Understanding Parental Alienation in Family Law

In recent years the term ‘parental alienation’ has become commonplace in discussions concerning disputes between separated parents over arrangements for their children. It can be found not just in reports of court cases but also across the media, in all its forms.

But what exactly is ‘parental alienation’, and how is it dealt with by the family courts?

In this article we will provide answers to these questions, and also look at a recent development concerning the evidence that the courts use in cases involving allegations of parental alienation.

What is ‘parental alienation’?

‘Parental alienation’ is a much misunderstood term. It is often used to refer to a predetermined course of action by the parent with whom the children are living to turn them against the other parent. It is also sometimes referred to a ‘parental alienation syndrome’, or ‘PAS’, as if it is some sort of medical condition, capable of diagnosis.

But parental alienation is rarely predetermined, and it is certainly not a medical condition.

In fact, there is no single established legal definition of ‘parental alienation’. The nearest thing that comes to it is a definition by the Children and Family Court Advisory and Support Service (‘CAFCASS’), the body that advises the family courts about the welfare of children and what is in their best interests.

CAFCASS do not use the term ‘parental alienation’. Instead, they refer to what they call ‘alienating behaviours’. They use that term to describe “behaviours where one parent or carer expresses 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.”

CAFCASS explains that these behaviours “can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer.” “Alienating behaviours”, they say, “range in intensity and their impact on children.”

As to what form the behaviours may take, they are many and varied, but an academic study in 2020 gave an indication when it stated: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.”

How the courts approach the issue of alienation

Until quite recently there was no uniform approach to how courts should deal with cases involving allegations of parental alienation. The approach taken could vary from one area of the country to another, or even from one court to the next.

In order to address this inconsistency, last December the Family Justice Council, which monitors the family justice system, published guidance “on responding to a child’s unexplained reluctance, resistance, or refusal to spend time with a parent, and allegations of alienating behaviour”.

In a foreword to the guidance the President of the Family Division explained that the purpose of the guidance is “to ensure greater consistency of approach across the courts, to improve outcomes for children and families, and to protect children and victims from litigation abuse”.

The guidance explains that a court would need to be satisfied that three elements are established before it could conclude that alienating behaviours had occurred:

Firstly, that the child is reluctant, resisting or refusing to engage in, a relationship with a parent.

Secondly, that the reluctance, resistance or refusal is not consequent on the actions of that parent towards the child or the other parent, which may therefore be an appropriate justified rejection by the child, or is not caused by any other factor such as the child’s alignment, affinity or attachment.

Thirdly, that 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.

The guidance further explains that either or both parent(s) could engage in psychological manipulation which may or may not manifest in reluctance, resistance or refusal on the part of a child.

Importantly, the guidance also points out that research evidence suggests that alienating behaviours which actually impact upon a child’s relationship with the other parent are relatively rare. Therefore, despite an increasing number of allegations being made, findings of alienating behaviours will also be relatively rare.

Allegations of parental alienation are often made by one parent in response to allegations of domestic abuse by the other parent. However, the guidance makes clear that allegations of domestic abuse and ‘parental alienation’ cannot be equated. The risk, relevance and weight attached to ‘parental alienation’ and domestic abuse should not automatically be considered equal.

Having looked at how the courts approach cases involving allegations of parental alienation, we now turn to the practicalities of exactly how the court deals with these cases, including the options available to the court should it find allegations of alienating behaviour to be proved.

How the court deals with alienation allegations

When one party makes allegations of parental alienation the court will assess the allegations and decide whether they are genuine or whether, for example, they are simply made to counter allegations of domestic abuse. In particular the court will consider whether the allegations do indicate that alienating behaviours may have occurred – i.e. whether there is evidence of the three elements referred to above.

In many cases the court will fix a separate ‘fact-finding’ hearing at which it will consider the allegations (and also any allegations of domestic abuse). At the fact-finding hearing the court will hear all of the evidence from both parties and any expert witnesses (see below), and decide whether each of the allegations have been proved.

The court’s findings will then be taken into account when it decides what final order or orders it should make. If the court found the allegations of alienating behaviour to be proved then that will obviously have a considerable bearing upon the court’s decision, but exactly what the court decides to do will depend upon the facts of each case.

As always, the court’s decision will be made by reference to what it considers to be best for the welfare of the child. If, for example, the court considers that the child will suffer harm if they remain living with the ‘alienating’ parent then it may order that the child be removed from that parent and live with the other parent. On the other hand, the court may decide that the child’s welfare will be best served by remaining with a parent who has been found to have exhibited alienating behaviours.

Expert evidence of alienating behaviours

As mentioned above, the evidence considered by a court dealing with parental alienation allegations may include that of an expert witness, such as a psychologist. The expert will be proposed by one or both of the parties, and the court will decide whether they should be instructed, and what their remit should be.

But there is a problem with expert witnesses.

Obviously, what an expert tells the court is likely to carry significant weight, and could therefore be a major factor in the court’s ultimate decision. It is therefore essential that an expert has the appropriate skills and qualifications on which to base their expert evidence.

But there have increasingly been concerns about the qualifications of experts used by the family courts, in particular that some of them are not regulated by a professional body, which would ensure their competence to provide expert evidence.

The concerns can be illustrated by a case that was heard by the President of the Family Division in 2023.

In the case the children had been living with the mother and the father had been having contact with them. However, the contact broke down and the father was concerned that the mother was alienating the children from him. He therefore took the matter back before the court.

The court directed that an unregulated psychologist undertake an assessment of the family. The psychologist concluded that the children had indeed been alienated against their father by their mother. Following that conclusion, the court ordered that the children be removed from the mother and live with the father.

The mother appealed, and her appeal was dealt with by the President of the Family Division. The mother claimed that the court was wrong to instruct an unregulated expert. The President dismissed the appeal, but he did highlight the “need for due rigour” in the process of instructing an expert.

The Family Procedure Rule Committee has now considered the matter of unregulated experts, and is proposing that there be a requirement that any expert instructed in family law children proceedings must be regulated (save where no regulated expert is available), and adhere to the standards set by their governing body. The Committee is currently consulting the public for their views upon the proposal, but obviously it may help to ensure the standard of expert evidence in alienation cases.

Conclusion

Parental alienation is often referred to but, as mentioned above, it is actually quite rare for it to be proved. Nevertheless, if you believe that your children may have been alienated against you, or if the other parent has made alienation allegations against you, it is essential that you seek expert legal advice. We can provide you with such advice. To speak to one of our specialist lawyers, complete the form on this page.