Alienating behaviour cases are amongst the most complex and challenging matters which cross our desks, even where the allegations are not ultimately made out. The emotional impact on the children, the parents and wider family, as well as on the legal and other professionals involved can be acute – as can the financial ramifications. These cases can return to court month after month and year after year.
That impact is exacerbated by the delays that continue to be the legacy of the Covid-19 pandemic and general pressures on the court system and, whilst in my experience, judicial continuity can be incredibly valuable, that is difficult to put in place and maintain.
So, what can we do differently and better? And how?
New FJC guidance
In December 2024, the Family Justice Council (FJC) published its eagerly awaited ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’ to assist the family court and legal professionals in dealing with cases such as these, where, put simply, a child is unwilling to engage with a parent.
The guidance clarifies how these cases should be approached, balancing the rights of the parents and the best interests of the children and, in the foreword, the President actively ‘encourage[s] everyone working within the family justice system to read it carefully’.
What behaviour(s) are we talking about?
‘Parental alienation’ is a now a well-known term. Like ‘narcissism’ or ‘coercive control’, it is a term that clients and litigants in person adopt but may not – and this is not a criticism – be aware of what it truly entails. Indeed, a client may come to a first meeting with a lawyer feeling sure this is a factor in their case and already alarmed by stories about the outcomes of ‘alienation’ cases, which they’ve read about or which family and friends have brought to their attention. Conversely, others may see it is a terminology weapon to brandish in litigation. That first meeting, and the questions that the lawyer asks of their client, is a crucial starting point in establishing whether this is a case where these types of issues arise – or identifying any red flags that suggest it might become one because of their client’s or the other party’s approach.
The use of language in these cases is extremely important. ‘Parental alienation’ and ‘parental alienation syndrome’, for example, are emotive and difficult terms that the FJC wants to steer away from due to a lack of evidential support, focusing instead on identifiable actions and behaviours.
In the guidance, the relevant behaviour is described as ‘psychologically manipulative actions by one parent that result in a child becoming reluctant, resistant, or refusing to engage with the other parent’ (‘RRR’, emphasis added). This behaviour can take many forms, including undermining the child’s perception of the other parent or creating an environment of hostility, and various levels of severity.
According to the guidance, the court will need to be able to establish whether all of the following three key elements are present:
- A child’s (evidenced) reluctance, resistance, or refusal to engage with a parent; and
- An absence of justifiable reasons for the child’s behaviour in that regard (e.g., there has been no abuse or neglect); and
- Evidence that the other parent’s direct or indirect actions are the root cause of this reluctance, resistance, or refusal.
This clear and structured approach will assist the court, but also the parties/their lawyers to ‘stress test’ claims of alienating behaviour from the outset and to ensure that they are properly put to the court. Evidence and detail are key.
Key issues addressed in the guidance
The guidance highlights several issues that have long been points of contention in family law:
- Protecting against misuse: As I touch on above, there are the cases where false or exaggerated allegations of alienating behaviour are made and where a party weaponises the term to divert attention from, say, domestic abuse. The guidance stresses the need for robust fact-finding hearings, where appropriate, to ensure accurate assessments and protect against misuse and helpfully sets out suggested directions at para 50. That fact-finding hearing may be an additional expense for those parties who are represented but, if there is misuse and it is identified early, this can lead to crucial cost and time savings.
- Balancing domestic abuse allegations: In my experience, cases can often involve, what the FRC describe as ‘intersecting claims of alienating behaviour and domestic abuse’. The guidance emphasises the importance of treating these as separate but interconnected issues, requiring detailed investigation to avoid combining the two. Noting that true ‘RRR’ cases are relatively rare, the FJC adds, at para 16 ‘…allegations of domestic abuse feature in at least 50-60% of private law children cases. The relative relevance and prevalence of domestic abuse places it in an entirely different category to allegations of ‘parental alienation’. Domestic abuse is a crime impacting both adults and children who are victims in their own right’. If a fact-finding hearing is listed to deal with both allegations of alienating behaviour and domestic violence, particular guidance is given at 54.
