In the last few years, it has become increasingly common for parties in children proceedings to make allegations of “alienation” and “alienating behaviours” by the other parent. Alienating behaviours are sadly present in many cases and can have devastating effects on children and families, for example, in the recent case of Re T (A Child) [2024] EWHC 59 (Fam). Alienation is a form of abuse and such a finding can result in major changes to the child arrangements, the most significant being an order for a transfer of residence from one parent to the other, with limited or no contact with the parent engaging in alienating behaviours.
However, practitioners are frequently seeing “alienation” being used as a buzzword of sorts to support one party’s position in children proceedings, with little investigation into what the term actually means and whether it applies to the particular case. Moreover, it is of great concern that there are cases where perpetrators of domestic abuse make allegations of alienation in an attempt to deflect blame from their actions or reverse culpability; in some cases, this has the effect of perpetuating controlling behaviour and emotional abuse experienced during the relationship.
Sadly, such allegations often trigger lengthy and intractable children proceedings, resulting in the parties extinguishing any hope of a manageable co-parenting relationship and incurring significant legal costs that eat into the family finances.
What is “alienation”?
The term “alienation” is generally used to describe circumstances where the parent/child relationship is disrupted or a child is reacting negatively to one parent and that disruption/negativity is a result of the other parent’s behaviour or influence on the child. However, in family proceedings, there is in fact a three-stage test to establish that alienating behaviours are present.
The Family Justice Council published draft guidance on responding to allegations of alienating behaviour in August 2023[1] (“the FJC draft guidance”), which cites the observations of Sir Andrew McFarlane in the recent case of Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam). A court would need to be satisfied that the following three elements are established before concluding that alienating behaviours had occurred:
- the child is refusing, resisting, or reluctant to engage in, a relationship with a parent or carer;
- the refusal, resistance or reluctance is not consequent on the actions of the non-resident parent towards the child or the resident parent; and
- the resident parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s refusal, resistance, or reluctance to engage in a relationship with the other parent.
It is the parent alleging alienating behaviours that must discharge the burden of proof and therefore establish that such behaviour has occurred.
Stage 1 – the child is refusing, resisting, or reluctant to engage in, a relationship with a parent or carer
This first element is most prominently seen through a child’s reluctance or failure to attend contact with one parent, but can also be gauged upon considering the child’s behaviour towards that parent (usually the non-resident parent). For example, the child may express disapproval or hostility towards one parent, may lack positive feelings towards that parent, show resistance to feelings of guilt and exhibit extreme emotional reactions.
Stage 2 – the refusal, resistance or reluctance is not consequent on the actions of the non-resident parent towards the child or the resident parent
If a child is reluctant to spend time with or develop a relationship with one parent, it does not necessarily mean that the child has been exposed to alienating behaviours. The FJC draft guidance emphasises that the court should consider other reasons why a child might be behaving in this way and gives the following (non-exhaustive) list of examples:
- A new adult relationship;
- The fact of parental separation;
- Loyalty to the other parent;
- Rigid parenting;
- Abusive parenting; or
- Differing parenting styles.
The fact of the child’s withdrawal from one parent is not conclusive of alienation. It is therefore important to reflect on the other reasons why a child may align themselves with one parent. Parental separation is an incredibly turbulent and upsetting time for children; they are dealing with a wide range of emotions and are likely to react in different ways. For example, children may display anger or frustration towards one (or both) parents, particularly if they feel that one parent is at fault for the separation and consequential changes in their life.
It is also important to consider the potential alignment and attachment issues which can result in resistance, reluctance and refusal from a child, without any alienating behaviours being present. It is frequently necessary to instruct a psychologist within children proceedings to consider the cause of the child’s behaviour and whether it is likely to result from alienating behaviour perpetrated by one parent or any of the other potential causes outlined above.
Furthermore, the FJC draft guidance is clear that risk factors, such as domestic abuse, should be considered. Many family lawyers are finding that there are an increasing number of cases where one parent alleges domestic abuse, and the other makes counter-allegations of alienating behaviours. These allegations often need to be carefully considered and determined by the court at a fact-finding hearing.
However, in cases where there are findings of domestic abuse against the parent alleging alienation, the court will carefully consider whether that parent’s behaviour towards the other parent or the child is the cause of the child’s withdrawal. It may be found that the child has a justified response if the parent has acted abusively towards them or they have witnessed such abusive behaviour, in which case stage 2 of the test would not be satisfied.
Stage 3 – the resident parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s refusal, resistance, or reluctance to engage in a relationship with the other parent
The final step is establishing the causal link between the parent engaging in alienating behaviours and those behaviours having an impact on the child, leading to the child’s withdrawal or reluctance to engage in a relationship with the other parent. The parent making the allegations of alienation must provide evidence of the act or acts by a parent that have resulted in the psychological manipulation of the child, and therefore the child’s unjustified rejection of the other parent.
The FJC draft guidance indicates that the behaviour of the child is not evidence of the behaviour of the adult; the acts of the adult must be evidenced. The following examples of alienating behaviours are provided:
- repeatedly or constantly criticising or belittling the other;
- 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.
It may be that the parent is consciously engaging in the above behaviours, but the court may also make a finding of alienation if that parent is inadvertently engaging in such behaviours. The court’s paramount consideration in children proceedings is the welfare of the child and will be particularly concerned as to whether the parent is able to prioritise the child’s emotional and psychological needs over their own. Furthermore, an expert psychologist may need to be instructed to consider whether the parent has a psychological functioning which may result in the parent engaging in manipulative behaviours, either purposefully or inadvertently.
Concluding thoughts
Ultimately, proceedings where there are allegations of alienating behaviours, particularly when they coincide with allegations of domestic abuse, are often the most acrimonious, intractable and costly. If there is concern that one other parent is engaging in alienating behaviours, it is important to examine whether the three elements set out in Re C [2023] EWHC 345 (Fam) are likely to be met and have a strong evidential base before embarking on such litigation.
[1] https://www.judiciary.uk/wp-content/uploads/2023/08/For-Consultation-FJC-Draft-Guidance-on-Responding-to-allegations-of-alienating-behaviour-August-2023.pdf
