Parental alienation: landmark new guidance issued to protect victims of domestic abuse

Groundbreaking new guidance has been issued to help the family courts protect victims of domestic abuse from claims of “parental alienation”.

The guidance, aimed at judges and published today by the Family Justice Council, recognises the concerning trend of counter-claims of “parental alienation” being raised in response to allegations of domestic abuse.

It says that such claims will fail if made by a parent whose abusive behaviour has caused the child to reject them. Equally false or unproven allegations of domestic abuse do not in themselves amount to alienating behaviour, the guidance says.

It also provides robust new instructions on the use of expert witnesses in these cases, stating that any psychologist whose opinion is sought by the court should be regulated and should not be asked about alienating behaviours.

The concept of “parental alienation” – which describes a child’s rejection of one parent because they have been manipulated by the other – has been the subject of heated debate in recent years and the focus of the Bureau of Investigative Journalism’s Family Court Files series.

Its proponents argue parental alienation is a widespread form of child abuse. But women’s rights campaigners have voiced concerns that the concept is being employed as a litigation tactic to silence abuse victims.

The new guidance states that while two parents’ competing allegations of abuse and alienation can be considered at the same time, the court’s deliberations should “begin with domestic abuse and review the alienating behaviours through that prism”.

This is because a parent’s domestic abuse could justifiably explain why a child has rejected that parent or been encouraged to do so, it says.

Jenny Beck KC, chair of the Family Justice Council working group, said: “The guidance debunks the myth that there is a diagnosable syndrome of ‘parental alienation’ and provides a helpful guide of the important steps to follow where a child is reluctant, resistant or refusing to see a parent. It reminds us that there can be myriad reasons for a child’s behaviour.

“It is hoped the guidance will put an end to spurious or misguided allegations of alienating behaviours which polarise families, waste judicial time and fail to centralise children’s best interests.

“The guidance reminds us it is the job of the judge to determine the facts of a case. In the past, expert psychologists and psychotherapists have trespassed on this judicial function as they have been instructed at the wrong time or gone beyond their remit and competence.”

‘It has been long awaited’

Giving evidence to the justice committee in April, the president of the Family Division in England and Wales, Sir Andrew McFarlane, said there had been a “complete upsurge” in the number of cases coming to court in which parental alienation is alleged.

Introducing the new guidance McFarlane, who is also chair of the Family Justice Council, said the issue was a polarising one which had taken up much court time. He wrote: “This guidance note reflects the complexity and challenges of this area of family law. It has been long awaited.”

He added: “I approved this workstream for the Family Justice Council knowing how divisive this topic has become.”

“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.”

‘Self-styled experts’

The new guidance will be welcomed by those working to support survivors of rape and domestic abuse going through the family courts. Allegations of domestic abuse feature in up to 60% of private law children cases.

The guidance says allegations of domestic abuse and alienating behaviours ‘cannot be equated’ and highlighted that domestic abuse is a crime.

The guidance does acknowledge that, where found, alienating behaviour can range in intensity and the harms can be far-reaching.

But it also points out that research shows adult behaviours rarely manifest in the behaviour of children and findings of alienating behaviours “will thus be rare”.

Jaime Craig, a consultant clinical psychologist and director of policy at the Association of Clinical Psychologists, said: “The guidance makes clear we need to move away from this idea that a child’s presentation can be used as evidence of a parent’s alleged alienating behaviour – and away from self-styled alienation experts who present that as evidence.

“Instead we hope judges take on board this new guidance in appointing clinical psychologists and counselling psychologists who complete holistic assessments that properly inform child welfare decisions.”

Expert witnesses should not be asked by the court whether a child has shown alienating behaviours, according to the guidance. Their opinions can be sought when a court decides what happens to a child after the presence of such behaviour has been identified. However, these assessments should only be carried out by psychologists who are registered with the regulator, the Health and Care Professions Councils.

Judges are also advised not to dismiss the voice of the child unless there is good evidence they have been manipulated into expressing certain views.

Craig said: “Some experts have actively been involved in justifying disregarding the voice of the child after persuading the courts their wishes and feelings are the product of brainwashing by the ‘alienating’ parent without such evidence.”

Some concerns

London’s independent victims’ commissioner, Claire Waxman, voiced some reservations about the guidance. She said: “Whilst it is positive the guidance makes it clear claims of domestic abuse must always be addressed as a priority in family law proceedings, I am concerned that the guidance does not sufficiently address cases where child sexual abuse has been disclosed.

"We know that there are cases where children’s disclosures have also been dismissed and reframed as alienation.”

Last week a report from the Child Safeguarding Practice Review Panel highlighted safeguarding failures in private law proceedings that had resulted in children being placed into the care of dangerous sexual abusers.

Waxman added: “I am pleased that the guidance recommends judges only appoint regulated psychologists as expert witnesses, however, we still await a ruling from the Family Procedure Rules Committee to outlaw the use of unregulated experts within the family court system entirely.”

The guidance was produced following more than 100 responses from individuals and organisations over the course of a year-long consultation.

TBIJ has been reporting on cases involving claims of parental alienation for 18 months. Last year TBIJ revealed that a woman found to have been raped by her ex-partner – and accused by him of parental alienation – had to repeatedly give evidence in court due to an error made by a judge. The father was later stripped of his parental responsibility.

In April, TBIJ reported the case of a man who raped his wife and spent years accusing her of alienating their children from him – accusations a judge found were made to “distress, confuse and frighten her”.

In another case a mother claimed that evidence given by an unregulated psychologist had been used by her abusive ex-partner to bolster his harassment of her.