The Family Justice Council (FJC) has published guidance for Family Court judges and those working in the Family Justice System, on responding to allegations of alienating behaviour.
The guidance is snappily entitled ‘Guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour’ and the accompanying press release tells us that it follows ‘one of the largest consultations in the FJC’s history, with nearly 100 responses from individuals and stakeholders’.
As set out in the press release, in summary, the guidance:
- debunks myths that there is a diagnosable ‘syndrome’ of parental alienation and provides a helpful guide of important steps to follow where a child is reluctant, resistant, or refusing to see a parent.
- is a reminder that decisions of fact relating both to allegations of alienating behaviour or domestic abuse are a judicial function.
- tackles the difficult issue of allegations of alienating behaviour being made alongside allegations of domestic abuse, the impact on survivors and the importance of unpicking the complex interplay between these issues.
- centralises the voice of the child, putting children back at the heart of cases concerning them.
The President of the Family Division of England and Wales, and Chair of the Family Justice Council, Sir Andrew McFarlane, provides a foreword to the report making clear it has his endorsement. He writes:
“The issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate. The guidance note reflects the complexity and challenges of this area of family law. It has been long awaited.
“I approved this workstream for the Family Justice Council knowing how divisive this topic has become. In my view this guidance is required to ensure greater consistency of approach across the courts and to improve outcomes for children and families and to protect children and victims from litigation abuse. It has my endorsement and I encourage everyone working within the family justice system to read it carefully.”
You can download the guidance here when it’s published today. BBC story here – New guidance on ‘parental alienation in family court battles’.
Comment
This guidance has taken a long time to produce, but ‘parental alienation’ or ‘alienating behaviour’ is a difficult and contentious topic so this is not surprising. No doubt that is why so many responses were received – the organisations that contributed are listed at the end of the guidance. It is clear that those responses were thoroughly considered because there are some material changes to the draft that went out for consultation, and the final product seems much more coherent and strong in its messaging.
It is now clear that allegations of ‘alienating behaviour’ must be properly based in evidence, and that not all rejection of a parent by a child is the product of manipulative behaviour. There are clear statements in the guidance that the court needs to distinguish between the different reasons behind a child’s reluctance to see a parent, and give proper consideration to the possibility that a child has simply formed their own views, or that a parent accused of ‘alienation’ is trying to act protectively, or the rejections is a traumatic response by a parent or child who has been the victim of abuse. These reactions are not to be termed ‘alienating behaviour’ – this approach is important when we think about cases involving findings of domestic abuse where a victim parent is subsequently simply expected to dust themselves off and behave as if nothing has happened and to support contact come what may – and regardless of the child’s response.
Undoubtedly the rigorous approach mandated by this guidance will make it harder to pursue allegations of alienating behaviour, as there is now a need for specific evidence of manipulation other than inference from the child’s behaviour. Additionally, the guidance will empower courts to knock allegations on the head, early on, via a triage process.
The guidance also re-emphasises the established (but not consistently followed) position that decisions about whether alienating behaviour is present are decisions of fact to be made by judges, not experts. It also makes absolutely clear that where experts are involved post-findings, those experts should be regulated clinical or counselling psychologists with no financial interest in the treatments they recommend. Although the Family Procedure Rule Committee are (we understand) still considering a rule change relating to unregulated experts more widely, this will, we think, effectively rule out continuing practice of instructing unregulated psychological or other unregulated expert witnesses to ‘diagnose’ or ‘find’ alienation and to recommend treatments or interventions that they will provide.
There is a lot in this guidance for judges and lawyers to read and process, and it will no doubt take a little time to consistently embed into practice.
Other news
Also of interest in the press release is a little update on other ‘Upcoming FJC publications’. It reads as follows:
The FJC covers a broad range of topics and has been working hard to produce guidance on other key areas where needs have been identified within the Family Justice System. The FJC will be publishing the following pieces of guidance on its website over the next few months:
- Neurodiversity in the Family Justice System, guidance for practitioners.
- Covert Recordings in Family Law Proceedings Concerning Children: Family Justice Council Guidance.
- Updated Family Justice Council Guidance on “Financial Needs” on Divorce (Third edition).
- Family Justice Council Guidance on Procedures for Applications for Medical Treatment Orders in Relation to Children, and an Information sheet for families.
Some of these we knew about (and have been waiting for more or less patiently e.g. covert recordings) – and some of them are new to us. Watch this space.
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