Parental Alienation Syndrome: family law's paradigm for child abuse

The controversy over Peter Hollingworth's response to allegations of Child abuse within his diocese provides an opportunity for reflection on the way we respond, as a nation, to allegations of child abuse. In recent times, evidence of systemic abuse and inappropriate handling of them has come to light in a number of institutions in Australia and overseas. In most cases, this has led to the development or refinement of policies and procedures for handling such allegations in ways that try to protect the alleged victim while allowing the alleged perpetrator a presumption of innocence - a difficult balancing act.

However, I would argue that one of the highest institutions in the land, which deals with child abuse on a daily basis, is ill equipped for such a role. The absence of a publicly funded investigative capacity in the Family Court of Australia when there are allegations of child abuse by a parent gives defacto support to the operation of the Parental Alienation Syndrome (PAS) paradigm in the courts.

PAS - invented by American psychologist Richard Gardner - begins from the premise that children who allege serious abuse by a parent are lying and that they are made to lie by an apparently protective parent. Without a publicly funded professional child protection investigative service available to inform the family court, the private adversarial system of family law commonly fails to substantiate allegations of child abuse, thereby systematically producing the outcome that child abuse allegations will be deemed to be false. PAS thus offers violent controlling ex-partners a pseudo-scientific set of "symptoms" to deny allegations of child abuse and pathologise the alleging child and protective parent.

The popularity of the PAS paradigm survives extensive empirical research findings showing that false allegations of child abuse are very much the exception rather than the rule.

It is necessary to distinguish between some practices of "parental alienation" and the content of the Parental Alienation Syndrome paradigm. Generally, the term "parental alienation" in the context of parental separation has come to refer to practices by a separated parent of disrupting and denigrating a child's relationship with their other parent to give expression to their own hostility towards the other parent. These may include denigrating the other parent in front of the child, condemning aspects of the child's appearance or conduct as being just like the other parent, expressing anger if the child speaks positively about the other parent and preventing communication between the child and the other parent.

These behaviours express adult-centred emotions with harmful effects for the children who are prevented from enjoying a relationship with their other parent. Despite the alienating parent's reactions, many children maintain positive feelings for their other parent and may even resent the hostility of the alienating parent, specifically when they have not been exposed to any violence or abuse.

In contrast, expressions of fear, disclosures of abuse, emphatic rejection of the abusing parent and a strong connection with the protective parent are consistent with exposure to abuse yet, paradoxically, are the main symptoms given for the PAS paradigm.

The outcomes of PAS assist child abuse. PAS relies on denying the capacity of children to recognise and articulate their experiences and further denies the child's right to safety, while privileging the rights of the accused parent to enforce a relationship with the child. PAS is a winner with violent parents because (a) it enables the abuser to occupy the role of victim and (b) assists and legitimises their continuing access for abuse.

According to PAS logic, children's complaints of harm by a parent are proof that the child is subject to PAS by the other parent. Gardner's recommendations start from a regime of fines and imprisonment for the "recalcitrant" parent (as he calls mothers) through to removing the child and making it live with the parent the child states has harmed him/her, without contact with the protective parent.

In Australia, mothers who defy court orders exposing their children to further abuse by their father face escalating consequences of education courses, fines, imprisonment and reversal of custody, with restricted and supervised contact. The regime that has been operating in Australian courts mirrors Gardner's recommendations.

Paradoxically this failure to protect children properly from parental violence creates the circumstances where mothers have increasingly fled in preference to handing their children over for abuse during contact. This in turn is used to justify a reversal of custody. In one case a three year old child was taken from her mother - the only parent she had ever lived with, and who had successfully raised two other children from a previous relationship - and ordered by the court to live with her father who suffers from AIDS and has a long criminal record including sex offences. The mother was placed on supervised restricted contact for three days a month.

