Introduction: contact and domestic abuse

ABSTRACT

This article introduces the special issue of the Journal of Social Welfare and Family Law on contact disputes and allegations of domestic abuse. It first describes the aims and findings of the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices at which the papers in the special issue were originally presented. It then outlines the position in England and Wales regarding allegations of domestic abuse in child arrangements cases, highlighting the difference between the ‘law in the books’ and the ‘law in action’. Thirdly, it discusses the research evidence on another prominent international approach to domestic abuse allegations – legislative presumptions against custody or unsupervised visitation/contact for abusive parents. The experience of presumptions in the USA and New Zealand suggests that a similar gap between ‘law in the books’ and ‘law in action’ exists, together with potential problems of legislative drafting. Finally, the article outlines the contributions of the other papers in the special issue to our understanding of international approaches to ensuring safety for children and resident parents in family proceedings where allegations of domestic abuse are raised.     

A history of the use of the concept of parental alienation in the Australian family law system: contradictions,collisions and their consequences

ABSTRACT

This paper presents insights into the history and current deployment of the concept of parental alienation in the Australian family law system. It begins in 1989, when an article on parental alienation syndrome was first published in an Australian law journal. It then traces aspects of the socio-legal and social science research, gender politics, law reform and jurisprudence of the following 30 years, paying attention to moments of significant change. The impacts of major amendments that emphasise the desirability of post-separation shared parenting outcomes in 1996 and 2006 are specifically considered. More recently, in 2012, reforms intended to improve the family law system’s response to domestic and family violence were introduced. The history reveals an irreconcilable tension between the ‘benefit’ of ‘meaningful’ post-separation parent-child relationships and the protection of children from harm. When mothers’ allegations of violence in the family are disbelieved, minimised or dismissed, they are transformed from victims of abuse into perpetrators of abuse – alienators of children from their fathers. Their actions and attitudes collide with the shared parenting philosophy. This is arguably an inescapable consequence of a family law system that struggles to deal effectively with family violence in the context of a strong shared parenting regime.     

‘It’s Not OK’, but ‘It’ never happened: parental alienation accusations undermine children’s safety in the New Zealand Family Court

ABSTRACT

While the public campaign slogan in New Zealand when referring to family violence, is ‘It’s Not OK’, many women in New Zealand report that the Family Court prefers the catchphrase ‘It never happened’. When women and children escaping violence and abuse reach out to the New Zealand Family Court for protection believing the justice system will help them, they often enter an alternative reality where they are not believed and are subsequently made less safe. This is particularly so for those women whose well-founded fears for their children’s safety get reinterpreted as evidence of a deliberate attempt to alienate the children from their fathers. The Backbone Collective, an independent organisation, surveyed New Zealand women about their experiences in the Family Court, finding that many women reported being accused of parental alienation. This paper investigates the sources of these allegations of parental alienation and how they impact mothers and their children. We argue that the use of parental alienation in the New Zealand Family Court is undermining the international rights of children.     

U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?

ABSTRACT

Family court and abuse professionals have long been polarized over the use of parental alienation claims to discredit a mother alleging that the father has been abusive or is unsafe for the children. This paper reports the findings from an empirical study of ten years of U.S. cases involving abuse and alienation claims. The findings confirm that mothers’ claims of abuse, especially child physical or sexual abuse, increase their risk of losing custody, and that fathers’ cross-claims of alienation virtually double that risk. Alienation’s impact is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim alienation. In non-abuse cases, however, the data suggest that alienation has a more gender-neutral impact. These nuanced findings may help abuse and alienation professionals find some common ground.     

Parental alienation (syndrome) in child custody cases: survivors’ experiences and the logic of psychosocial and legal services in Italy

ABSTRACT

Parental alienation (syndrome) is a controversial issue, criticized by experts in different fields. However, this concept is often used by professionals and is frequently cited in courtrooms. This qualitative study focuses on parental alienation and explores women’s experiences as well as legal and social services’ practices in child custody cases. Semi-structured interviews were conducted with separated mothers who were victims of intimate partner violence, and with social workers and psychologists/psychiatrists designated by courts to evaluate parenting skills. Expert reports, psychological assessments and legal documents were also analysed. Results show that professionals endorsed parental alienation and considered it a ‘feminine problem’. Women were often blamed and labeled as ‘engaging in parental alienation’ when they were trying to ensure their children’s safety. Children’s accounts were interpreted as being a result of their mothers’ manipulation. In contrast, fathers were treated as victims of vindictive women who want to keep children to themselves. Men’s violent behaviours were not considered, and their role as fathers was seen as ‘inviolable’. These practices seem to reflect the ‘good-enough father’ approach, according to which the presence of the father is essential for children’s development, regardless of his violent behaviours.     

