Response to FJC Consultation on Alienating Behaviour

The Family Court Reform Coalition is an informal association of individuals and groups working towards improving Family Court processes, to minimise harm to children arising from separation and associated litigation, thereby providing better outcomes for children and their parents and lower overall costs to parents and taxpayers.
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A.     Executive Summary

We commend the valiant effort of the Family Justice Council (FJC) to reconcile two hotly contended positions concerning Parental Alienation (PA). However, the two positions are not equally valid, and the FJC cannot rely on (a misreading of) an obiter remark in a High Court case, albeit from the President, to overturn law established at the Court of Appeal. We propose a ‘two-stream approach’ to resolve the quandary.

The definition of PA that has been accepted at the Court of Appeal in Re S[1], and to which the FJC is bound, is:

The unjustified resistance or hostility from a child towards one parent as a result of psychological manipulation by the other parent; the manipulation need not be malicious or even deliberate – it is the process that matters, not the motive.

Therefore PA is first-and-foremost an affect of the child. To fail to act in response to a child whose presentation is consistent with abuse victimization, because the conduct of abuse is not otherwise evidenced, is to repeat the child safeguarding failures of Haringey Council in the ‘Baby P’ affair.

The President’s urgence in Re C[2] that “the identification of ‘alienating behaviour’ should be the court’s focus” is not an instruction to ignore all other considerations; ‘focus’ does not mean ‘tunnel vision’.

The 3-part test proposed by the FJC is unfortunately inappropriate:

  • It would prevent the Family Court from considering some real domestic and child abuse issues, by requiring both specific ‘alienating behaviours’ and actual alienation to be proved, whereas no other domestic abuse fact-finding or child abuse intervention works this way;
  • It requires, in both parts ‘b’ and ‘c’, the court to make exactly the kind of psychological diagnoses of the child to establish facts that were critiqued by the President in Re C, but even worse: with no expertise or even contact with the child;
  • It seems to have no technical scientific or empirical justification, nor case-law precedent, and is arbitrary in nature;
  • It is functionally a new invented law that limits access to justice, and is therefore ultra vires;
  • It violates the ‘paramountcy principle’ in s.1(1) of the Children Act 1989, and the positive obligation for “exceptional diligence” established by ECtHR and Court of Appeal pursuant to Article 8 of the Human Rights Act 1998 (as informed by Articles 7-9 of the UN Convention on the Rights of the Child).

We recommend instead a ‘two-stream approach’, in which a Family Court ought to first identify the minority of cases where the child is already demonstrating actual contact refusal / reluctance (what seems to be ‘an Alienated Child’), and stream such cases into receiving early intervention:

  • the support commensurate with other children presenting with signs of child abuse; and
  • the psychological expertise required to safely understand what is driving the child’s contact refusal / reluctance and, if possible and appropriate, treat a complex and harmful psychological dysfunction of a child’s attachment system.

Otherwise, ‘Alienating Behaviours’ are acts carrying a RISK of harm, that a Family Court can deal with at Tier 1 as a simple determination of observable facts. However, because the acts are committed directly against the child, there’s no need to link them to a child’s behaviour. It is properly consistent with the decision of the Court of Appeal in Re S for a Family Court to act against Alienating Behaviours before the child presents as affected:

“…it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken.”[3]

The two-stream approach is the best means by which to fulfil the President’s urgence in Re C, whilst conforming with the binding precedent of the Court of Appeal in Re S (and elsewhere, including ECtHR) and the child-safeguarding lessons of ‘Baby P’.

By appropriately streaming an Alienated Child to receive the care they deserve, a Family Court can focus its own efforts on “the identification of ‘alienating behaviour’”[4] in other cases, before those behaviours also amount to “serious, worse still irreparable, harm”[5].

It seems that the FJC’s Working Group is not properly focused on the welfare of the child, but rather is currently preoccupied with determining the adult conflict, not merely to the detriment of the child’s best interests, but in conflict with established principles of child safeguarding. Regardless of cause, a child’s alienation from their parent represents an attachment dysfunction: the paramount consideration of the Family Court ought to always be the child’s welfare. If the child is presenting with signs of psychological or emotional harm, it is unconscionable that those harms should be ignored for want of external evidence of fault.

