In August 2023, the Family Justice Council published a consultation on draft guidance on responding to allegations of alienating behaviour. The consultation added to the (constant) debates regarding the concept of parental alienation in the Family Court, albeit seeking to give it a different name and sought to offer some clarity as to how these difficult cases can be dealt with.

Shortly after the publication of this consultation, I concluded field work for my doctorate in which I am researching how parental alienation / alienating behaviours is identified and managed within the Family Court. My field work took place around the time various articles appeared in the press about how the Family Court was operating in general, how cases of parental alienation were handled in the Family Court and the role that experts played in such cases and the handing down of judgment in Re C (Parental Alienation: Instruction of Experts) [2023] EWHC 345 (Fam).

Whilst I cannot, at this stage, go into detail about the conclusions I draw from my field work, I can say that a number of interesting things emerged which directly impact how the Family Court deals with these cases:

1. Knowledge, understanding and awareness of those working in the Family Court about parental alienation/alienating behaviours is limited.
2. Judicial understanding of parental alienation/alienating behaviours is a lottery.
3. There remains a strong desire to turn to psychologists to ‘diagnose’ parental alienation.

In June 2021, I wrote an article for Family Law Week called Parental Alienation: Where Are We All Going Wrong? in which I suggested stepping back from labels and focusing on behaviours. In short, I suggested that cases in which parental alienation is alleged should be dealt with by way of findings of fact hearings, in much the same way as the Family Court deals with cases of domestic abuse. I hasten to add that my view was informed by reading hundreds of articles about parental alienation from all over the world and across a number of disciplines, including law, sociology and psychology. I have also acted in cases where I have successfully persuaded the court to hold a finding of fact hearing to determine allegations of parental alienation/alienating behaviour. They allow the court to resolve these cases relatively quickly and efficiently.

The FJC consultation closed in October 2023. In reality, we are unlikely to receive final guidance anytime soon. But there is some valuable guidance offered in the draft guidance.

Cases in which parental alienation/alienating behaviours are alleged are amongst the most difficult private law cases the Family Court sees (because of the reasons my research has highlighted, perhaps??). A different approach is out there. It may seem new. It may seem novel. It may seem confusing (how do you plead allegations of parental alienation/alienating behaviour). But it is possible. And with that possibility, comes better outcomes for your clients and the children at the centre of these cases.

Ian McArdle is a barrister specialising in all aspects of children law. Ian is currently researching Parental Alienation in the Family Justice System to doctoral level alongside his practice. Ian is authorised to accept instructions on a direct access basis and is willing to advise in conference as well as represent clients throughout England and Wales.