Professional responses to ‘parental alienation’: research-informed practice

ABSTRACT

Parental alienation was historically a term rejected by courts in England and Wales, but lawyers and social workers have noted an increase in the incidence of its use, possibly driven by campaign groups and media narratives. The two statutory services that provide independent social work advice to courts in England and Wales, respectively, on children’s best interests in parenting disputes, have taken different approaches to developing practice guidance in response to concerns about the recent use of alienation terminology. A review of international research and domestic case law was undertaken as part of the development of guidance in Wales. This review revealed a dearth of reliable evidence on the concept of parental alienation, its prevalence, effects and measures for intervention. This article builds on that review and recent developments to discuss the progress being made in practice to counter myths about alienation and considers how best to support practitioners in resisting pressures to conform to these powerful narratives.     

Associations between Parent and Child Reports Of Interparental Conflict/Violence And Child Difficulties in A Family Mediation Setting*

We examined the association between parents’ (N = 52 mothers and 52 fathers) and children's (N = 27) reports of interparental conflict and child difficulties in a family mediation setting. Parents’ reports of conflict were moderately associated with children's reports of exposure to parental conflict, but only fathers’ reports of conflict were associated with children's reports of negative responses to parent conflict. While mothers and fathers agreed on their child's difficulties, only mothers’, not fathers’, report of child difficulties were moderately related to child reports of child difficulties. Mothers’ and fathers’ reports of conflict generally were not strongly associated with reports of child difficulties. In contrast to parent reports, children's reports of exposure to parents’ conflict were moderately and significantly related to self‐reported child difficulties and moderately related to parents’ reports of child academic difficulties. The magnitude of the association between the child's report of interparental conflict and self‐report of difficulties was stronger than the association between parent report of conflict and parent report of child difficulties, suggesting that parents may not fully understand their child's exposure to parent conflict/violence or the problems their child is experiencing.

Key Points for the Family Court Community:
• Family law stakeholders prioritize the creation of parenting arrangements that are in the best interest of the child; however, it is unclear how to gather information about the child and the child's perspective in order to inform such arrangements.
• The study results suggest that parents may not agree with each other or with the child about important family issues, such as parent conflict and child difficulties. For example, parents may not fully understand their child's exposure to parental conflict/violence when in the midst of custody negotiations.
• More research is needed to determine the best method for gathering information about the child during custody proceedings. In the meantime, it is important to gather information from multiple sources and to consider the agreement and differences across such sources of information.

     

The affective burden of separated mothers in PA(S) inflected custody law systems: a New Zealand case study

ABSTRACT

Custody law systems across the Anglo-West are increasingly characterised by the overt and covert use of parental alienation (syndrome) as an aid to the governance of post-separation mothers. Difficulties with care arrangements within PA(S) inflected custody law systems are often regarded as evidence of mothers’ alienating behaviours, resulting in a range of remedial, coercive and punitive censures, including losing resident parent status. I argue here that the synergistic interaction between custody law and PA(S) creates an affective burden for post-separation mothers. Drawing on the voices of mothers in contested custody cases, I show that their affective burden consists of negative emotional states for themselves and their children, emotion work in relation to these states, and court required emotion work in support of father-child relationships. The latter mitigates the risk of being found to be an alienator and losing what matters most to them – their children.     

CHILDREN,THE UNCRC,AND FAMILY LAW IN ENGLAND AND WALES

There is no doubt that, overall, there has been a great deal of activity in relation to children's rights under the United Nations Convention on the Rights of the Child (UNCRC) since it was ratified by the UK government in 1991. Of particular significance in the context of family law, however, are the provisions of Article 12, which have in many ways proved to be more problematic than other provisions, not least because, in the context of family law, children's participation rights are necessarily juxtaposed with the long‐standing and hitherto unchallenged rights of parents to make important decisions about family life. The reorganisation in 2001 of the family court welfare services in England and Wales with the creation of the Children and Family Courts Advisory and Support Service (CAFCASS), generated a new impetus for the consideration of children's participation rights and, at an organizational level, considerable progress has been made in embracing the provisions of the UNCRC. More problematic, however, is the acceptance of children's participation in making decisions about their futures by adults using and working in the family justice system. At the level of the courts, judicial attitudes are slow to change and in England, as court judgments often demonstrate, these are firmly rooted in a view of children as being incompetent in such issues; at the level of parents using the system, it is arguable that new discourses about the best interests of the child serve as a proxy for continuing discourses about parents’ rights that have become evident, most recently, in the context of an increasingly influential fathers’ rights lobby; and at the level of welfare practitioners, recent research also demonstrates that, although the rhetoric of children's rights is widely accepted, the willingness and ability to make these real in the context of family proceedings is, for a variety of reasons, less in evidence.     

