Answering An Alienation Allegation Where A Child’s Reluctance Had Another Explanation

The legal issue

A child is reluctant to spend time with one parent. That parent's case is that the reluctance has been caused by the other parent - by manipulation, by hostility, by denigration, by making the child feel that going would be a betrayal. The parent the child lives with says the reluctance has a different source: the child's own experience of that parent's behaviour, or of the household, or of what happened before separation.

The label is doing a great deal of work in that dispute, and it should not be. "Parental alienation" appears in no statute. It is not defined in the Children Act 1989 and it is not a diagnosis a court can find. What the court decides is a question of fact - what caused this child's reluctance - and then a question of welfare - what arrangements serve this child now.

The legal questions are therefore: what behaviours are actually alleged, and what is the evidence for each; what does the child say, and how much weight does that carry given their age and understanding (Children Act 1989 s.1(3)(a)); is the child at risk of harm, and from what (s.1(3)(e)); where abuse is raised, what does Practice Direction 12J require the court to do before it decides anything about contact; how does the court find out (s.7); and will the court permit an expert assessment at all (Children and Families Act 2014 s.13).

In this matter, one parent said that the child’s reluctance to spend time with them had been caused by the other parent’s behaviour. The concerns raised included alleged difficulties around communication, support for arrangements and the way the child understood the relationship with the other parent.

The parent we assisted did not accept that account. Their position was that the child’s reluctance arose from the child’s own experiences and concerns, rather than from encouragement or pressure by the other parent.

The issue arose while the court was considering arrangements for the child and before the court had made findings on the disputed allegations. The child’s views were relevant, but their wishes and feelings had to be considered alongside the wider evidence and the child’s welfare.

The law this rests on

• Children Act 1989 s.1(1) - the child's welfare is the court's paramount consideration on any question about the child's upbringing
• Children Act 1989 s.1(2), s.1(2A), s.1(4), s.1(5) and s.1(6) - the delay principle, the presumption of parental involvement and how it is qualified, and the no-order principle
• Children Act 1989 s.1(3)(a) - the child's ascertainable wishes and feelings, considered in the light of age and understanding
• Children Act 1989 s.1(3)(e) - any harm the child has suffered or is at risk of suffering
• Children Act 1989 s.7 - welfare reports, and the court's power to take account of their contents
• Children Act 1989 s.8 - child arrangements orders, prohibited steps orders and specific issue orders
• Children Act 1989 s.11(1) and s.11(7) - the timetabling duty, and the directions and conditions a section 8 order may contain
• Children Act 1989 s.11A and s.11C - activity directions and activity conditions, subject to the s.11A(6) prohibition on requiring therapy or mediation
• Children and Families Act 2014 s.13 - control of expert evidence and assessments in children proceedings, and the necessity test at s.13(6)
• Family Procedure Rules 2010, Practice Direction 12J Child Arrangements and Contact Orders: Domestic Abuse and Harm - in particular paragraphs 4, 5, 36 and 37

How we approached it

Step one: refuse the label, answer the facts.

The first move in answering an allegation of this kind is to convert it from a label into a list. "Alienation" is a conclusion. What a court can decide is whether particular things were said or done, and what effect they had. So the case is broken down into: which specific behaviours are alleged; when each is said to have occurred; what evidence supports each; and what the alternative explanation for the child's reluctance is.

This matters because the court's task is set by statute and the statute contains no such concept. Children Act 1989 s.1(1) makes the child's welfare the court's paramount consideration when it determines any question with respect to the upbringing of a child. Section 1(3) sets out the checklist the court has particular regard to in the circumstances described in s.1(4) - which include, under s.1(4)(a), where the making, variation or discharge of a section 8 order is opposed by any party.

Two checklist factors carry most of the weight in a case of this kind:

- s.1(3)(a) - the ascertainable wishes and feelings of the child concerned, considered in the light of the child's age and understanding. The two qualifications are the point. "Ascertainable" means the court must find out what the child actually thinks rather than take an adult's word for it. "In the light of age and understanding" is what allows the court to conclude that a child's stated view is genuinely their own, or that it is not, or that it is their own but formed on a partial picture.
- s.1(3)(e) - any harm which the child has suffered or is at risk of suffering. This is the limb that holds both cases at once. If the court finds that a parent’s conduct has caused or materially contributed to a child’s unjustified rejection of the other parent, it may consider the resulting impact when assessing harm under s.1(3)(e). If a child has been exposed to abusive behaviour by the other parent, that is also harm within s.1(3)(e). The same statutory provision is being argued about from opposite directions, and the court decides which account the evidence supports.

