Guidance for the courts on dealing with parental alienation allegations

In England and Wales, when the family court decides who a child should live or spend time with following divorce, there is a presumption that the involvement of both parents in the child’s life will further the child’s welfare. This is known as the statutory presumption of parental involvement. 

The divisive concept of parental alienation is the antithesis of this presumption. The term ‘parental alienation’ is used by the Children and Family Court Advisory and Support Service (Cafcass) to describe circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviours of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent. 

Parental alienation has been a contentious topic in the family law world for many years, with much debate about its validity as a concept and its application within the family court. The term gained traction in 2023 following the decision in Re C (Parental Alienation: instruction of expert) [2023], in which a mother had her children removed from her primary care and their father was given the responsibility for their care on grounds of parental alienation and she was unsuccessful in appealing the decision.

Following this judgment, the issue of parental alienation was brought into the mainstream public consciousness, sparking much debate and controversy. A notable increase in alienation accusations being raised in children matters followed. The concern within the family law field was that this undefined concept of parental alienation could, in the absence of guidance for the courts, put children at risk of being removed from their resident parent, who may, in some cases, be protecting a child from an abusive parent. Could allegations of alienating behaviour be used to silence domestic abuse survivors, with children being forced to have contact with abusive parents due to a finding of alienation? In short, were claims of parental alienation a handy tool for abusers? Given that 50 to 60% of private law children cases contain allegations of abuse, this was a genuine concern. 

Against this background and with an increasing number of allegations being raised, the Family Justice Counsel (FJC) felt compelled to examine parental alienation. It has released guidance that draws together best practices and the law as it currently stands. The new guidance should assist the court in navigating the existing system, keeping at the forefront the welfare of a child where allegations of parental alienation are made. It should also provide greater consistency in the approach towards such cases. Hopefully, this will improve welfare decisions, outcomes and the protection of children and families. 

Sir Andrew McFarlane, the President of the Family Division and Chair of the FJC, acknowledges in his foreword to the guidance that ‘the issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate. This guidance note reflects the complexity and challenges of this area of family law. It has been long awaited.”

Guidance – an overview

What is alienation?

The FJC defines alienating behaviours as ‘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’.

It further recognises that ‘parental alienation syndrome’ has ‘no evidential basis’ and is considered a ‘harmful pseudo-science’. 

What is the test to ascertain if alienation has taken place?

There are warnings throughout the guidance that it has not been provided to add legitimacy to the concept of parental alienation. Practitioners should be wary of the increasing use of terms such as ‘parental alienation syndrome’ or ‘alienating behaviours’. These terms add misplaced legitimacy to explain a child’s reluctance, resistance or refusal to spend time with a parent. This does not seek to diminish the harm that can be caused to children where alienating behaviours are present, but merely seeks to express caution.

The guidance sets out three necessary elements a court must be satisfied have been established to make a finding of parental alienation: 

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.

Application and case management

The court should actively manage parental alienation accusations at each stage of the process, starting from the first hearing, when allegations should be identified, understood and assessed. The central focus of this case management should be the child, emphasising that the court must put children at the heart of cases concerning them. 

Ultimately, the parent alleging alienating behaviour ‘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’. To determine this finding, a court must, at each stage of the process, consider the three-part test above, looking at the following: 

1. Is there evidence that the child is reluctant, resistant or refusing to engage with a parent? This is an evidentiary question. The court should look at what contact is happening and how the child is responding to this contact. The input of Cafcass or a social worker may be required to determine the children’s views and inform about the factual issues of the case.
2. Is the child’s reluctance, resistance or refusal consequent on the actions of the parent raising the allegations towards the child or the other parent? The court must look at the circumstances of both parents, considering whether, for example, abusive behaviours justify a parent’s protective behaviours.
3. Has one parent engaged in psychological manipulation that has directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with the other parent? In order to establish this third and final limb, evidence will need to be provided that there is manipulation by one parent of the child. The court should explore this thoroughly, and there must be a nexus between the child’s and parent’s behaviour. 

