New guidance from the Family Justice Council represents a significant step forward when dealing with cases involving allegations of ‘alienating behaviour’.
I am pleased to have contributed to this important workstream alongside my respected colleagues on FJC. The resulting guidance sheds light where there was noise and gives clear and practical guidance for how to manage these complex cases.
Key highlights of the guidance include:
- Debunking myths around the existence of a diagnosable “syndrome” of alienating behaviours while providing clear steps to follow when a child is reluctant, resistant, or refusing to see a parent.
- Reaffirming judicial responsibility for determining facts related to allegations of alienating behaviour or domestic abuse.
- Addressing the complex interplay between allegations of alienating behaviour and domestic abuse, emphasizing the need to consider the impact on survivors and carefully unpick these intertwined issues.
- Centring the voice of the child, ensuring children are placed at the heart of cases concerning their welfare.
Jenny Beck KC, who serves as the Private Law Solicitor Representative on the Family Justice Council, chaired the working group that developed this vital resource. It represents a significant advancement in ensuring fairness and protection for all parties, especially children, within the family justice system.
Read the full article below:
The guidance, aimed at judges and published today by the Family Justice Council, recognises the concerning trend of counter-claims of “alienating behaviours” 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 “alienating behaviours” – 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 alienating behaviours 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 ‘alienating behaviours’ 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.
“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 alienating behaviours 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 alienating behaviours for 18 months. Last year TBIJ revealed that a woman found to have been raped by her ex-partner – and accused by him of alienating behaviours – 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.
This article is reproduced from The Journal of Investigative Journalism https://www.thebureauinvestigates.com/stories/2024-12-11/parental-alienation-argument-cannot-be-used-against-domestic-abuse-victims-say-judges/
Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children.
She is an accredited Resolution specialist and an Advanced Family Law Panel member. In 2021 Jenny was made an Honorary Kings Counsel (KC Honoris Causa) in recognition of her contribution to changing the law of England and Wales
Key highlights of the guidance include:
- Debunking myths around the existence of a diagnosable “syndrome” of alienating behaviours while providing clear steps to follow when a child is reluctant, resistant, or refusing to see a parent.
- Reaffirming judicial responsibility for determining facts related to allegations of alienating behavior or domestic abuse.
- Addressing the complex interplay between allegations of alienating behavior and domestic abuse, emphasizing the need to consider the impact on survivors and carefully unpick these intertwined issues.
- Centring the voice of the child, ensuring children are placed at the heart of cases concerning their welfare.
Jenny Beck KC, who serves as the Private Law Solicitor Representative on the Family Justice Council, chaired the working group that developed this vital resource. It represents a significant advancement in ensuring fairness and protection for all parties, especially children, within the family justice system.
Read the full article below:
The guidance, aimed at judges and published today by the Family Justice Council, recognises the concerning trend of counter-claims of “alienating behaviours” 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 “alienating behaviours” – 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 alienating behaviours 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 ‘alienating behaviours’ 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.
“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 alienating behaviours 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 alienating behaviours for 18 months. Last year TBIJ revealed that a woman found to have been raped by her ex-partner – and accused by him of alienating behaviours – 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.
This article is reproduced from The Journal of Investigative Journalism https://www.thebureauinvestigates.com/stories/2024-12-11/parental-alienation-argument-cannot-be-used-against-domestic-abuse-victims-say-judges/
Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children.
She is an accredited Resolution specialist and an Advanced Family Law Panel member. In 2021 Jenny was made an Honorary Kings Counsel (KC Honoris Causa) in recognition of her contribution to changing the law of England and Wales