Predictors of Child Abuse Potential Among Military Parents: Comparing Mothers and Fathers

The present study examines the predictors of child abuse potential for at-risk fathers and mothers serving as active duty Army members and their spouses. Although fathers are perpetrators of child physical abuse and neglect in a substantial portion of reported cases, what is known about factors associated with child maltreatment comes almost exclusively from studies of perpetrating mothers. Thus, the inclusion of a large sample of fathers in the present study makes a significant contribution to the extant literature. Participants were 175 fathers (93% active-duty) and 590 mothers (16% active duty) of young children enrolled in an Army-sponsored home visitation program. Regression analyses indicated that there were both common and unique predictors of child abuse potential for mothers and fathers. Common predictors included depression, parental distress, and family conflict. Low family expressiveness was predictive only for fathers, whereas marital dissatisfaction, low social support, and low family cohesion were predictive only for mothers. Possible reasons for these gender differences and the implications of these results for child maltreatment interventions are discussed.     

Section 8 orders on the public-private law divide*

While section 9(2) of the Children Act 1989 prevents a Local Authority from applying for a child arrangements order directly, a case file study of residence and contact orders made in 2011 found that a significant number of applications for residence orders in the County Court were supported and sometimes even instigated by local authority children’s services (Harding & Newnham, 2015). The findings of the study demonstrate that residence orders often formed part of solutions offered to the family and can even operate as an alternative to formal public law remedies in situations where the parents are no longer able to provide care, and grandparents or other relatives take over. In these ‘hybrid cases’ private law orders are used to resolve situations on the fringes of public law action and, in some cases, divert cases from voluntary accommodation or formal care proceedings. This article raises questions about whether cases are being diverted to private law remedies in an appropriate manner and argues that closer scrutiny of the practice is required to ensure that the rights of parents, children and kinship carers are appropriately respected.     

National self-image as an obstacle to ensuring children’s rights in the context of domestic violence and family law – the case of Sweden

ABSTRACT

The aim of this paper is to highlight and discuss contradictions and challenges in the current policy and practice regarding fathers’ violence towards mothers and children in the Swedish welfare state. In particular, professional discourses and understandings of domestic violence in disputes about contact, custody, residence and maintenance, following parental separation, are analysed. My research suggests that abusers find ways to manipulate professionals and get them unwittingly to enable their continued control of victimised mothers and children. One conclusion is that oppression is maintained through processes of familialisation and selective repression. These discursive practices reproduce intersectional inequalities and, in doing so, in many cases result in the administration rather than prevention of further violence.     

Parental Alienation in U.S. Courts, 1985 to 2018

Courts have been dealing with alienating behaviors in high conflict family litigation for hundreds of years. Experts in the behavioral sciences have been writing about mothers and fathers manipulating their children to disparage the other parent for more than seventy years. But in the last two decades some social scientists and legal professionals have questioned the legitimacy of parental alienation as a concept and its admissibility in child abuse and child custody litigation. This study was designed to examine the extent to which courts in the United States have found the concept of parental alienation material, probative, relevant and admissible. Thirty‐four years of cases were found with a WESTLAW query and analyzed. Cases were selected for study only if the record reflected that a judge or an independent expert found the concept of parental alienation to be of value in the litigation. Results illustrate increasing awareness of the concept and document its admissibility in every one of the United States. The numbers, sex of the alienating parent and prevalence of significant custody changes are discussed. Limitations inherent in this form of quantitative analysis are also discussed with recommendations for future research.     

No longer a civil matter? The design and use of protection orders for domestic violence in England and Wales

ABSTRACT

This paper assesses the design and use of protection orders for domestic violence in England and Wales. It draws on data from 400 police classified domestic violence incidents and 65 interviews with victims/survivors, as well as new analysis of government justice data from England and Wales, to address a gap in literature on protection orders.

The paper identifies an increasing civil-criminal ‘hybridisation’ of protection orders in England and Wales, and argues that a dual regime has developed, with orders issued by police and/or in criminal proceedings increasingly privileged (and enforced) over victim-led civil orders. Whilst protection orders are being used – as intended – flexibly to protect domestic violence victims, the way they are applied in practice risks downgrading domestic violence in criminal justice terms.

The conclusions are especially timely in light of current Government proposals to rationalise protection orders by introducing a single overarching Domestic Abuse Protection Order in England and Wales.     