The rest of the checklist still applies: needs (b), the likely effect of any change of circumstances (c), age, sex, background and relevant characteristics (d), each parent's capability (f), and the range of powers available (g).

Step two: the presumption, and what displaces it.

Children Act 1989 s.1(2A) requires the court, in the circumstances mentioned in s.1(4)(a) or s.1(7), to presume, unless the contrary is shown, that involvement of each parent within s.1(6)(a) in the child's life will further the child's welfare. Section 1(6)(a) confines that to a parent who can be involved in a way that does not put the child at risk of suffering harm, and s.1(6)(b) provides that a parent is to be treated as within (a) unless there is evidence before the court in the particular proceedings to suggest that their involvement would put the child at risk of harm whatever the form of the involvement.

So the presumption is a presumption of involvement of some kind. It is not a presumption of a particular division of time, and it is not displaced simply by an assertion. Answering an alienation allegation while resisting all contact is a difficult position to hold, and the way the presumption is drafted is why.

Step three: where abuse is raised, Practice Direction 12J governs the sequence.

Practice Direction 12J of the Family Procedure Rules 2010, "Child Arrangements and Contact Orders: Domestic Abuse and Harm", applies wherever it is alleged, admitted or there is other reason to believe that a child or a party has experienced domestic abuse or is at risk of it. Where a child's reluctance is said to arise from the other parent's conduct, PD12J is the framework, not the alienation label.

What it does:

- Paragraph 4 records that domestic abuse is harmful to children, and puts children at risk of harm, including where they are victims of it themselves, for example by witnessing one parent being abusive to the other or living in a home in which domestic abuse is perpetrated.
- Paragraph 5 requires the court, at all stages of the proceedings and specifically at the First Hearing Dispute Resolution Appointment, to consider whether domestic abuse is raised as an issue.
- The direction then governs whether the court needs to determine the disputed allegations at a fact-finding hearing before it can decide about arrangements, and what it must do in the meantime.
- Paragraph 36 requires the court to make an order for contact only if it is satisfied of the matters there set out, including that the physical and emotional safety of the child and of the parent with whom the child is living can, as far as possible, be secured.
- Paragraph 37 requires the court to consider the conduct of both parents towards each other and towards the child, and the impact of it.

Paragraph 37 is worth dwelling on when answering an alienation allegation, because it points at both parents. The court is not being asked to choose a villain; it is being asked to assess conduct on both sides and its effect on the child.

The practical consequence is a sequencing argument. Where allegations of abuse are made and are relevant to the decision the court has to take, the court considers under PD12J whether they need to be determined first. A conclusion about why a child is reluctant, reached before that question is answered, is a conclusion reached on an incomplete picture.

Step four: how the court finds out.

Children Act 1989 s.7(1) allows the court considering any question with respect to a child under the Act to ask a Cafcass officer or a Welsh family proceedings officer, or a local authority, to report on such matters relating to the child's welfare as are required to be dealt with in the report. Section 7(3) allows the report to be written or oral. Section 7(4) allows the court to take account of any statement in the report and any evidence given in respect of the matters in it, regardless of any enactment or rule of law that would otherwise prevent it. Section 7(5) imposes a duty to comply with the request.

The scope of the request is where the work is. A welfare report is generally more useful when it addresses the evidence relevant to the child’s wishes, experiences, relationships and welfare, rather than treating a disputed label as the question to be determined. The court remains responsible for determining disputed facts and making the welfare decision. A report asked what the child says, how the child presents, what the child's understanding is, what each parent says and how each behaves towards the child gives the court the material to reach its own conclusion.

And a section 7 report is advice, not a decision. The court can depart from a recommendation and a party can ask it to - a point that cuts both ways and is worth stating plainly whichever side of the allegation a parent is on.

Step five: expert evidence, and the control on it.

Allegations of this kind attract applications for psychological assessment, and those applications are controlled.

