A child seldom needs a good talking to as much as a good listening to

A child seldom needs a good talking to as much as a good listening to

The matter of alienation now called alienating behaviour(s) remains one of the most contested topics within the family courts.  These are actions by one parent that intentionally or unintentionally undermine the child's relationship with the other parent. There remains a delicate balance between protecting victims of domestic abuse and seeking to protect children from the impact of alienating behaviours. Perpetrators of domestic abuse will often exploit the court system by raising issues of alienating behaviours seeking to use this as a litigation tactic to upset or discourage a victim. Simultaneously, there remain sincere loving parents wishing to have a relationship with their children who have been subjected to alienating behaviours. It is accepted and reaffirmed within the guidance that, where found, the damage of alienating behaviour to a child can be significant, like other forms of emotional/psychological child abuse.

In December 2024, the Family Justice Council (hereafter “FJC”) published their “Guidance on responding to allegations of alienating behaviours”. The guidance focuses on informing the court and professionals in the wider family justice system as to how allegations of alienating behaviour should be considered and responded to.

There has been a recent shift away from using the term ‘parental alienation’ and the guidance provides some new terminology which seeks to shift the focus towards the impact on the child, rather than the behaviour of the parents.

The guidance reaffirms the three essential elements that need to be established before it could conclude that alienating behaviour has occurred as in the case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam).

The FJC have provided detail as to what is needed to establish alienating behaviours on a factual basis.

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.

This may be the most crucial part for practitioners as once again early identification of the issue is of the upmost importance. It is incumbent on parties to ensure that the court understands their case. At the earliest opportunity the person making allegations should review whether they have evidence of all 3 elements and if possible, identify this to the court. The factual matrix surrounding a case of alleged alienation is one for the court alone.

The FJC seek to address the need to offer greater protection to the victims of domestic abuse in recognising the long-term harm that may be caused by such behaviour.

It is noted that there are concerns that allegations of alienating behaviours are being used as a ‘form of post-separation control/abuse, and as a litigation tactic to silence survivors of domestic abuse (both parents and children)’. From now on all those involved in a case must first consider whether the cause of this refusal is because the child is a victim of domestic abuse and harmful parenting or if there are other reasons for the child not wanting to spend time with that parent.

The welfare of the child remains the paramount consideration for the court. Regardless of if findings of alienating behaviour have been found, this does not necessitate an automatic change of residence. As with all family law cases careful consideration should be taken of the welfare checklist principles pursuant to Section 1(3) of the Children Act 1989 considering any findings the court has made.

Care and attention should be taken not to dismiss the voice of the child. There must be persuasive evidence to demonstrate that psychological manipulation has impacted on their capacity to express their wishes and feelings.