‘My ex is turning the children against me’ – How the Family Court deals with allegations of parental alienation
26 January 2023
What is ‘parental alienation’?
‘Parental alienation’ is not a term that is defined in law. Legal professionals and the Family Court focus on the behaviour of the parents, and the impact of that behaviour on the children involved. It is a term that has courted controversy in the last few years, and as such allegations need careful and sensitive handling.
In his keynote address at the Families Need Fathers Conference on 25 June 2018, Sir Andrew McFarlane, then incoming President of the Family Division, explained: “a parent can either deliberately or inadvertently turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship”.
Alienating behaviours can be extremely damaging to children and may lead to a permanent degradation of the relationship between the child and the alienated parent. In essence, they are a form of emotional and psychological abuse, though the alienating parent may not even be aware that they are exhibiting these behaviours. Alienating behaviours can be perpetrated and endorsed by members of the wider family.
In more extreme cases, an alienated child may make serious allegations against a parent requiring the intervention of professionals. These can be very destructive and lead to parallel criminal investigations, and parents being suspended from their employment pending investigation.
Family Justice Professionals are all too aware of the risk of alienation in high conflict divorces or separations. Cafcass assess alienating behaviours within the Cafcass Child Impact Assessment Framework (CIAF). Within this framework, any Family Court Adviser (FCA) must consider the reasons for a child’s resistance to spend time with a parent and the FCA will make recommendations in their s7 Report, which the Court will consider before making final orders about child arrangements.
What action will the Court take if allegations of alienation are a live issue?
In the case of Re S (Parental Alienation: Cult)  EWCA 568, Peter Jackson LJ stated that there is an obligation on the Court to respond with “exceptional diligence and take whatever effective measures are available” as inaction on the part of the Court will “reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention”. The Court’s primary obligation is “to keep the child’s medium to long term welfare at the forefront of its mind”.
Where possible, the Court will seek to reason with the parents and urge them to take a course of action for their child that is in its best interests; however, the Court has significant powers within its discretion. The Court may change a child’s living arrangements, so that the child moves away from the alienating parent’s home to the alienated parent’s home, if it deems this in the best interest of the child. When making any decision about a child the Court considers the provisions of the welfare checklist, as set out in s1(3) of the Children Act 1989.
The Court’s case management powers
If the issue of parental alienation is raised at the FHDRA (First Hearing and Dispute Resolution Appointment), the Court will make case management directions on the matter. The judge may order a separate Fact Finding Hearing so that findings of fact can be made on the issue of parental alienation. Further, at the FHDRA, the judge will likely order a FCA for Cafcass to produce a s7 Report, where the issue of parental alienation will be considered. The s7 Report will be published prior to the second hearing (the ‘Dispute Resolution Appointment’) or, where there has been a separate Fact Finding Hearing, the s7 Report will be published after the Fact Finding Hearing but prior to the Dispute Resolution Appointment. This is so that the FCA has a factual matrix established by the Court process before making welfare recommendations.
The Court also has powers under rule 16.4 of the Family Procedure Rules, to make a child a party to proceedings. When this happens, a Guardian is appointed, who will give the Court an independent view of proceedings, from the child’s perspective. The Guardian will instruct a solicitor to represent the child. This is likely to happen in the situation where there have been repeated proceedings or an intractable hostility to contact by one or both of the parties.
The Court must give permission for expert evidence to be adduced in Children Proceedings. An application will need to be made to the Court which is compliant with part 25 of the Family Procedure Rules, if an expert is to be instructed on the issue of parental alienation (such as a child psychologist). The use of experts in Children Proceedings is a topic that is being given consideration currently by those involved in advising the Family Court, and specifically the use of experts who hold themselves out to be experts in parental alienation.
Fact Finding Hearings
In cases where serious parental alienation is alleged, Practice Direction 12J of the Family Procedure is likely to be engaged, which deals with domestic abuse and harm in Children Proceedings. The Court may direct that there should be a Fact Finding Hearing. This is a discrete hearing where both parties provide evidence to the Court and may be cross-examined. The Court will make findings of fact and these findings will form the factual matrix for the rest of the case. There is, however, a push to only have Fact Finding Hearings where it is absolutely necessary and proportionate, following the case of K v K  EWCA Civ 468.
The Birketts View: How to reduce the risk of parental alienation
Early stage interventions including alternative dispute resolution such as mediation or arbitration can reduce the risk of parental alienation. As Court litigation becomes prolonged and the parties’ positions become more entrenched, the risk of conflict and parental alienation increases. It is therefore important to be live to these issues from an early stage. The Court may also direct attendance at a SPIP (Separated Parents Information Programme workshop) and this can highlight to some parents what the impact of behaviours as innocent as body language can communicate to a child.
If you think your ex-partner is exhibiting alienating behaviours, or if you need advice more generally in relation to children matters, contact a member of the Family Team at Birketts to talk about a way forward.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2023.