‘Parental alienation’ is a term sometimes used in court proceedings between separated parents/carers where the arrangements for the children cannot be agreed. As domestic abuse allegations have risen, so have the, often, counter allegations of ‘parental alienation’. The basis of ‘parental alienation’ is that the child becomes estranged from one parent/carer as a direct result of the behaviour of the other parent/carer.
The family Justice council have, this month, released guidance for the courts and family law practitioners on how to deal with these types of allegations. The report was extremely critical of the concepts of parental alienation, saying they are ‘increasingly exploited within family litigation’. It goes on to say that the concept has ‘attracted international condemnation…and some countries have banned use of the term in family courts’. The report actually redefines these types of allegations as ‘reluctance, resistance and refusal’ (RRR) to see the other parent.
However, this does not prevent the allegations being raised, and so this publication is important in order to give the courts and practitioners clear guidance on how such allegations should be dealt with. The group acknowledge that where harm is found as a result of alienating behaviours, the consequences are far reaching not only for the child but also for the parent/carer dealing with the loss of the relationship with the child.
For alienating behaviour to be present, there needs to be a finding of 3 elements. The first is the presence of RRR (as defined above). Secondly that the RRR is not a consequence of actions by the parent against the child or the other parent. In other words, if parent A has been abusive towards the child or the other parent, and the child shows RRR, this does not fulfil the criteria required for this element. Thirdly, the other parent has engaged in behaviours (directly or indirectly) which have led to the RRR, that is the alienating behaviour. Therefore, it is clear that a child could show RRR in regard to the parent seeking to spend time with them with no domestic abuse, but this in itself is not enough for there to be an automatic assumption of alienating behaviour. There needs to be evidence of that taking place.
The report states that research suggests that alienating behaviours which ‘actually impact on the child’s relationship with the other parent are relatively rare’. It further confirms that RRR in and by itself is not evidence of alienating behaviours. It goes on to state that domestic abuse and ‘parental alienation’ are not equal, highlighting that domestic abuse by itself is a criminal offence, alienating behaviour is not. The report is quite clear in its guidance around this subject, and so practitioners need to be alive as to how to deal with such allegations as soon as they are raised both procedurally, what will be required evidentially, and be able to identify professionals who can assist the child and the family in dealing with any RRR demonstrated by the child/ren.
It is also now very clear that ‘parental alienation’ is not a ‘syndrome’ capable of being diagnosed. Therefore, the instruction of any experts to assist the court in determining arrangements for the children will quite possibly now be a rare occurrence and even then only after the court has made any determination over parental manipulation. It is highlighted in the report that it is for the court to make a determination around allegations of domestic abuse and/or parental manipulation. What everyone will welcome is the importance of the voice of the child within proceedings. Historically wishes and feelings reports have been commonplace, but there are potentially specific directions suggested around what a section 7 report (a report by CAFCASS) should consider around any RRR of the child.
It is important to note that the report does deal with guidance around what the court should do in the circumstances where parental manipulation has been found. However, it states that such a finding is ‘only one part of the factual matrix’. It is keen to point out that any such finding does not mean there should be an automatic change of the child’s living arrangements – it is important to note that this is the same approach as any findings over domestic abuse.
There are many alternatives to court proceedings (where appropriate), in relation to disputes over the care of children on separation and your family lawyer should discuss these with you. However, when matters do end up in court, they can be complex like the issues discussed above, and specialist legal advice is always preferable.
For more information or to arrange an appointment with a member of our Family Team, please contact us on 01206 764477. The team can offer advice at one of our offices in Colchester, Chelmsford, Frinton-on-Sea, Ipswich or Bury St Edmunds, or by telephone or video appointment. We offer a free exploratory call so that we can match your specific needs with the right person in our family team.
