RE Y AND ALIENATING BEHAVIOUR: CLARIFYING THE MODERN APPROACH
The decision in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38, handed down by Sir Andrew McFarlane, President of the Family Division, has provided much-needed clarity for legal professionals and families regarding the treatment of alienating behaviour within private children proceedings.
The judgment reinforces the modern judicial approach to allegations of Parental Alienation and highlights the importance of a robust evidential framework when considering such claims.
What is Alienating Behaviour?
Alienating behaviour occurs when one parent engages in conduct that causes a child to become reluctant, resistant, or refusing to have a relationship with the other parent, without a legitimate or reasonable justification.
For many years, the concept of parental alienation was frequently referred to as a “syndrome”, often without sufficient evidential support. This approach has been a catalyst for issues, confusion and often devastating results within children law proceedings.
The case of Re Y provides a stark example of the risks associated with an inadequate approach to allegations of alienation.
The Facts of Re Y
At the heart of Re Y is a cautionary tale about the potentially serious consequences of flawed findings.
In 2019, findings of parental alienation resulted in two children being removed from their mother’s care and having no contact with her for approximately five years. Those findings were based substantially on the evidence of an expert who was neither HCPC-registered nor a chartered psychologist.
Upon reviewing the case, Sir Andrew McFarlane concluded that the process adopted by the court had been fundamentally flawed. As a result, the earlier findings were set aside.
The President emphasised that the approach taken was inconsistent with the principles established in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam) and the Family Justice Council’s 2024 Guidance on Responding to a Child’s Unexplained Reluctance, Resistance or Refusal to Spend Time with a Parent and Allegations of Alienating Behaviour.
What is the Modern Approach?
The modern approach shifts the focus away from labels and towards understanding the child’s experience and the evidence before the court.
The court must begin by examining the child’s reluctance, resistance, or refusal to engage with a parent. It must then consider the possible reasons for that response, including:
- Whether the child’s reaction is an appropriate response to abuse, neglect, or harmful parenting;
- Whether there are other factors influencing the child’s views and behaviour; and
- Whether alienating behaviour by one parent has contributed to the child’s resistance or refusal.
Importantly, where allegations of domestic abuse and alienating behaviour are made by either parent, the court must determine the abuse allegations first before considering whether alienating behaviour has occurred.
Key Guidance from Re Y
The judgment provides several important reminders for practitioners:
- Expert Evidence Must Come from Appropriately Qualified Professionals
Courts should generally instruct properly recognised and suitably qualified psychologists unless there is a compelling reason not to do so.
- Alienating Behaviour is Not a Diagnosis
It is not the role of a psychologist to diagnose parental alienation. Rather, their role is to assist the court in understanding family dynamics, parental behaviours, and the child’s presentation and experiences.
- The Ultimate Question is a Judicial One
The key issue is whether one parent has improperly influenced the child against the other parent. This is not a question for an expert to determine. It is a matter for the court to decide based on the evidence.
- Findings of Fact Must Come First
Before relying on expert opinion, the court must establish the relevant facts. Expert evidence should assist the court’s analysis but cannot replace the court’s responsibility to make factual findings.
Conclusion
Re Y marks a significant step in the evolution of the law surrounding alienating behaviour. The judgment reinforces the need for careful fact-finding, appropriately qualified expert evidence, and a child-focused analysis.
Rather than beginning with assumptions about parental alienation, the modern approach requires courts to examine why a child is reluctant, resistant, or refusing contact and to assess all potential explanations before reaching a conclusion. In doing so, the court seeks to ensure that decisions are firmly rooted in evidence and, above all, serve the welfare of the child.