Children and Families Act 2014 s.13(1) provides that a person may not, without the permission of the court, instruct a person to provide expert evidence for use in children proceedings. Section 13(3) provides that a person may not, without permission, cause a child to be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in children proceedings. Section 13(2) makes evidence resulting from instructions given in breach of s.13(1) inadmissible unless the court rules that it is admissible.

Section 13(6) is the test: the court may give permission only if it is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly. Section 13(7) requires the court, in deciding, to have regard to matters including the impact of giving permission on the welfare of the child, the issues to which the evidence would relate, the questions the expert would answer, what other expert evidence is available, whether the evidence could be given by another party or a witness already involved, the impact on the timetable and conduct of the proceedings, and the cost.

Necessary is a higher threshold than useful or helpful, and it is applied. So an application for an assessment has to be answered on its own terms: what question would the expert answer that the court cannot answer on the evidence and the section 7 report; and is that question one an expert can properly answer at all, given that the ultimate issue - what caused the child's reluctance, and what serves the child's welfare - is for the court.

Step six: the order in which the court works through it.

1. Is domestic abuse raised as an issue? PD12J paragraph 5 requires that question at all stages and specifically at the first hearing.
2. If so, do the disputed allegations need to be determined before arrangements can be decided, and if so how? PD12J governs that decision.
3. What does the court need to know, and who should find it out? Section 7 of the Children Act 1989, and s.13 of the Children and Families Act 2014 if an expert is proposed.
4. What are the facts? The specific behaviours alleged on each side, decided on the evidence to the civil standard, the balance of probabilities.
5. What does welfare require? Section 1(1), with the s.1(3) checklist, s.1(3)(a) and s.1(3)(e) doing most of the work, and the s.1(2A) presumption applying subject to s.1(6).
6. What order, if any? Section 8, subject to the s.1(5) principle that no order is made unless it would be better for the child than making none, and to PD12J paragraph 36 where abuse has been established or is in issue.
7. Section 1(2) and s.11(1) run underneath all of it: delay is treated as likely to prejudice the child's welfare, and the court must timetable the case and give directions to keep to that timetable.

What a parent answering this allegation should understand.

The strongest evidence is what you have actually done. A record of contact offered, messages sent, arrangements facilitated and information shared is worth more than any amount of argument about motive - and its absence is what an alienation allegation feeds on.

The weakest position is one that opposes every form of involvement. Section 1(2B) and the structure of s.1(2A) mean the presumption is about involvement of some kind, including indirect involvement. A parent who is genuinely worried about safety can say so under PD12J while still supporting the form of involvement that is safe.

And resist the temptation to answer a label with a label. "Justified estrangement" is no more a legal test than "alienation" is. What persuades a court is the evidence for the specific behaviours alleged, and a coherent, evidenced explanation of what the child has actually experienced.

Realistic timescales. Where a fact-finding hearing is directed under PD12J, that hearing and the section 7 report that follows it add substantially to the life of the case, and proceedings of this kind are measured in many months. Section 1(2) treats delay as likely to prejudice welfare and s.11(1) requires a timetable, but neither shortens a case that genuinely needs findings before it can be decided.

What the law does not do here. It does not recognise "parental alienation" as a legal test, a statutory concept or a diagnosis, and no court can decide the case by applying the label. It does not entitle a party to a psychological assessment - s.13(6) of the Children and Families Act 2014 permits one only where the court considers it necessary. It does not treat a child's stated wishes as decisive; s.1(3)(a) makes them one factor, weighed in the light of age and understanding. And it offers no promise about the outcome: the court's powers under s.8 are powers, exercised on the evidence in the particular case.

We assisted the client to respond to the specific behaviours relied on, rather than to the label used to describe them. This involved organising the available communications, records of proposed arrangements and other material relevant to what had happened in practice.

We advised and assisted the client to set out their account of why the child had become reluctant, including the evidence they said supported that explanation. The focus remained on the child’s experiences, the evidence available to the court and the welfare issues arising from them.

Where safeguarding concerns or allegations of domestic abuse were relevant, we assisted the client to understand the PD12J process and the possible need for the court to decide disputed facts before making longer-term arrangements. We also helped the client consider the information that a section 7 report might usefully address, including the child’s wishes and feelings, the child’s experiences and the practical arrangements proposed by each parent.

We assisted the client to consider any proposal for expert evidence against the statutory necessity test. The question was not whether further assessment might be useful, but whether it was necessary to assist the court to resolve the proceedings justly.