The FJC should be mindful of common erroneous presuppositions (“Parental Alienation myths”) that:

  • Alienating Behaviours are not harmful unless or until they have become effective (ie that there must be a ‘diagnosis’) – the very process of alienation is the conduct of harm and abuse on the child (Re S: “it is the process that matters”);
  • Alienating Behaviours must be deliberate, or that only one parent does them;
  • The only adverse outcome for children of exposure to Alienating Behaviours is contact refusal;
  • Alienating Behaviours cannot co-exist with other forms of abuse by either or both parents; or that
  • Victims of domestic abuse are ‘allowed’ to psychologically abuse their child.

Headline Recommendations

  1. The 3-part test ought to be abandoned, and instead the Guidance ought to make a triaging determination of fact, similar to ‘part a’ of the FJC’s test, to differentiate between cases concerning “Alienating Behaviours” by an adult and the presentation of “an Alienated Child”:
  2. “Alienating Behaviours” are acts of domestic and child abuse by adults, which ought to be stopped immediately as they pose RISK of serious harm (not unlike a parent committing acts of domestic abuse), and
  3. “an Alienated Child”, is an ACTUAL presentation of a child with a psychologically disordered parental attachment, a symptom and source of serious harm for the child that, regardless of cause, ought to be expertly assessed and ameliorated quickly to the extent it is safe to do so, in the interests of the child’s welfare  (not unlike a child presenting with signs of child abuse such as neglect).

Thereafter, the different circumstances can follow separate litigation streams:

  • ‘Alienating Behaviour’ is a question of fact that can be determined at Tier 1 with no external expertise usually required and no requirement for the children to be examined;
  • An ‘Alienated Child’ is a present welfare issue and must be elevated to Tier 2, with a Guardian ad Litem appointed and experts involved early to assess the harms presented.

