Alienating Behaviour and Parental Alienation: Don’t waste your time (FJC Guidance)

I have been finding, more often than I would hope to see, that the Family Justice Council Guidance (December 2024) is not being followed in private family proceedings and this is leading to a waste of parties’ and the court’s time as well as creating unnecessary delay in resolving matter where there are allegations of Parental Alienation. That ultimately also means unnecessary delay for the children within proceedings, which no one wants.

In December 2024 the Family Justice Council set out guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour (the “Guidance”); this is intended to be practical guidance on dealing with Parental Alienation and so is a good tool for understanding how to approach such cases and what the court should be interested in when making or defending such an allegation.

The Guidance also sets out a procedure to follow when the court has to determine whether the welfare of the child/ren within proceedings is being impacted by parental alienation or alienating behaviours (terms, which for ease, I shall use interchangeably though strictly speaking, they are not). When this procedure is not followed it can mean that the court lists additional hearings having not considered the legitimacy of Parental Alienation allegations, and then has to back track procedurally to consider whether a fact-finding hearing is necessary. Reallocation may mean that a lot of time, resources and money is wasted.

At page 7 of the Guidance there is a flowchart setting out the procedure the court should follow. This includes that should there be credible allegations of all 3 elements of Alienating Behaviour (as set out in the Guidance), then the matter should be allocated to a Judge. This is where cases may fall into difficulties when they have been allocated to Magistrates and the issue of Alienating Behaviour has not been tackled as it should have been.

A way to circumnavigate this issue, should you be the one making the allegation, may be to make clear in any application that Alienating Behaviour is alleged and address the three elements of Alienating Behaviour clearly in the application. This could mean that the matter is immediately allocated to a Judge and if not, puts everyone on notice that this should be a key consideration early on within the proceedings and directions for evidence made accordingly.

If you are opposing such an allegation then it shall be key to evidence why the allegation is not credible and this should be kept in mind when seeking directions. Furthermore, understanding the Guidance in relation to the interconnection between Domestic Abuse and Parental Alienation shall be a fundamental factor when persuading the court as to how it should consider Parental Alienation should it be considering making findings of the same.  

A key point to remember about Parental Alienation and Alienating Behaviour is that the lexicon was shifted to Alienating Behaviour from Parental Alienation, because there should be a focus on the child and the impacts on the child, rather than on parental behaviours per se. That means when thinking about the issue of Parental Alienation a key starting point is: What is the influence on the child of the Alienating Behaviour? Parental Alienation boils down to whether any reluctance, resistance or refusal of the child to engage in a relationship with a parent or carer is due to manipulation or for a legitimate reason. It can therefore mean that there is a need to go beyond the surface consideration of a child’s expressed wishes into why they express such wishes in relevant cases. This is also why it alienation can be complicated to grapple with, but highlights why it must not be overlooked.

Parental Alienation is a factual determination, much like Domestic Abuse. Therefore, if there is a credible concern in relation to the same the court shall need to consider whether a fact-finding hearing is proportionate and necessary; that means gathering evidence, making a judgement call and then proceeding with the matters at hand. To save delay this should be done as early in proceedings as possible: you would not want to have a Section 7 report and turn up to a final hearing (which you may have been waiting months for), only for the court to make directions that the matter needs to be reallocated, consideration as to whether there should be a fact-finding hearing and potentially thereafter another Section 7 report. Don’t waste your time: seek advice.