This regime has remained unchanged for four years, despite the mother's attempts to increase time spent with her daughter and many reports by teachers and others to state child protection services based on the child's disclosures of abuse. At Easter this child, now aged 7, held her mother and the supervisor of contact at bay with a knife and begged her mother to kill her rather than take her back to her father. This father has accused the mother of Parental Alienation Syndrome. This outcome is a consequence of the mother running away with the child in preference to presenting her for contact with a person who the mother saw as dangerous to the child. Such outcomes reinforce the court's power to impose its decisions, and to punish those who disobey.

The court's emphasis on punishing mothers who flee with their children in preference to exposing them repeatedly to abuse replaces the previously paramount principle of the "best interests of the child". The rationale which justifies removing young children from the care of the only parent they have ever lived with and forcing them to reside with the parent they allege has abused them is the paradigm of Parental Alienation Syndrome.

The Australian Family Court Magellan project identified that child abuse issues in the Family Court were rarely without foundation, were often serious and complex and that many cases had not been investigated by the state child protection services. The Magellan project had three elements: the court-dedicated specialist personnel who conducted cases according to a strict timeline; all parties in selected cases were provided with uncapped legal aid, and police and state child-protection services worked in partnership and with specialist training in provide information to meet the Family Court's needs. State child protection services normally work to the Youth Court of the Children's Court and are oriented primarily towards short-term interventions and family reunification. The Family Court is oriented to the long term and must take into account the likely future needs of the child.

The Family Law Council last year recognised the serious current problems for children experiencing abuse in its call for the establishment of a National Child Protection Unit to investigate child abuse allegations in Family Court proceedings. The Family Law Council recommendations also called for greater co-operation between state and federal services around child protection issues and the establishment of a one-court principle such that proceedings involving child contact and residence and abuse issues would deal with all matters in whichever court was deemed most suitable to handle the matter.

Even if a professional accessible service to investigate child abuse allegations in the Family Court is established, the court has considerable discretion over how such findings will be handled. The presiding judge may reject evidence and recommendations presented by the parents or the Children's Representative. Section 68F of the Family Law Act provides a list of factors which the court must consider, but it does not give any one factor weighting ahead of another. The 1996 Family Law Reform Act's emphasis on a child's right to continuing contact with both parents has been noted by family court researchers as having created a "pro-contact" culture in the courts. What is required is legislative change to the Family Law Act to require judges to make decisions privileging the child's safety ahead of all other considerations.

Such provisions have been successfully enacted in New Zealand following a case where a father had been awarded custody of his three children because the wife persistently alleged abuse. The father subsequently killed the three pre-schoolers - an event that a subsequent inquiry found could not have been predicted because no one but the wife had ever alleged he was violent. Most children who are subject to abuse are not killed, however it is worth noting that the context of family separation is the most common scenario of child homicide in Australia, accounting for 35 percent of child killings. The deaths of the three Bristol children led to amendments to the NZ Guardianship Act.

Section 16 (b) subsection 4 of the Guardianship Act provides for a rebuttable presumption of custody or unsupervised contact where a party to proceedings has been violent to a child or adult party to proceedings. If an allegation of violence is raised the court must first establish whether such allegations can be proven on the balance of probabilities. The definition of violence includes physical, sexual and psychological violence. A single act of abuse may establish violence.

Section 16 (b) 5 lists statutory criteria which judges must consider to determine a child's safety. These factors make risk assessment the central focus in children's matters where violence has been established as an issue. The factors considered include the nature and seriousness of the violence, the history and frequency of violence, the harm to the child, the views of the child and the other parent and any steps the violent parent has taken to reduce the risk of future violence.

Legislative reform to the Family Law Act to privilege children's safety alongside the establishment of a national child protection service are two necessary steps in improving outcomes for children from separated families with histories of domestic violence and child abuse. Without an effective system to provide evidence of allegations of abuse and without a primary valuing of children's safety, the paradigm of PAS will continue to provide justification for court-mandated child abuse.