The court must apply this test in all cases where allegations of parental alienation are made. However, it is thought that findings will be relatively rare. A fact-finding hearing will only take place if proportionate and necessary, and allegations of alienation and abuse can be heard at the same time. The guidance specifically addresses various situations where parental alienation findings may not be appropriate or behaviours do not amount to alienation. Broadly, these are: 

1. Parental alienation will not be appropriate in cases where there are findings of domestic abuse that have caused protective behaviours by one parent or appropriate justified rejection by a child;
2. There is a difference between alienation and appropriate justified rejection or attachment, affinity and alignment by a child. The court must be mindful of children’s relationships with their parents and the conclusions they may come to on their own. This can occur without any parental behaviours aimed at alienation and may be an appropriate response by a child because of harmful parenting, including neglect or exposure to abuse;
3. Protective behaviours, where a child is shielded from harm, cannot amount to alienating behaviour. There should be sufficient training and awareness within the judicial system to recognise the difference between a parent exhibiting protective behaviour and alienating behaviour;
4. A child’s reluctance, resistance or refusal may remain unexplained, and the lack of an obvious cause does not in itself evidence manipulation by one parent. Children may have other reasons or motivations, such as their feelings about a new adult relationship or unhappiness about the practical arrangements in place. The guidance states: ‘The court must remain alive to the distinction between a parent who is opposed to contact, and a child who is opposed to contact; and between a parent who is engaging in alienating behaviours and a child who has an affinity, or has aligned themselves, with a parent or sibling, or are demonstrating an attachment strategy’.

What happens after a finding of parental alienation?

Where a finding of parental alienation has been made, intervention will need to be managed carefully. Rectifying the impact of alienation should be at a child-safe pace, with welfare being the paramount consideration. There may not be an automatic trigger for a change in the child’s placement, albeit the goal is to resume contact with the alienated parent. There will need to be a full exploration of the available interventions, the timings of implementation and the impact of these on the child. 

A few steps a court can take to assist with how to proceed are: 

1. Witness statements being produced by both parents to ascertain their level of engagement/capacity to change their behaviours or, indeed, whether manipulation will continue;
2. A guardian being appointed to join the proceedings on behalf of the child. Establishing the child’s wishes and feelings may indicate the viability of reparative work. If the courts determine that removal from one parent is the correct course of action, a guardian can make referrals to the local authority and consider the risk to the child of a change in placement;
3. Cafcass may be engaged to establish ways to re-establish contact (such as third-party intervention) and support the families;
4. Expert assessments of the family, albeit this should be approached with care. Experts should only be involved once a finding has been made and not within the evidential analysis undertaken by the court. Their assistance should be limited to welfare when harmful behaviours have been identified, encompassing the role of therapeutic support for the family. This is in line with Re C, where Sir Andrew McFarlane accepted the argument set out in the Association of Clinical Psychologists (ACP) skeleton argument, which said: ‘Much like an allegation of domestic abuse, the decision about whether or not a parent has alienated a child is a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as “alienating behaviours”. It is, fundamentally, a question of fact’. Assessment of children should focus on the harm caused to the child (psychological or otherwise), including their ‘cognitive, educational, emotional, social, and behavioural development, and comment on any matters of concern’. Assessments of adults should comment on a parent’s ability to prioritise their children’s needs, focusing on a ‘parent’s psychological functioning, including childhood experiences/developmental concerns, their intellectual functioning, past and present relationships, the impact of any drug and/or alcohol misuse, mental health or personality difficulties on their parenting capacity’.
5. The welfare checklist. The guidance sets out a non-exhaustive welfare checklist of questions and circumstances that should be considered, which is useful for any practitioner dealing with alienating behaviour. These include: the wishes and feelings of the child; the child’s physical, emotional and educational needs; the likely effect on the child of any change in their circumstances (considering other family members, such as siblings); any harm the child has suffered or is at risk of suffering; how capable each parent (and any other person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs; and the range of powers available to the court in the proceedings in question (including the child’s placement and contingency planning).

The main emphasis of this guidance is that any intervention must have the child’s welfare at its heart and must be a holistic welfare consideration. It is essential to avoid the intervention causing harm. Therefore, any proposed psychological/psychotherapeutic intervention should be considered in the context of the welfare checklist, ensuring it is tailored, recommended by qualified psychologists with the requisite training and aligned to the full factual matrix of the case. 

Guidance – looking forward 

The guidance is long awaited and provides much-needed clarity on how the court and practitioners should deal with allegations of parental alienation. Going forward, it will not only assist in reaching consistent judgments, but will hopefully lead to a reduction in the number of defensive parental alienation allegations, as it is vital that the guidance removes the risk that parental alienation is a concept from which an abuser can benefit. 

Bringing the guidance in line with the court’s general approach to all children matters (namely, that the child’s welfare is the paramount consideration) can only be a positive step in managing parental alienation allegations correctly, fairly and with as little harm to the children as possible.