Getting it right for children – How to navigate allegations of alienating behaviours

There is much debate and controversy around the complicated and nuanced concept of parental alienation. Whilst the family courts are clear that parental alienation is not a syndrome capable of diagnosis, there is an acknowledgment that there are cases where the court must determine whether one parent has engaged in behaviours that have led to a child's reluctance, resistance, or refusal to spend time with the other parent.

Cases involving allegations of parental alienation are challenging because they call into question whether the child's voice is really their own, making an important part of the puzzle potentially missing or at least ill-fitting. For those on the receiving end of an allegation of alienation, they are in the thorny position of having to prove a negative.

In December last year, the Family Justice Council published guidance on how to respond to allegations of alienation. The guidance provides clarity and insight into this difficult topic and should ensure a consistent approach so that those turning to the court for answers know what to expect.

The Guidance explains that the court must consider whether there are credible allegations of alienation and that the following 3 elements have been established:

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 to the other parent; 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.

The Guidance addresses the fact that alienation allegations are often made in the context of allegations of abuse. One parent alleges that the other is abusive and that it is not safe for the children to spend time with them, or that they do not wish to spend time with them because of what they have witnessed, and that parent counter alleges that there has been no abuse and that the other parent is alleging it so as to damage their relationship with the children.

The Guidance is clear that the court should be mindful of the following:

• Alienating behaviours are rare
• Alienating behaviours where they exist cause damage to children
• Alienating behaviours are not criminal and are not within the definition of abuse – allegations of domestic abuse and alienation cannot be equated
• A critical factor is establishing why children do not wish to spend time with the other parent. Jumping straight to alienation can do a disservice to children who would benefit from both parents working together to try to find out why the child feels as they do, rather than blaming each other
• In most cases the allegations of abuse and alienating behaviours can be heard at the same time. The court’s deliberations should begin with domestic abuse and review the alienating behaviours allegations through that prism
• Alienating behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s appropriate justified rejection, or in protective behaviours or a traumatic response on the part of the victim parent
• Care should be taken not to dismiss the voice of the child in the absence of compelling evidence to show that psychological manipulation has impacted on their capacity to freely express their wishes
• The mere fact of a child’s reluctance, resistance, or refusal to spend time with the other parent is not evidence of alienating behaviours simply because no other explanation can be found
• A finding of alienating behaviour is not an automatic trigger for changing which parent the child lives with. The court should examine very carefully all the welfare ramifications

The fundamental message of the Guidance is to try to better understand what is happening on the ground – looking at whether the children spend time with both parents or, if there is a refusal/resistance/reluctance, why are the children behaving that way. Sometimes children react to the separation by clinging to one parent as they want to secure that attachment in the face of uncertainty, and it would take both parents working together to reassure and repair rather than to panic and blame.

The real quandary for the courts is to know when it is appropriate to preserve and promote a relationship between parent and child, and when it is appropriate to protect a child from a potentially damaging relationship. The legislation is clear that there is a presumption (unless the contrary is shown) that it is in the child's best interest for both parents to be involved in their life. For the majority of cases that is a straightforward presumption – children benefit from a good relationship with both parents – but where there are concerns of abuse or a failure to promote that relationship for no reason then it is for the court to ask the right questions and find the answers to ensure that the child's best interests are met.