Parental Representations in the Play of Preschool Aged Witnesses of Marital Violence

The play of young children has long been used clinically to understand children’s experiences and inner feelings. More recently, children’s play has been examined quantitatively to understand differences due to varying backgrounds, family relationships, etc. Forty preschool children (21 girls and 19 boys) aged 27 to 71 months from families with histories of domestic violence were observed using a play interview, The MacArthur Story Stem Battery, to determine if severity of violence, frequency of visitation with their previously violent fathers, and mother-child relationship functioning impacted how parents were represented in play. Overall, girls represented their parents more positively regardless of other family circumstances. Boys, especially those who did not visit regularly with their fathers, had negative representations of their mothers. Severity of violence did not predict negative parental representations in the sample.     

The legitimization and institutionalization of ‘parental alienation’ in the Province of Quebec

ABSTRACT

This article examines the legitimization and institutionalization of ‘parental alienation’ discourse in the Province of Quebec, Canada. It draws upon an analysis of 31 documents (legislation, research reports and articles, training documents, professional documents and media articles) and interviews with 13 key informants, who were selected based on their knowledge of ‘parental alienation’ in research, policies or practices. The research findings reveal that the legitimization and institutionalization of ‘parental alienation’ discourse is a more recent process than in other provinces and countries, but that it has now permeated child custody as well as child protection proceedings. Academic researchers and media have been instrumental in this legitimization and institutionalization process, while the role played by changes to child protection policies is more ambiguous. The findings reveal researchers’ and experts’ tendency to distance themselves from Gardner’s controversial work on ‘parental alienation syndrome’ and to address the critiques by proposing new approaches and new concepts. However, the terms ‘parental alienation syndrome’, ‘parental alienation’ and ‘alienating behaviours’ are often used interchangeably, and assessment practices tend to rely on similar indicators.     

Children's Participation in Family Law Proceedings: A Step Too Far or a Step Too Small?

The Children (Scotland) Act 1995 established children's rights to have their views considered in family law proceedings. These rights go further than elsewhere in the UK: in requiring parents to consult their children when making any ‘major decision’, in creating a range of mechanisms for children to state their views and through facilitating children becoming party to legal proceedings if they are legally competent. Such rights are not without controversy, either in abstract (Is it in children's best interests to be involved in court proceedings? Should children have such rights?) or in practice (Do children and parents know of these rights and accompanying duties? How do legal professionals judge a child's competency?). This paper explores such controversies, using findings from a feasibility study undertaken with children, parents and legal professionals.     

Specialist domestic violence courts for child arrangement cases:safer courtrooms and safer outcomes?

ABSTRACT

Child arrangement cases in England and Wales are dealt with in the ordinary family courts. Whilst a special practice direction is applicable to child arrangement proceedings where there are allegations of domestic abuse, there is no specialist domestic violence court in the family justice setting. However, court specialisation is a feature of the criminal justice system and has been demonstrated to have success in domestic violence cases. Some of the potential benefits of specialisation, such as the provision of safer courtrooms, might be transferable to the family justice setting. Given the well documented problems of ordinary courts dealing with child arrangements in domestic violence cases, this article considers whether court specialisation could provide victims with safer courtrooms and safer outcomes in child arrangement cases.     

Best Interest of the Child and Parental Alienation: A Survey of State Statutes

State statutes regarding the best interests of the child (BIC) in deciding disputed custody were reviewed and independently coded with respect to three issues (i) the child's preference and any limits (ii) parental alienation and (iii) psychological maltreatment. Results revealed that many states allowed for the child's preferences to be considered and none qualified that preference when undue influence has occurred; parental alienation as a term was not found in any state statutes but 70% of the states included at least one BIC factor relevant to its core construct of the parent supporting the child's relationship to the other parent; and many states included a history of domestic violence or child abuse but only three states explicitly mentioned psychological maltreatment. These findings highlight yet another way in which the BICS factors lack specificity in ways that could negatively impact children caught in their parents’ conflict.     

“Memorialization Laws in the United Kingdom: A Response to Fear or an Increased Occurrence?”

Issues of sexual abuse, predation and rape have received an increased degree of attention over the last decade and as a result have overshadowed similarly offensive crimes. Various highly publicized cases of sexual violence against women and children have gripped both the United States and the United Kingdom and have resulted in the implementation of sexual violence laws. Media coverage of an ‘epidemic’ of sexual violence has led some to question whether the frenzy surrounding these publicized cases has created a “fear factor” among parents and caregivers, begging the question as to whether the incidence of sexual violence has increased or whether the heightened sensitivity is a result of increased media reporting. This article examines approximately 12 years of aggregate sexual abuse prevalence data (crimes reported to the police) in England, Wales, Scotland and Northern Ireland, and compared prevalence change points and sexual offense law implementation. The article then examines the possible theory of whether Sarah’s Law could potentially to be a result of increased fear or a moral panic. Findings indicate sex crime rates were declining prior to the law’s implementation, lending cautious support to the proposition that the genesis of Sarah’s Law may have been due to fear, rather than actual increases in sexual crimes.