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A new report published by the Family Justice Council (FJC) this week has provided updated guidance on parental alienation in cases concerning arrangements for children within court proceedings.
Family Justice Council Guidance on responding to allegations of alienating behaviour 2024
What is Parental Alienation?
Parental alienation is a contentious and emotionally charged issue within family law and occurs when one parent systematically undermines the relationship between a child and the other parent. This can manifest in many ways but often through manipulation, false accusations, or restricting contact. This conduct can have long-lasting effects on the child’s emotional well-being and the integrity of family relationships.
Challenges in Addressing Parental Alienation
Prior to the new guidance, the FJC have faced numerous challenges in addressing parental alienation within the family justice system:
- Recognition and Definition: parental alienation has not always had a distinct legal concept, leading to inconsistency in how courts approach such cases. In some jurisdictions, the concept is not formally acknowledged, and allegations of alienation may be dismissed or misunderstood.
- Judicial Sensitivity and Training: While family judges are often skilled in handling high-conflict cases, the nuanced nature of parental alienation requires specialized training and a deep understanding of psychological factors. The FJC has worked to ensure that judges and other family justice professionals are equipped to recognize and respond appropriately to alienation, but there is still work to be done in this area.
- Balancing Parental Rights with Child’s Best Interests: In family law, the child’s best interests are paramount. However, determining whether a child’s rejection of one parent is due to parental alienation or is a genuine reflection of the child’s feelings can be challenging. The FJC advocates for careful assessment and balanced decision-making, ensuring that alienation is not mistaken for a legitimate breakdown in the parent-child relationship.
New Guidance
The updated guidance clarifies that parental alienation is not a diagnosable syndrome and questions whether the concept has been inadvertently legitimized within family law. In light of this, the FJC recommends a shift in terminology, suggesting that "alienating behaviour" should be used instead of "parental alienation" to prevent unfounded allegations. The guidance further makes it clear that:
- Any allegations of alienating behaviour must be evidence based;
- Where a child has rejected a parent, it is not always the case that this is a result of manipulative behaviour by the other parent;
- Reluctance or refusal of a child to engage with a relationship with a parent is not evidence in itself that they have been psychologically manipulated by the other parent; and
- The court must determine as a decision of fact whether or not such behaviours are present – this is not something that an unregulated third party expert can diagnose.
To assess whether alienating behaviours are present, the court needs to establish three factors:
- The child is reluctant, resisting or refusing to engage in a relationship with a parent;
- The reluctance, resistance or refusal is not consequential of the actions of that parent towards the child or other parent; and
- The other parent has engaged in behaviour that has directly or indirectly impacted the child, leading to the reluctance, resistance or refusal to entertain a relationship with the parent.
The guidance also emphasizes the importance of addressing allegations of alienating behaviours early in the proceedings to ensure timely and effective intervention.
Comment
As family law practitioners, we often encounter cases where one parent claims parental alienation or alienating behaviours. Given that parental alienation is one of the most complex and harmful issues in family law, capable of causing significant harm to both children and parents, the new guidance is generally welcomed for its potential to bring greater consistency across the court system, expert witnesses, lawyers, and clients. However, addressing the challenges of parental alienation requires ongoing efforts to understand why children may resist spending time with a parent.
While the guidance clearly states that parental alienation is not a diagnosable condition, it suggests that child-focused psychological experts may be increasingly brought in early in proceedings—not to diagnose, but to help uncover the root causes behind a child's behaviour. This approach could aid in providing a more comprehensive understanding of the situation.
However, there is a risk that judges may inadvertently overlook or exacerbate cases involving alienating behaviours. To mitigate this risk, robust and specific training for judges is crucial to ensure they are well-prepared to manage such cases effectively.
Speak to our parental alienation experts
If you have any questions regarding alienating behaviours or how this new guidance may affect your case, please do not hesitate to reach out to one of our experienced and expert Family Lawyers at Sharp Family Law.