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Parental alienation as a breach of human rights

By November 27, 2019February 23rd, 2024No Comments

Yes–it’s another blog on parental alienation. That’s because we feel parental alienation – not Parental Alienation Syndrome – is such an important subject given the potentially catastrophic consequences for affected children and parents. And there have been two interesting articles we’ve come across since our latest blog. So here’s an update…

Firstly, there’s an article in The Conversation by Zoe Rathus, in which she argues that the term has been hijacked by interest groups to discredit mothers in the family court and that it is a “debunked, outdated theory”. The second article is over on the Marilyn Stowe Blog, an acclaimed UK family law blog. There, John Bolch discusses an international case where an alienated mother has won a human rights claim against her government.

Rathus argues “parental alienation” is a gendered expression that is “wielded by fathers’ rights groups and continues to have credibility in the family law system”.  She warns that the term will feature heavily in the coming family law inquiry. We think that’s actually a good thing. Here’s why.

The term “parental alienation” is not defined in Australia’s Family Law Act, but potentially should be included under the definition of family violence. Indeed, a court recently suggested it could be formally regarded as family violence if an element of coercion and control–of the child who is brainwashed and manipulated into holding a damaging view of the other parent—was able to be proved.  Given the consequences for family law matters when family violence is proven, namely the rebuttal of the equal shared parental responsibility provisions—this is important.

And recently, an expert recently told the courts that in their opinion, parental alienation constituted psychological abuse, again a clear form of family violence. In the recent case of Ahsan & Ahsan [court pseudonyms] a father not only perpetrated physical violence against a mother but he also managed to alienate their children from her before court ordered intensive family therapy and custody of the youngest children being awarded to the mother. In the sad case, alienating behaviours are obvious, such as when “the mother could hear the father yelling instructions to [the children over the phone] to disobey her and misbehave”—and he had been very successful at completely turning the children against the mother.

Similarly to Rathus, Canadian law professor Elizabeth Sheehy last year warned that family courts must stop accepting use of the term “parental alienation” because the term has been co-opted by family violence perpetrators to attempt to downplay their violence.

But child-aligning behaviours are undoubtedly seen performed by both genders—is it useful to abandon the terminology? Rathus raises the reasonable fear that parental alienation as a term is “easily misused and is dangerous”.  The confusion over parental alienation vs. Parental Alienation Syndrome has probably not helped the courts.

But court cases have certainly identified and criticised parental alienation by both genders, so it’s hard to agree that it has become a gendered expression.

Interestingly, Professor Sheehy also referred to Canadian research which does not support the conclusion that mothers there make more false allegations than fathers in the family courts. In fact it is the reverse:

“Bala & Schuman’s 1999 Canadian research found that, when accusations made in child custody and access disputes were reviewed, 21 percent of allegations by fathers were judged to be false, while 1.3 percent by mothers were judged to be false….

“Trocme and Bala’s 2005 Canadian research was based on a sample of 7632 cases. It found that 4 percent of allegations of child abuse by children against parents in cases of child maltreatment were maliciously fabricated. In disputed child custody cases, fathers were found to bring 43% of all intentionally-fabricated allegations, while custodial parents (usually mothers) brought 14%.”

Now let’s look at the Marilyn Stowe blog about the alienated mother who won a human rights claim against her government, the Republic of Moldovia. The judgment was delivered in the European Court of Human Rights (ECHR) recently. John Bolch writes:

“The case concerned a claim by a mother that, by failing to take effective measures so as to ensure her access to her children, who had been alienated against her by their father, the Moldovan authorities had breached her right to protection of her family life, pursuant to Article 8 of the European Convention on Human Rights.”

It’s unfortunate that the mother had alleged the children suffered from the wholly-discredited Parental Alienation Syndrome, because this inevitably reduces credibility internationally in countries aware that Parental Alienation Syndrome is a junk science. However, confusion over the term used aside, the father was found to have engaged in parental alienating behaviours with the effect that the children had come to “hate her”.

“The authorities had failed to prevent that, despite her many complaints concerning the father’s actions. She asked for the children to be removed from the father’s family as a matter of urgency, and placed in a placement centre in order to receive psychological assistance.”

While Rathus in The Conversation article mentions custody rulings not taking into account the children’s wishes, we think it’s correct that in parental alienation cases, the children’s wishes are not given as much weight as in other cases, because by definition they have been completely manipulated to hold a certain view. In the Moldovan case, unfortunately, “the courts had transferred custody to the father ‘in part because they had clearly expressed their wish to live with their father and not their mother’”.

But the ECHR judgment found ”the Moldovan authorities did not act with the exceptional diligence required of them, or discharge their positive obligations under Article 8 of the Convention. There had therefore been a violation of Article 8.”

The mother was awarded damages: As Bolch says,  “not, you might think, much at all for the loss of one’s children. However, it must be hoped that the judgment will encourage the relevant authorities everywhere to deal with parental alienation cases with all possible speed and diligence.”

We agree with Bolch. This case would highlight the need for the Australian Government to take parental alienation behaviours seriously, or face similar human rights claims in future. In our view, rather than ‘throw the baby out with the bathwater’, we need to absorb the empirical evidence, support research efforts such as that of the University of Tasmania, continue to analyse and critique Australian court decisions (which may in fact be quite different to American and Canadian ones) and reshape the legal landscape so that parental alienation is reliably identified and dealt with – no matter the perpetrator’s gender – in the family courts.

Child-aligning behaviours do occur and they do represent psychological abuse and therefore family violence. As one expert told a court last year:

“What has been debunked is the idea that there is this neat box that’s called Parental Alienation Syndrome…There is absolutely no doubt at all that children can lose a relationship with a parent because of the actions of the other parent.”

It’s entirely reasonable to accept that both fathers and mothers engage in alienating behaviours and that both fathers and mothers make false allegations. The challenge is to ensure our family courts, with the help of experts, properly recognise cases where such parental behaviours are occurring and quickly implement appropriate measures–because parental alienation needs to be speedily dealt with before the artificial alignment becomes too entrenched to fix. Of course, the delays in the ailing system hinder the rapid resolution of parental alienation matters, so addressing the courts’ chronic time lags remains a huge priority for the Government.

If you need help with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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