The Three Rs: Reluctance, Resistance and Refusal

Talking Family Law - The Resolution Podcast

This episode is a strong start to the year. It is essential listening for all professionals working with separating families. We are joined by Jenny Beck KC (Beck Fitzgerald) , Dr Jamie Craig (Consultant Clinical Psychologist) and Zoe Fleetwood (Mills & Reeve) to discuss children that are reluctant, resistant or refusing to see the other parent, as well as parents engaging in psychological manipulation of their children by alienating behaviour.

We examine the Family Justice Council guidance in this area. The report is both erudite and succient at only 30 pages long and should be read by everyone involved in this field:

https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf

Zoe reminds of what has happened in the last 10 years to lead us here from PD12J, to the presumption in favour of a parent’s involvement which was inserted into the Children Act in 2014, LASPO which removed legal aid, the Domestic Abuse Act, Re HN , RE C [2023] EWHC 345 (Fam), Re S (Parental Alienation: Cult) : [2020] EWCA Civ 568 https://www.judiciary.uk/wp-content/uploads/2020/04/re-s-a-child-judgment290420.pdf, the Harm report from 2020, and the Domestic Commissioner’s Abuse Commissioners report of 2023https://domesticabusecommissioner.uk/wp-content/uploads/2023/07/DAC_Family-Court-Report-_2023_Digital.pdf. Zoe concludes with the case of Re (Parental Alienation: Factual Findings) [2024] EWFC 75 which maybe an example of the Court starting to change coursehttps://www.bailii.org/ew/cases/EWFC/OJ/2024/75.html

Jenny reminds us that there are three elements that a Court needs to find before concluding there have been alienating behaviours:

1. There must actually be a child who is reluctant, refusing or resistant to engage in a relationship with a parent;
2. That reluctant, refusal or resistant must be as a result of something other than appropriate justified rejection, or caused by alignment, affinity or attachment.
3. It has to be as a result of other behaviours that has impacted the child and that has led to the child’s reluctance, refusal or resistance.

Jamie points out that the child’s behaviour is not evidence of the adult’s behaviour. Nor is the absence of a reason for a child not to want to see the other parent proof that a child is alienating.

The guidance reminds us that there is not a equivalence between domestic abuse and parental alienation. The guidance also reminds us about the importance of the choosing appropriately qualified experts in complex family situations.

Jamie warns us of the dangers of pseudo-science and the psychobabble. He cautions against jumping to a conclusion that a child has been alienated if they are reluctant, refusing or resistant to the other parent. For example, a child may just be exhibiting attachment response, or a child demonstrating an affinity for a particular parent, or they may have come to their own decision about how they have understood the situation.

All of this is not to say that there are never occasions when parents have psychologically manipulated their children. We know that they do. Indeed, sometimes perpetrators of abuse psychologically manipulate children to believe the other parent is a danger. The point is that the burden of proof should not be reversed, and the Court approaching the case as if a parent has to prove they are not engaging in alienating behaviours.

Zoe links back to when we last discussed this topic from March 2022; Finding the Middle Ground; Parental alienation and High conflict cases, with Dr Mark Berelowitz and Alex Verdan KC.https://resolution.org.uk/podcast/resolution-podcast-season-1/

Finally we ask our guests to wrestle with the question of what professionals should do if they have been involved in a case where the Court has relied on advice from an expert who lacked the appropriate qualifications, or has made recommendations based on what we do is pseudo-science. Jenny suggests that if there has been an error in process then the professional or the Court may now need to engage with what is in the best interest of the child, therefore an appeal out of time maybe an appropriate step in some cases.

Please note that Jenny and Jamie were the Chairs of the Family Justice Council working group that wrote the guidance. However, they appear on this episode in their personal capacity and were not speaking on behalf of the Council.