Draft Guidance on Responding to Allegations of Alienating Behaviour

Resolution’s response to the Family Justice Council.

Resolution has responded to the Family Justice Council (FJC) after it released draft guidance by its Working Group on responding to alienating behaviour.

The guidance is designed to assist the Family Court at whatever stage of the proceedings the issue of alienating behaviour is to be considered.

This response has been prepared by Resolution’s Children and Domestic Abuse Committees.

General comments

Many of our members have cases where allegations of alienating behaviours are appearing. We understand that allegations of alienating behaviour are less frequently raised in cases proceeding in the private law Pathfinder pilot courts which aim to centre the voice of the child in proceedings and at a much earlier stage. We look forward to hearing more about the findings of the pilot evaluation and roll out of the pilots to further courts.

In the meantime, we broadly welcome this draft Guidance and believe it could be useful in some cases. There are of course other and wider problems in the family justice system, not least delay and the time cases take to proceed through the family justice system. The range of solutions available for some families at the end of proceedings are severely limited in the absence of early family intervention and therapy for change. Any opportunities to divert families to such should be taken.

Resolution considers that how the voice of the child will be heard should be addressed at safeguarding and again at the first hearing in all child arrangements proceedings. In our members’ experience, in particular the voice of the child is heard far too late in cases where allegations of alienating behaviour are made. There should be some investigation as early as possible around what is going on in the family with the child at the centre.

It may not be possible within the scope of this particular Guidance, but we believe that the production of an early child impact report following the pathfinder model would be welcome. Or at least Cafcass should interview the child and produce in an interim wishes and feelings report much earlier (at the safeguarding investigation stage) to find out what the child is really thinking, feeling and saying before parents become even more embedded. Children have their own views, which if heard properly and early in the process with welfare analysis, can mean that any issues around alienating behaviours may fall away, and it may be established that there is justified reluctance to contact due to another reason. It could also assist in identification of concerning behaviours and judicial assessment of whether a fact finding and an evaluation of the evidence is necessary.

Resolution is, however, also concerned that the right balance needs to be struck between involving the child directly in the litigation at this early stage, as it may expose them to more conflict between their parents. There will need to be careful consideration of the welfare checklist (age, particular needs etc), and the allegations set out in the C100, C1A to determine what level of involvement would be appropriate for the child in question.

October 2023

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