Children Law: The changing landscape of cases involving alienating behaviour

What is alienating behaviour?

You may be familiar with the term “parental alienation” which was often used to describe the situation where one parent caused a child to reject the other parent, without justification. The terminology has recently been updated to “alienating behaviour”.

Cafcass (the Children and Family Court Advisory Service) describes alienating behaviour as an “ongoing pattern of negative attitudes and communication about the other parent or carer that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer” which causes the child to align themselves strongly with one parent. Alienating behaviour therefore often leads to a breakdown in the relationship and estrangement between the child and the alienated parent. This can manifest as fear, disrespect, or hostility toward the other parent, and can sometimes extend to other relatives. Reasons for this behaviour can be wide ranging but the issue arises where the child takes on the view of the parent they are living with, rather than basing their view on their own “lived experiences”. This might be caused by the “preferred” parent exhibiting low level alienating behaviour against the other parent, such as demeaning them in front of the child, or extreme alienating behaviour, such as making false allegations against the other parent and exposing the child to those.

The approach of the court and the role of experts

These issues can take a long time to resolve and the path of each case is different depending on the experts and the individuals involved (as well as on the ages of the child/ren). In the past, the courts have been slow to act which often led to the alienated parent giving up, however this is changing. In Re C (“parental alienation”; instruction of expert) [2023] EWHC 345 (Fam), Sir Andrew McFarlane P, the President of the Family Division noted that “the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied”. It is important to act quickly if you are concerned about alienating behaviours to avoid the child’s views becoming entrenched and irreversible damage to the parent/child relationship being done.

The court has a wide range of powers including (i) appointing an expert to work with the family; (ii) appointing a guardian to represent the child and their best interests in proceedings; (iii) involving Cafcass; or (iv) ordering that the parties give evidence themselves to the court. There are a number of specialist experts in this field who can speak to the parents and child/ren to identify the issues and make recommendations to the court. It is important to note however that the decision of whether a parent has alienated a child is a question of fact for the court to resolve and not a diagnosis that can or should be offered by a psychologist (Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150). There have been some concerns about the lack of regulation in this field and it is therefore important that the right expert for each case is instructed.

Fact finding hearings

In these cases, there will often be allegations of domestic abuse on one side and alienating behaviours on the other. It is therefore essential that the court has a factual matrix on which to base decisions. Robust case management will be required by the court and that often means there needs to be an early fact-finding hearing. This involves both parties setting out their respective allegations in a schedule (referred to as a Scott Schedule). It is for the parent making the allegations to show (with evidence) that on the balance of probabilities they happened. The court will pay close attention to patterns of behaviour. If a parent is concerned about a pattern of behaviour in the child, or the other parent, a lawyer will advise keeping detailed notes as they may be very useful as evidence.

Potential outcomes

The court must differentiate between the views of the child and those of the potentially alienating parent. If the court finds that one parent has behaved in such a way as to alienate a child from the other parent and is not able or willing to make changes to their behaviour, they can make orders that stringently regulate the relationship between the parent and the child. In the most extreme cases, the court can order that the child’s residence is transferred to the other parent either temporarily or for the longer term/permanently. The court must look at the risk of harm to the child by separating them from the resident parent vs remaining with them. In making this decision, the court will balance the risk of short-term harm and distress against what is in their best interests in the longer term. This is a delicate exercise with serious repercussions.

Children’s welfare when parents are separating is also on the government’s agenda, with details recently published on 26 January 2024 considering reform in the family court to help families agree child arrangements quickly and encouraging mediation as early as possible to avoid court disputes where possible. The government noted that “long-term conflict between separating parents can have a devastating impact on children’s wellbeing.”

These sorts of cases are inherently complex and emotive, and it is important to take specialist advice at an early stage to avoid the situation becoming intractable. Please get in contact with Hannah Petherick on [email protected].

This article was written by Hannah Petherick and India Jenkins.