Children’s Mental Health: a consideration for family law practitioners every week

In 2015, the charity Place2Be launched its first Children’s Mental Health Week and this now takes place in February each year (3-9 February 2025).  Those who work in the family law sphere witness firsthand some of the difficulties that children, sadly, experience with their mental health. Children often struggle to come to terms with the breakdown of their parent’s marriage and become embroiled in disputes between their parents. Cases where there are allegations of alienating behaviours and / or domestic abuse can be particularly difficult for children and may detrimentally impact their mental health. 

In private law children cases the court is directed, under the legislation, to have particular regard to the following factors, all of which will require the court to consider as part of its analysis the mental health of the child:

• The ascertainable wishes and feelings of any child concerned, taking into account to their age and understanding;
• The child’s emotional needs;
• The likely effect on the child of a change in circumstances; 
• Any characteristics the child has which are relevant (this might include previous mental health difficulties); and
• Any harm which the child has suffered or is at risk of suffering. 

The older the child concerned is, the more a court will place weight on their wishes and feelings, and the difficulty for family law practitioners is knowing when a child’s wishes and feelings are truly their own. It is therefore common in private children law proceedings for independent social workers to be instructed to prepare a welfare report for the court. These welfare reports include an analysis of the children’s wishes and feelings, including their mental health and any external factors such as alienating behaviours of either parent. 

In December 2024, the Family Justice Council (“FJC”), produced guidance to family law practitioners on responding to allegations of alienating behaviours. 

The FJC defines alienating behaviours as “psychologically manipulative behaviours, intended or otherwise, by a parent towards a child which have resulted in the child’s reluctance, resistance or refusal to spend time with the other parent.” The impact on the child of such behaviour has been likened to that of emotional or psychological abuse and may therefore detrimentally impact their mental health in the same way.

Allegations of alienating behaviours are often (but not always) raised in response to, or alongside allegations of domestic abuse. The FJC guidance suggests that allegations of domestic abuse feature in at least 50-60% of private law children cases. It is therefore likely that allegations of alienating behaviours feature in a similar number of cases. 

The impact of allegations of domestic abuse and / or alienating behaviours being raised within proceedings and children being exposed to or witnessing domestic abuse and / or alienating behaviours cannot be understated and may well have an impact on the ascertainable wishes and feelings of the child. 

The theme for this year’s Children’s Mental Health week is “Know Yourself, Grow Yourself” with children being encouraged to have self-awareness and to express their emotions. In circumstances in which a child is reluctant, resisting or refusing to engage in a relationship with one parent there may be many reasons for this and the FJC emphasises the care that should be taken to not dismiss the voice of the child in the absence of “compelling evidence” that proves that they have been subjected to psychological manipulation which has impacted their capacity to freely express such wishes and feelings. 

The FJC have put forward proposals for how children’s emotional and mental wellbeing can be better safeguarded in private law children proceedings, including, but not limited to, the following:

1. The Family Court may add the child to proceedings as a party, if appropriate, and appoint a rule 16.4 Guardian to represent them. The child could also be represented separately from the Guardian. This gives the child an opportunity to have their voice heard within the proceedings. 
2. Attempts at re-establishing the relationship between the child and a parent should be considered, including through alternative avenues such as third-party interventions, for example involvement with the child’s schooling, and social media.
3. Psychological assessments of the child, one or more of the parents and carers, or even the whole family, may be appropriate. Any such assessment should be holistic and should comment on any harm which the child may have suffered, what the cause of that harm may be and what support services (including therapeutic support) could and should be put in place to promote the child’s welfare. 
4. A short summary of the Family Court’s decision, written in child friendly terms, may be provided to the child. This can help the child to understand and come to terms with the outcome of the case, especially if the outcome is, or appears to be, contrary to their stated wishes. 

It is the duty of all family law practitioners to ensure that the voice of the child is not lost and that the child’s welfare, including their mental health, is taken into consideration throughout.