ALIENATING BEHAVIOURS V DOMESTIC ABUSE
The term Parental Alienation is terminology many family lawyers are used to. Recent guidance published by the Family Justice Council asserts that this should now be referred to as alienating behaviours. CAFCASS defines alienating behaviour as ‘’the unjustified resistance or hostility from a child towards one parent as a result of psychological manipulation by the other parent’’. Following the recent judicial guidance on the issue of alienating behaviours, there has been much debate in the world of family law about the weight placed on alienation allegations and whether more weight should be placed on domestic abuse allegations. The Family Justice Council stated within their guidance that although the courts are asked to consider and act upon an allegation of alienating behaviours there is a concern that the use of such a term accords misplaced legitimacy.
In Re C (‘Parental Alienation’: Instruction of Expert) [2023] EWHC 345 (Fam), it was set out that for the court to make findings of fact in relation to alienating behaviours, three elements need to be established:
1. The child is reluctant, resisting or refusing to engage in, a relationship with the parent or carer;
2. The reluctances, resistance of refusal is not consequence on the action of that parent towards the child or the other parent; and
3. The other parent has engaged in behaviour that has directly or indirectly impacted the child.
Sir Andrew McFarlane P, within this case, provided the following as a nonexhaustive list for alienating behaviours that may directly or indirectly impact a child:
• Repeatedly or constantly criticising or belittling the other parent;
• Unjustifiably limiting or restricting contact or undermining contact;
• Forbidding discussion about the other parent;
• Creating the impression that the other parent dislikes or does not love the child, or has harmed them or intends them harm; and
• Denying emotional responsiveness to the other parent or spurning, terrorising, isolating, corrupting, or exploiting them.
However, it is the wording at point 2 above, ‘’on the action of that parent towards … the other parent’’, that causes certain difficulties in the context of domestic abuse allegations. Over half of all private law cases involving children include allegations of domestic abuse1 , but often, where one parent makes a domestic abuse allegation, the other parent will counter that with an alienating behaviours allegation. The difficulty is that the domestic abuse allegation may have been made as a form of alienation, and/or the alienating behaviours allegation may have been made for domestic abuse to continue. A BBC investigation highlighted the latter showing how contact can be promoted in fear of alienating behaviours allegations with a failure to consider the aspect of abuse perpetrated by one parent. There are cases where the parent has used the threat of or made an alienating behaviours allegation to manipulate contact, exercise control and continue abusing the other parent, and in some circumstances the child.
The parent alleging alienating behaviours has the burden of proving that the behaviour has occurred. They do so in the standard way within family proceedings, by setting out their allegations clearly and providing evidence in support. The published guidance has assisted on the point if evidence, confirming that the behaviour of a child cannot be used as evidence of the adult’s behaviour. It is a complex issue within Family Law proceedings, and it may be argued that expert assessment is required. The President within Re C, as cited above, provided commentary that the court should caution itself against appointing experts to assess a family where the expert has a financial interest in the delivery of subsequent services. The recently published guidance suggests that it is inappropriate for an expert to determine whether alienating behaviours have taken place and that it is for the court to decide. The idea being that an expert, such as a psychologist, would be used for advice on how it should be dealt with if proven.
The published guidance has suggested that ‘’allegations of domestic abuse and alienating behaviours cannot be equated’’, given that domestic abuse is a crime. In December 2022, the United Nations said that they would be examining how Family Courts around the world dealt with an increase in alienating behaviour cases when used to counter domestic abuse claims. It is suggested that alienating behaviours will not be found in cases where findings of domestic abuse are made which have then resulted in a child’s appropriate justified rejection or protective behaviours / traumatic response on the part of the victim parent.
Many practitioners and charities are praising the guidance, hoping it will deter the misuse of alienation claims to silence domestic abuse victims. The judiciary also have to handle these complex issues, which if not dealt with properly (and as soon as possible) by the right level of tribunal, can result in significant delay and increase in costs for clients. This has led to a call to ensure that family practitioners receive training in this particular area so they are equipped to deal with the nuances of these issues effectively.
I was recently involved in a case where, thankfully, the Judge dealt with a raft of potential allegations of alienating behaviours raised by mother. Prior to any fact-finding hearing, the father had made various admissions which assisted in narrowing the points that were in issue and avoiding a costly and stressful three day fact finding hearing. Of course, there are cases where serious allegations do need to be considered by the Court before determining the best outcome for the child(ren). However, it is hoped that the new guidance can be used as a starting point with particular consideration being given to whether the parent citing alienation may be manipulating the system to continue to exert control and abuse over the other parent and child.