Figure 1: Proposed ‘Parental Alienation’ Family Court Litigation Streams

  • The Guidance should focus on first alleviating harm to the child during proceedings:
    • The Guidance should require the issue of early guidance to both parents upon receipt of an application for Children’s proceedings, to notify each of them of the harms to the child from Alienating Behaviours and encourage them to avoid specified common alienating behaviours (in particular the inappropriate sharing of information about proceedings with a child, which is already prohibited by provisions restricting communication of information in Children’s proceedings);
    • Where alienation is already or becomes apparent (an ‘alienated child’, with present ‘alignment or attachment issues’), regardless of cause, this is a child welfare issue; the Guidance should mandate psychological assessment and a Guardian ad Litem ought to be appointed as a matter of course to assist the court to determine the child’s authentic wishes and feelings and to control or monitor assessments and interventions;
    • The Guidance should ensure that alienation does not arise during the course of proceedings, by guiding courts to provide maximal interim contact within the parameters of ensuring child safety, whether or not any AB is alleged or alienation observed;
    • The Guidance should ensure robust and timely enforcement of orders for contact and interim contact, encouraging monitoring of parents’ compliance with orders during proceedings and the use of punitive measures where orders are contravened without good cause, just as it ought to act promptly and decisively to stop the continuation of any other form of domestic abuse.
  • The Guidance ought to explicitly recognize that children who are alienated from a good-enough parent are at high risk of significant psychological and emotional harm from that alienation;
  • Wherever alienating behaviours are evidenced, as with other forms of domestic abuse, the Court has a positive duty to the child to intervene and stop those behaviours continuing, whether or not they have yet had the effect of turning a child against the Targeted Parent;
  • The Guidance should make clear that Alienating Behaviours may be intentional or inadvertent, but that there is harm done to the child regardless;
  • The non-exhaustive list of common Alienating Behaviours in the Guidance ought to be more comprehensive in both range and depth, with case-study examples provided to assist recognition;
  • The Guidance must be clear that “in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available”[6] – this must include sanctions against a parent who continues to flaunt court orders for contact, and the potential remedy of a change in the child’s primary residence to the parent more willing to protect the child’s rights to relationships with both parents and extended family;
  • The Guidance ought to require Family Courts to automatically carve-out enforcement applications for contact withdrawal from S.91(14) orders, or otherwise be directed to determine “chance of success” in permission hearings as the probability of reinstating withheld contact, rather than the probability that the breaching parent will be sanctioned;
  • Where enforcement procedures of existing orders have been initiated, the Guidance ought to recommend interim methods to streamline reinstatement of contact, particularly the use of without-hearing interim orders including for police power of arrest (especially where violating parents have not themselves filed any application to vary the order);
  • In matters of cross-allegations of abuse and alienation, the Guidance should take a balanced view that not only might false allegations of alienation be used to counter genuine allegations of abuse, but false allegations of abuse (including allegations of neglect) may be made in furtherance of alienation, and its also possible that both abuse by one parent and alienation by the other, or both by both, occur in situations of bi-directional domestic abuse (which accounts for about 70% of domestic abuse cases[7]);
  • In any case where an allegation of abuse has caused the disruption to the child’s relationship with the accused parent, and is then determined as unproven by the Court, the Court must then go further to opine on whether the allegation itself was an Alienating Behaviour and, as such, an act of post-separation domestic abuse and child abuse;
  • The Guidance ought to nominate a variety of measures for intervention, particularly for early intervention where a child has become, or is at high risk of becoming alienated;
  • Whilst the use of separate child expert psychologists for assessment and treatment is a sensible arrangement to protect the integrity of the court’s decisions in most cases, where a public provision can or is already being made, such as via CAMHS/NHS or a local authority provision,  child psychological experts ought to be able to perform a dual role of assessment and therapeutic intervention (a “professional witness”[8]) to minimise the number of different professionals that interact with the children (a significant source of stress for them) and to provide them with continuity;
  • The Guidance should not refer to “resident parent” or “non-resident parent” in place of (alleged) ‘alienating’ or ‘targeted parent’, as this is likely to create bias and/or lead to the court into error;
  • The Guidance should include guidance about the admissibility of a parent’s recordings of children, since the FJC is effectively requiring such evidence;
  • The Guidance ought to avoid assertions of a child-development psychological nature that may not be supported by empirical scientific evidence, and whereas the draft Guidance has no technical references at all, the Guidance should draw extensively from the substantial body of scientific work associated with parental alienation, children’s parental attachments and attachment disorders;
  • The Family Justice Working Group for this Guidance ought to be reconfigured to increase membership of child development psychological experts, to include a greater diversity of viewpoints on parenthood and parenting, attachment research and to avoid harmful ‘group think’.

We are concerned that no data appears to be available to assist the FJC in regards to the actual welfare outcomes of children who have hitherto undergone changes in primary residence or other interventions aimed at alleviating alignment or attachment issues.

The draft Guidance appears to be heavily biased towards minimizing this form of domestic and child abuse, seeming to bypass or undermine long-established precedent, and seemingly careless of children’s welfare.

[1] Paraphrased from Re S [2020] EWCA Civ 568 (29 April 2020) at [8], affirming and extending the Cafcass definition at https://researchbriefings.files.parliament.uk/documents/CBP-8763/CBP-8763.pdf

[2] Re C, (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) at [103]

[3] Re S, Ibid

[4] Re C, Ibid

[5] Re S, Ibid

[6] Re S (Parental Alienation: Cult), [2020] EWCA Civ 568 (29 April 2020) at [13]

[7] Babcock, J.C., Snead, A.L., Bennett, V.E. and Armenti, N.A., 2019. Distinguishing subtypes of mutual violence in the context of self-defense: Classifying types of partner violent couples using a modified Conflict Tactics Scale. Journal of family violence, 34(7), pp.687-696

[8] See British Psychological Society Guidance on Expert Witnesses: for where the appointed expert provides a dual role of expert witness and practitioner (witness of fact).

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