Alienating Behaviour and a Child’s Unexplained Reluctance, Resistance or Refusal to Spend Time With One Parent After a Separation or Divorce
The Family Justice Council has issued Guidance on how courts and family law professionals should respond to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and how to deal with allegations of alienating behaviour.
Parents may be familiar with the term ‘alienating behaviour’ if they have had a difficult divorce and either been accused of alienating behaviour or tried to argue in a child arrangement order application that the reason their children don’t want to see them is down to the other parent’s alienating behaviour.
In this blog, our Family Law Solicitors look at the new Guidance and terminology.
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The December 2024 Guidance
The December 2024 Guidance contains a Foreword from the President of the Family Division, Sir Andrew McFarlane. He says:
‘’The issue of parental alienation/alienating behaviours is a polarising one which has taken up much court time and public debate… In my view, this guidance is required to ensure greater consistency of approach across the courts and to improve outcomes for children and families and to protect children and victims from litigation abuse.’’
The new terminology for alienating behaviour
There has been much debate about the use of the terms parental alienation and alienating behaviour. The Guidance suggests new terminology is adopted:
- Attachment, affinity and alignment (AAA) – reasons why children may favour one parent over another, or reject a parent, which are typical emotional responses to parenting experiences and not the result of psychological manipulation by a parent
- Appropriate justified rejection (AJR) – where a child’s rejection of a parent is an understandable response to that parent’s behaviour towards the child and/or the other parent
- Alienating Behaviours (AB) – psychologically manipulative behaviours, intended or otherwise, by a parent towards a child which has resulted in the child’s reluctance, resistance or refusal to spend time with the other parent
- Protective behaviours (PB) – behaviours by a parent towards a child to protect the child from exposure to abuse by the other parent, or from suffering harm or additional harm as a consequence of the other parent’s abuse
- Reluctance, resistance or refusal (RRR) – behaviours by a child concerning their relationship with, or spending time with, a parent, which may have a variety of potential causes
The new terminology and abbreviations will take time for Family Lawyers and those working in the family justice system to get to grips with. It may be even more confusing for parents reading old articles about parental alienation and alienating behaviour to follow the new terminology.
Our Family Law Solicitors recommend that parents do not worry too much about the terminology or getting the words right. If you are concerned that your ex-partner is stopping contact with your children without good reason then you need legal advice. Likewise, if your ex-partner demands contact when that is not in the child’s best interests, or against an older child’s wishes, you need legal advice.
Taking legal advice doesn’t necessarily mean a Family Lawyer will recommend applying for a child arrangement order or prohibited steps order. The solicitor may suggest family mediation or arbitration as the best means to achieve a resolution while explaining the types of child arrangement orders the court might make depending on whether the judge finds that attachment, affinity and alignment, alienating behaviours, or appropriate justified rejection have taken place. Understanding potential court outcomes can help parents reach a resolution outside of a court hearing.
Why is the Family Justice Council changing the alienating behaviour terminology?
In its Introduction, the Guidance says there is considerable tension around parental alienation and the associated term alienating behaviours. The Guidance states this terminology polarises opinion and is counterproductive to the best interests of children as it takes away the focus from the child’s voice.
Accordingly, the Family Justice Council (FJC) wants people to focus on the impact of behaviour on the child rather than focus on the behaviour without looking at the child’s needs. That is because:
- The FJC thinks that the concept of parental alienation syndrome has no evidential basis and it thinks it is a harmful pseudo-science and
- The use of parental alienation syndrome and parental alienation are overused in family law proceedings
The future reference to alienating behaviour in family court proceedings
The FJC acknowledges that alienating behaviour can take place and that:
- There will be child arrangement order applications where a judge finds that alienating behaviour has taken place
- Alienating behaviour to a child can be significant and enduring and similar to emotional or psychological child abuse
- Alienating behaviour can create long-term harm that can affect a child’s emotional, social and psychological development
In its Guidance, the FJC states that research suggests alienating behaviour that impacts the child’s relationship with the other parent is relatively rare. However, there has been an increase in children law applications where alienating behaviour has been alleged. The Guidance says findings of alienating behaviour will be rare.
A finding of reluctance, resistance or refusal (RRR) behaviour by a child in seeing a parent may have several reasons. The reluctance, resistance or refusal of a child to see one parent may not be due to alienating behaviour by the other parent. Therefore, a finding of reluctance, resistance or refusal does not necessarily amount to the other parent engaging in alienating behaviour.
The definition of alienating behaviour
If alienating behaviour is going to be found by a judge the test is:
- The child is reluctant, resisting or refusing to engage in a relationship with one parent
- The child’s reluctance, resistance or refusal is related to the actions of one parent towards the child or the other parent. If it was not parent related then under the FJC guidance this would be either appropriate justified rejection by the child (AJR) or the child’s alignment, affinity or attachment (AAA)
- The other parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage in a relationship with that parent
Domestic abuse and allegations of alienating behaviour
Allegations of alienating behaviour have increased in cases where one parent has alleged domestic abuse and the other parent denies it has taken place or the extent of it.
Concerns have also been expressed that allegations of alienating behaviour are made to:
- Exert post-separation control and
- A tactic to stop domestic abuse allegations as the abuse is countered by allegations of malicious alienating behaviour
The Guidance says alienating behaviour and domestic abuse cannot be considered to be equal in harm to a child. Where there has been domestic abuse in a parental relationship there may be a finding of appropriate justified rejection (AJR) or protective behaviour (PB) but that does not mean that one parent has engaged in alienating behaviour. A child may have reached their own views about parental contact or their parent may be engaged in protective behaviour to prevent further domestic abuse.
The Guidance emphasises the importance of alleging alienating behaviour in the child arrangement order application (or as quickly as possible afterwards) and providing information about all three elements of alienating behaviour. This is because allegations of alienating behaviour (where the test for alienating behaviour appears to be met) will be allocated to a judge rather than to the magistrate's court or lay judge.
In each child arrangement order application where allegations of alienating behaviour are made, the court will decide if it is relevant, proportionate, and necessary to determine the allegations. Ideally, alienating behaviour will be flagged in the child arrangement order application or in safeguarding discussions with CAFCASS. The allegations can then be considered by the court at the initial case management hearing.
Cafcass can investigate allegations of alienating behaviour but it is the judge’s job to decide if alienating behaviour has taken place and its impact on the child arrangement order and what contact, if any, will be in the child’s best interests. A judge may decide that a fact-finding hearing is necessary and proportionate to determine the issue before a separate final hearing takes place to look at the welfare issues.
If a court finds that domestic abuse did not take place as alleged then it won't automatically say that alienating behaviour has taken place if a child is reluctant to see the other parent. That’s because the parent alleging alienating behaviour must prove all three elements of alienating behaviour.
Will a finding of alienating behaviour result in a change of residence?
A finding that a parent has engaged in alienating behaviour won't necessarily result in a change of residence. Instead, the court should carefully assess the child’s needs and welfare. The court may order reports from experts to assist in deciding which parent a child should live with and the contact arrangements.
Our Family Law Solicitors understand that the language in the Guidance may add to parents’ confusion when all they want to do is see their children or keep them safe from harm. Our family law specialists can guide you through the new guidance and explain your options.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
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