- The role of experts: At paragraph 108, the guidance advises using against using experts at a fact finding/determination of alienating behaviour stage (saying it is ‘inappropriate’), but instead doing so once findings have been made and welfare is being considered. The point being that alienating behaviour is a question for the judge, not an expert. The guidance adds that ‘…the timing and type of expert evidence needed is crucial. In determining the welfare outcome, when the presence of such harmful behaviours has been identified, it may be necessary to have expert evidence from a psychologist expert’. The guidance advises caution when you do get to the stage of appointing experts in alienation cases – this is an issue which, again, has been in the national press, in addition to the legal press and is something which a client will often raise, with trepidation. The guidance underlines the importance of selecting professionals with relevant qualifications and experience and particularly warns against using those with financial stakes in subsequent interventions. In cases where the outcomes can be so devastating for a party, the children and the wider family, the judge must know that the expert can be properly relied on and, even if their conclusion is not accepted by all sides, is respected.
- Listening to children: Central to the guidance is the need to give children a voice in proceedings. It is recognised that a child’s reluctance to engage with a parent may stem from a range of factors, including their own experiences, and not necessarily because of manipulative behaviour by a parent. Children in these situations do often have a lot to say, when they feel supported in doing so and being heard. Those children that do not feel heard often carry that deep disappointment or frustration with them into adulthood. There is an important point at para 24 ‘Alignment and attachment issues can result in RRR without any Alienating Behaviours being perpetrated by an adult. Indeed, it is important to recognise that a child’s RRR may remain unexplained, and the lack of a clear explanation does not confirm exposure to Alienating Behaviours. The child may have other reasons or motivations for their actions, e.g., their feelings about a new adult relationship or unhappiness about the practical arrangements in place’.
Challenges in implementation
While the guidance provides a much-needed framework which, in my view, would make a positive and tangible difference in these case, its implementation poses challenges:
- Judicial training: Our judges must be supported in implementing the guidance. These aren’t ‘just’ black letter law issues, there is a wealth of physiological issues to take into account. Having the time to handle these cases with consideration, sensitivity and precision and determining whether a parent is ‘appropriately protective’, having a ‘traumatic response’ or engaging in ‘alienating behaviours’ (para 27), is not easy when you have a busy list and, as is often the case here, a very full court room.
- Resource constraints: Again, the need for fact-finding hearings, expert assessments, and child-focused interventions may place additional demands on an already stretched family court system. The guidance underlines the need for early and active case management (there are echoes of the recent judicial guidance about running ‘conduct’ in financial remedies cases here).
- Cultural shifts: It is also noted that moving away from entrenched biases about parental roles requires a cultural shift within the legal system and wider society. That is a not a ‘quick win’.
Implications for legal practice
Having said that, the guidance introduces a well-considered framework for evaluating alienating behaviour. Early and rigorous case management is encouraged, including prompt identification of issues, tailored case strategies, and clear decision-making pathways. There are steps that lawyers/parties can take – the answer to my ‘what can we do?’ If adopted, it will hopefully result in more focused hearings and timely resolutions, reducing stress on children and families – all of which, without doubt, judges, lawyers and professionals want to achieve for the families asking for their help.
Likely impact on families and the justice system
In my view, the FJC’s guidance on alienating behaviour represents a significant step forward in handling one of the most complex issues in the family law system. By addressing key challenges and providing a clear framework for courts, it seeks to ensure that children are protected from harm, while safeguarding the rights of parents.
This guidance does not (and never could) present practitioners with a quick fix. In the long term, it is hoped that the guidance will improve outcomes for children and families. By promoting a structured approach, I do think it would decrease the risk of inconsistent decision-making and ensure that the child’s welfare remains paramount. Many, many benefits would flow from this – at the top of that list being happier children with positive bonds and deeper relationships with their parents and the public having increased confidence in the family justice system.
Conclusion
I will not forget the impact, on everyone concerned, in the long running case of ML & AR v RW & SW [2011] EWHC 2455 (Fam), where I acted for the fathers of two children, arguing that their mothers were exhibiting alienating behaviours. One of the (many) judges in one of the (very many) hearings remarked on it – to a full court, where everyone present was trying to do what they felt very deeply was the right thing for those children. It was a deeply, deeply sad case.
This guidance has the potential to transform how courts address allegations of alienation, fostering a more just and child-centred approach in family proceedings and, for that reason, is essential reading. For children, parents, and practitioners alike, its impact could be profound and have far-reaching benefits. I think that we can only wait and see if this happens, but I truly hope it does. Had it been in place at the time ML and AR was litigating, I think it may have.
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