Throughout, we helped the client consider arrangements that could support the child’s relationship with the other parent where that was safe and consistent with the child’s welfare.

The outcome

The orders and directions a court can make on a dispute of this kind, and what governs the choice between them:

- A direction under Practice Direction 12J that a fact-finding hearing be held to determine disputed allegations, or a decision that one is not necessary because the allegations would not affect the order the court makes.
- Findings of fact on the specific behaviours alleged by either parent, made on the balance of probabilities - which may include findings that alleged behaviours did not occur.
- A section 7 report directed under Children Act 1989 s.7(1), addressed to what the child says and how each parent behaves rather than to the label.
- Permission, or refusal of permission, for expert evidence under Children and Families Act 2014 s.13, applying the necessity test at s.13(6).
- A child arrangements order under Children Act 1989 s.8 regulating with whom and when the child is to live, spend time or otherwise have contact - which may provide for direct contact, for supervised or supported contact, for indirect contact only, or for a staged change over time.
- Directions and conditions attached to that order under s.11(7), including provision limited to a specified period.
- An activity direction under s.11A or an activity condition under s.11C, where work with the adults would help - subject to the s.11A(6) prohibition on requiring therapy or mediation.
- A variation or discharge of an existing order under s.8.
- No order at all, under the s.1(5) principle.

What governs the choice is welfare under s.1(1), the s.1(3) checklist with s.1(3)(a) and s.1(3)(e) doing most of the work, the s.1(2A) presumption of parental involvement as qualified by s.1(6), and, where abuse is in issue, PD12J - in particular paragraph 36, which permits a contact order only where the court is satisfied of the safety matters set out there, and paragraph 37, which requires the court to consider the conduct of both parents and its impact.

The court considered the evidence relevant to the child’s reluctance and made directions intended to obtain the information needed before longer-term arrangements could be decided. Those directions addressed the child’s welfare, the child’s wishes and feelings, and the issues raised by both parents.

The court then made arrangements tailored to the child’s circumstances and welfare needs. The outcome did not turn on the use of a label. It turned on the evidence available in that particular case, the court’s findings where findings were required, and the court’s assessment of what would best promote the child’s welfare.

Every children case turns on its own evidence, the child’s welfare and the court’s assessment of the particular circumstances. This account is not a prediction or guarantee of the outcome in any other case.

What to take from this

• "Parental alienation" is not a legal test and not a diagnosis. It appears in no provision of the Children Act 1989. What a court decides is what caused the child's reluctance, as a question of fact, and then what the child's welfare requires under s.1(1).
• Turn the label into a list. A court can find that particular things were said or done; it cannot find that a parent is "an alienator". Answer each alleged behaviour with the evidence, and give the court a coherent alternative explanation.
• The same checklist factor holds both cases. Children Act 1989 s.1(3)(e) covers harm the child has suffered or is at risk of suffering, whether the source alleged is a parent turning a child against the other or a parent's own abusive behaviour. The court decides which account the evidence supports.
• Where abuse is raised, Practice Direction 12J of the Family Procedure Rules 2010 sets the sequence. Paragraph 5 requires the court to consider the issue at all stages and specifically at the first hearing; paragraph 36 permits a contact order only where the court is satisfied of the safety matters; paragraph 37 requires the court to consider the conduct of both parents and its impact.
• You are not entitled to a psychological assessment. Children and Families Act 2014 s.13(1) and s.13(3) require the court's permission to instruct an expert or to have a child assessed, and s.13(6) allows permission only where the court considers the evidence necessary to assist it to resolve the proceedings justly.
• A section 7 report is advice, not a decision, and the question it is asked matters. Children Act 1989 s.7 lets the court commission it and s.7(4) lets the court take account of it, but the conclusion on causation is the court's to reach - and a party can ask the court to depart from a recommendation.
• Opposing every form of involvement is the hardest position to hold. Children Act 1989 s.1(2A) presumes that a parent's involvement furthers the child's welfare unless the contrary is shown, and s.1(6) qualifies that only where there is evidence that involvement would put the child at risk whatever form it took. Support the form of involvement that is safe, and say why the others are not.
• What you have actually done is the evidence. Contact offered, messages sent, arrangements facilitated, information shared - a contemporaneous record of supporting the child's relationship with the other parent is the most effective answer to an allegation of this kind.