The Family Justice Council has published its long-awaited guidance on parental alienation, which serves to assist the court and professionals working within the Family Justice System in managing cases where allegations of ‘parental alienation’ or ‘alienating behaviours’ have been made.
In this briefing, associate Mae Al-Omari examines its key components and explains the benefit of having greater clarity in these cases.
Three elements to be satisfied
In Re C (Parental Alienation; Instruction of Expert) [2023] the court determined that ‘parental alienation’ is not a syndrome that is capable of being diagnosed, but rather a process of manipulation of children perpetrated by one parent against the other through alienating behaviours. The new guidance states that a court would need to be satisfied that three elements are established before it can determine that alienation or alienating behaviours have occurred. These are:
- the child is reluctant, resisting or refusing to engage in a relationship with a parent or carer; and
- 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
- 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.
'For the court alone to decide'
What has been made absolutely clear in the guidance is that it would not be appropriate for any expert to determine whether alienation has taken place. This is for the court alone to decide. It may be that the court lists a fact-finding hearing in order to determine the issue, but a fact-finding hearing should only be listed in cases where it is relevant to the ultimate issues of the case and where it is both necessary and proportionate.
If the court makes findings of alienation or alienating behaviours, it can then consider whether any other evidence is needed, such a family psychological assessment to look at the family dynamics, the parents’ capacity to change, and what can be done to move forward in light of the findings of alienation.
The guidance sets out some key pointers on the use of expert witnesses in these types of cases. For example, the court should be cautious about instructing any experts with a financial interest in the delivery of any recommended treatment or support. Another pointer is that the expert instructed should not be an academic psychologist or psychological researcher working in the field of alienation, but instead should ideally be an HCPC regulated psychologist with competence in assessing adults and children.
Key takeaways
The new guidance is helpful as it provides more clarity on exactly how these cases should be managed. The issue of parental alienation is a polarising one, and it is hoped that this guidance will lead to there being more consistency in the approach taken by the family courts. The guidance can be read in full here.
Our specialist children law team have extensive experience in advising parents in cases where there have been allegations of parental alienation. We recognise the complexity of these cases and are happy to help with any queries.
Mae Al-Omari is an associate in the family and children team. She advises on a range of both private and public law children matters, representing parents, children and other family members. She is also accredited to the Law Society’s Children Panel.
Get in touch
If you would like to speak with a member of the team you can contact our family and children solicitors by email, by telephone on +44 (0)20 3826 7520 or complete our enquiry form.
