In December 2024, the Family Justice Council published a guidance on ‘responding to a child’s unexplained resistance, resistance or refusal to spend time with a parent and allegations of alienating behaviour.*
The guidance debunks the myth that parental alienation is a diagnosable ‘syndrome’ and provides a helpful guide on steps to follow to assist where a child is reluctant, resistant, or refuses to see a parent. The guidance reminds us that decisions of fact in relation to allegations of alienating behaviour or domestic abuse, are a judicial function. It comments upon the issue of allegations of parental alienation alongside the allegations of domestic abuse and its impact on survivors and the importance of centralising the voice of the child and putting them back at the heart of cases concerning them.
Ian McArdle, Barrister at Atlantic Chambers comments upon that labelling is important whenever alienation arises, it is often referred to as ‘Parental Alienation Syndrome’ (PAS). The FJC’s concluded that it is a harmful pseudo-science that no evidential basis are not new conclusions – as seen in R L and Others (Children) [2000] EWCA Civ 194. Mr McArdle believes that the reason
why we continue to come back to PAS is a representation of a systematic issue. This being that the Family Court replies upon CAFCASS who are regarded as ‘Experts’ and receive training on parental alienation however this is rotted in the work of Dr Richard Garnder, the individual who formulated PAS.
Mr McArdle published an article in June 2021 ‘Parental Alienation: Where Are We All Going Wrong’. McArdle comments upon the case of Re L & Ors (Children) and this being over 20 years old, and we are not much further forward in establishing what the definition is.
The current working definition employed by CAFCASS is ‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’. McArdle states this definition is unhelpful as the use of the term ‘psychological’ medicalises the concept and therefore feeds into the narrative that it is a syndrome – a term with medical connotations.
Mr McArdle comments that within cases of domestic violence, the Court establish a factual matrix before making decisions relating to the welfare of the children, and in his view the same position should be take in cases of parental alienation. McArdle advises that factual matrix should be established as soon as possible as the ‘label’ we attach to the alleged behaviour leads to difficulties with contact and, in some ways, is unhelpful and seeks to either polarise positions further or medicalise an issue that may not require it. This only adds to further layers that the court needs to unravel, causing significant delay.
The barrister suggests that taking a step back from parental alienation and parental alienation syndrome would assist the court in focusing upon the real issue in the case: the behaviour of parents.
Take-home points:
- Early, robust case management is required
- Cases in which it appears all elements of alienating behaviour are present must be transferred to a Judge
- Is a Finding of Fact Hearing necessary and proportionate
- The court should consider the appointment of a Guardian
- It is for the Court to determine whether allegations are proven to the requisite standard, not an expert.
- Only HCPC regulated practitioner psychologists should be instructed at an appropriate time.
Domestic Abuse
If findings are made within domestic abuse proceedings, the Court does not automatically prelude to this having regard to alienating behaviour. The court will consider whether domestic abuse offers an explanation for the child’s resistance to contact, on a case-by-case basis.
Experts
McArdle states that the court has a tendency to instruct psychologists to ‘diagnose’ or ‘find’ alienation, and such applications come from CAFCASS officers and lawyers. This resulting in delay, increased expense and increased frustration. In Re C (Parental Alienation: Instruction of Experts) [2023] EWHC 345, the FJC states that their draft Guidance 2023 advises that experts are not to be used in this manner, however they still are.
Ian McArdle advises that whilst the FJC’s guidance is a start, we are a long way from the finish line.
