Unpicking the New Family Justice Council Guidance on Allegations of Alienating Behaviour
There are often some misconceptions held about the Family Courts in England and Wales by those who aren’t familiar or don’t practice within the Family Court. The first is that the Family Court is a “secret Court” and hidden from public scrutiny. The reality is that whilst Family Court cases are heard in private, this is to safeguard the interests and privacy of the persons concerned. The Transparency Project, which was first piloted in Leeds, Carlisle, and Cardiff, is seeking to enable a greater insight to the Family Courts whilst striking a balance for the need to maintain the privacy of those whose cases come before the Court.
The second misconception and the focus of this article is that there is a diagnosable “syndrome” of parental alienation and that this is not properly addressed by the Family Court or its judges. Parental alienation is a theorised process whereby a child or children become estranged from a parent as a result of psychological manipulation of the other parent. It sometimes arises as an issue in cases where there is a dispute as to where a child should live and/or how much contact a parent should have with a child where the child or children are reluctant or unwilling to spend time with that parent.
The issue of ‘parental alienation’ was addressed by Sir Andrew MacFarlane in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) where he stated that:
“Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
Earlier this month following a detailed consultation, the Family Justice Council published guidance for the Family Court judiciary and those working within the Family Courts on how to deal with allegations of alienating behaviour titled “Family Justice Council Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour”. Sir Andrew in his foreword to the guidance commented that “the issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate”.
In summary, the guidance:
States there is no diagnosable ‘syndrome’ of parental alienation as noted in the aforementioned Re C and provides practitioners and judges with a guidance of steps to follow where a child or children are reluctant, resistant, or refusing to see one of their parents;
reiterates that the decisions of any finding of facts in respect of allegations of domestic abuse or alienating behaviour is a role for the judiciary only;
addresses the difficulties where allegations of alienating behaviour are made alongside allegations of domestic abuse, the impact on victims of domestic abuse, and the importance of carefully unpicking the complex interplay between the two issues; and,
puts children back at the heart of the cases concerning them and centralises the voice of the child.
In addition to the above, the guidance also sets out useful practical guidance in respect of effective case management leading up to and throughout any finding of fact hearings. Similarly, the use of any Part 25 expert evidence is also addressed.
For those practicing with the area of private family law, this guidance is both “long awaited” as described by Sir Andrew, but also extremely invaluable in dealing with an issue which often appears in cases where the issue of alienating behaviour and domestic abuse are raised as cross-allegations.
A copy of the Family Justice Council’s guidance can be accessed here.
Written by Consultant Barrister, Adam Singh Hayer.
Law is correct as of 19th December 2024. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
