Family Justice Council, Sir Andrew McFarlane, noted:

‘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.’

 The guidance preferred to refer to a child’s unexplained ‘reluctance, resistance and refusal’ to spend time with a parent rather than terms of ‘parental alienation’ or ‘alienating behaviours’. The guidance explains that that there is no evidential basis for the term ‘parental alienation syndrome’ and this could be regarded as a ‘a harmful pseudo-science’. Whilst the guidance raises concern related to the use of these terms, it acknowledges that the family court is regularly asked to consider and act upon these allegations.

A helpful ‘Litigation Journey Overview’ is provided by way of a flowchart and further assistance to the court is provided in guidance notes on five main areas:

• Case management
• The voice of the child
• Welfare decisions (where findings of alienating behaviours have been made)
• Understanding reluctance, resistance and refusals and psychological manipulation
• The use of experts

Terminology

 The guidance provides a glossary of terminology to describe behaviours and emotions to assist in understanding the topic which will be used throughout this article:

• Attachment, affinity and alignment (‘AAA’) – reasons why children may favour

one parent over another, or reject a parent, which are typical emotional

responses to parenting experiences and not the result of psychological

manipulation by a parent.

• Appropriate justified rejection (‘AJR’) – situation where a child’s rejection of a

parent is an understandable response to that parent’s behaviour towards the

child and/or the other parent.

• Alienating Behaviours (‘AB’) – psychologically manipulative behaviours,

intended or otherwise, by a parent towards a child which have resulted in the

child’s reluctance, resistance or refusal to spend time with the other parent.

[This term is capitalised throughout the guidance to refer to this definition].

• Protective behaviours (‘PB’) – behaviours by a parent towards a child in order to

protect the child from exposure to abuse by the other parent, or from suffering

harm (or greater harm) as a consequence of the other parent’s abuse.

• Reluctance, resistance or refusal (‘RRR’) – behaviours by a child concerning

their relationship with, or spending time with, a parent, which may have a variety

of potential causes.

Case management

 The guidance highlights the importance for early robust case management when alienating behaviours are alleged. This includes considering the nature, seriousness and complexity of the issues raised and the requirement to triage appropriately.

The guidance note on case management sets out that, before a court can conclude that alienating behaviours had occurred, the court needs to conclude that three elements have been satisfied.

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 appropriate justified rejection by the child, or is not caused by any other factor such as the child’s alignment, affinity or attachment; and 

 3) the other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent.

 Clear and detailed guidance is given on determining whether evidence of the three elements of alienating behaviours is present.

Whilst a child’s reluctance, resistance or refusal to interact with a parent is often attributed to ‘parental alienation’ it was emphasised that this in itself cannot amount to evidence of physical manipulation.

The guidance acknowledges concerns that claims of parental alienation can be used as a tactic to silence survivors of domestic abuse and undermine any such allegations. The guidance also acknowledges that there are a wide variety of reasons why a child might withdraw from a relationship with a parent. These may include, for example, protective behaviours and traumatic responses which do not constitute alienating behaviours.

A fact-finding hearing will only be relevant, proportionate and necessary when the issues to be determined are relevant to the ultimate issues to be determined in the case. The guidance goes on to list directions which might be considered in any fact-finding hearing.

It goes further to suggest considerations when allegations of domestic abuse and alienating behaviours are being heard at the same hearing.

The guidance details the burden of proof in fact-finding hearings:

“Whilst psychological manipulation of a child can be subtle and insidious, a parent alleging Alienating Behaviours must discharge the burden of establishing both that such harmful behaviour has occurred, and that this behaviour has led to a child’s unjustified reluctance, resistance or refusal to spend time with that parent.”

 When determining alienating behaviours, the court is required to analyse both the behaviour of the adult and its impact on the child. This must be done in the context of the child’s unique experiences, their resilience and vulnerability.

Unless there is evidence that a child has been manipulated into an unjustified reluctance, resistance or refusal to engage with an allegedly abusive parent, failed or false allegations of domestic abuse will not constitute alienating behaviour.

The court must give consideration to the instruction of any expert and must remember that ‘parental alienation’ is not a syndrome capable of being diagnosed. Expert evidence must only be directed when necessary and proportionate to the issues under consideration.

The voice of the child

 Efforts to promote a child’s wellbeing and their trust in professionals can be undermined by the behaviour of professionals when viewing their wishes and feeling in the context of alienating behaviours.

In the absence of compelling evidence to demonstrate that psychological manipulation has impacted on a child’s capacity to freely express their wishes, care should be taken not to dismiss their voice.

Consideration should be given to how the outcome of court proceedings is communicated to a child, particularly if there is a possibility that they may not agree with or be happy with the decisions.

Welfare decisions (where findings of Alienating Behaviours have been made)

 It is noted that a finding of alienating behaviour by the parent with whom the child lives with should not be a trigger for a change in the child’s placement. Instead, the overall welfare of the child should be considered.

The guidance includes a non-exhaustive list of practical considerations to be made when determining welfare decisions where there have been findings of alienating behaviours.

It also suggests child-friendly judgments including a short summary of the decision or a letter to the child which might help them understand the reasoning behind the decision.

Understanding reluctance, resistance and refusal and psychological manipulation

 It is acknowledged that a child may have a negative reaction to parental separation, and they may direct anger and resentment at the parent they perceive to be responsible for the relationship breakdown.

Other behaviours such as refusing to speak to parents or making derogatory remarks about them may also manifest. These should not be automatically taken to indicate evidence of exposure to physical manipulation by another parent in their own right.

The guidance acknowledges that it is well established that some parents manipulate their children into making false allegations in family law proceedings.

Parents may struggle to maintain a boundary between their own psychological needs and those of their child. The assistance of an appropriately qualified and registered psychologist expert may be required to understand the parent’s capacity to change this behaviour.

The use of experts

 The timing of the use of any expert in fact-finding is crucial. As is the type of expert evidence required.

Determination of the appropriate type of psychologist expert should be done in accordance with the Family Justice Council / British Psychological Society guidance for Psychologist expert witnesses (2023), which emphasises the importance of expert witnesses being alert to potential conflicts of interest. It also notes the importance of robust psychological approaches and refers to the President of the Family Division’s Memorandum on the use of experts in the family court (October 2021).

The assessments should not be carried out by academic psychologists or psychological researchers in the field of alienation.

The complexities in the cases are likely to require HCPC regulated Practitioner Psychologists with competence in assessing adults and children.

The guidance recommends the use of template letters of instruction provided by the Law Society to avoid the risk of confirmatory bias or narrowing the instructions for psychological evidence.

Conclusion

 The key message from the guidance is that there are multiple factors which need to be considered when dealing with allegations of alienating behaviour. The guidance highlights the importance of the issue within the family court and is a ‘must read’ for the court and practitioners in this area of law.

Family Justice Council Guidance on responding to allegations of alienating behaviour 2024

Sarah Hutchinson, Pupil Barrister at Spire Barristers