Cowboys and Aliens
The world of juvenile and domestic relations is a secret world where the courts treat public scrutiny with open contempt and hostility. The pretense for this secrecy is to protect families from embarrassing disclosures about their personal and private lives. The real function, however, is to protect the court from public scrutiny and oversight.
Michael A Fox (Fox, 2004).
While the media expose the abuse of the criminal justice system in cases of false allegations of rape and sexual harassment, there is never mention of feminist abuse of the law; and it isn’t merely the justice system which has become feminised: politics, the media, education, academia: all must now espouse this feminist programme. In an orgy of anti-paedophilia hysteria allegations of ‘kiddie-fiddling’ are hurled at anyone who rejects the orthodoxy. This is a displacement activity in a society in which paedophilia remains the only sexual deviation punishable under the law. Paedophile hysteria manifests itself through public demonstrations, dawn raids, computer seizures, press leaks and the hounding of old and forgotten ‘celebrities’. Doubts are interpreted as sympathy; investigations turn into one-sided show-trials by media.
Here, Hanisch’s feminist slogan ‘the personal is political’ becomes reality; politicised wives subject men who have been charged with no criminal offence to penalties imposed by child protection, domestic violence and child support enforcement agencies which target men exclusively and operate outside the protections of due process and the courts. The Child Support Agency is but one body given powers enabling it to operate independently of the justice system. Without evidence or trial or the presumption of innocence fathers are branded paedophiles, wife-beaters, rapists, child-support-evaders and deadbeats.
In the early 1980s US psychiatrist Dr Richard Gardner coined the phrase Parental Alienation in order to account for children who express a distrust or even hatred of their ‘contact’ parent. The idea caught on and entered into common usage; UK child psychiatrist and regular expert witness Kirk Weir defined alienation like this,
There are children who show an extraordinary degree of animosity towards a parent with whom they once had a loving relationship. Most of these children will show some or all of [a cluster of psychological responses]. Within an individual child (and between children in the same family) the presence of the features can vary rapidly over time and place, but in their full manifestation are so surprising and unique as to be unforgettable. The proposed term ‘Alienation’ applies only to the cluster of psychological responses in the child with no need to presume a deliberate campaign of denigration by one parent. There is now research data supporting a multifactorial aetiology for ‘Alienation’ following parental separation, involving contributions from both parents and vulnerabilities within the child (Warwickshire County Council v TE & Ors, 2010).
An alienated child may be said to exhibit ‘Parental Alienation Syndrome’ (PAS). Nicholas Wall illustrates a typical case by quoting extensively from the report by Dr Weir,
Even the most neutral question became an opportunity for a torrent of vilification against the father. The interviews had an ‘orchestrated’ feel; a sense that all knew this was an opportunity to leave me in no doubt as to their feelings. All were supporting each other and there was not a chink between them. That a child of 11 should feel it acceptable to say (without comment from his mother or siblings) that he wished his father dead says a great deal about the atmosphere which the mother has allowed to develop. The family dynamic was obvious. The alliance against the father would be difficult for an individual to break, particularly the youngest. It was difficult to believe the mother was promoting contact with the father. It was clear she loathed him and regarded him as an emotional danger to her children (Re W (A Child), 2008).
The theory immediately provoked a backlash; Gardner was accused of paedophilia and has become a controversial character; rejecting the theory along with the man, however, would be to throw out the baby with the bathwater, and has encouraged those who would deny contact to accuse desperate fathers of paedophilia if they try to use Gardner’s theories in their defence. Opponents of the use of PAS in family cases claim variously that it has been discredited and debunked by the American Psychological Association (APA) and pointed out that PAS was not included in the APA’s definitive publication DSM-IV. Opposition to inclusion was ferocious: in his column in the March 2010 edition of Clinical Psychiatry News, Dr Paul J Fink claimed that campaigners only wanted PAS to be included because they ‘don’t like to be interfered with when they are sexually abusing their children’. After complaints to the journal and to his employer, Temple University in Philadelphia, by US group Families and Fathers (now the National Parents Organization), Fink withdrew his allegation. These fathers are guilty only of picking the wrong saviour, an easy error when so few are prepared to speak up for the falsely accused. Since Gardner’s death in 2003 other experts have acknowledged and researched the phenomenon of PAS.
Although it doesn’t use the expression ‘parental alienation’, the DSM-V, published in May 2013, contains a category of ‘child psychological abuse’ defined as ‘non-accidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child’ and acknowledges that a child’s perception of an alienated parent ‘may include negative attributions of the other’s intentions, hostility toward or scapegoating of the other, and unwarranted feelings of estrangement’.
Towards the end of the 20th century an explanation of parental alienation had become a common way for the courts to explain a child’s opposition to contact while a mother’s opposition was attributed to ‘implacable hostility’, which is a legal diagnosis, and not a psychological one. The courts’ presumption of contact was a strong one and the bar was set high if it was to be overcome; contact was regarded as a child’s fundamental right (Re W (A Minor) (Contact), 1994); Nicholas Wall had decided that ‘as a matter of principle, domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can only be one factor in a very complex equation’ (Re H (Contact: Domestic Violence), 1998). A feminist counterattack on this position developed; it sought to undermine the position that contact was generally good for children and to show instead that it was fraught with danger, it tried to impose the feminist paradigm of domestic violence onto family proceedings in which violence is patriarchal and child abuse takes place only in a context of the abuse of women; it was particularly concerned with the court’s demand for evidence and with its apparent rejection of the concept of the risk of future harm. In 1999 the feminist academic Brenda Hale had drawn attention to the lack of clear evidence for the benefits of contact with a non-resident parent (Hale, 1999) and feminists wanted to take this further to show that contact was actually harmful; where there was no evidence of harm they circumvented this by predicting ‘future harm’.
The most outrageous episode in this campaign was the now infamous 2004 report, Twenty-Nine Child Homicides, drafted by the Women’s Aid policy officer, Hilary Saunders, which purported to show that court-ordered contact had time and again resulted in violent child homicide and that the family courts were so irresponsible and so biased in favour of fathers that they were knowingly sending innocent children to their deaths (Saunders, 2004). Saunders claimed 29 children had been killed by their fathers during contact (and one during residence) over the preceding 10 years. She claimed 5 of these children had been murdered merely so the father could ‘take revenge’ on the mother. The judiciary was alarmed by the allegation made against its members. In 2006 judge Wall published a review of Saunders’ claims; he found that 18 of the 29 children had never been subject to any court proceeding at all; in only 5 of the cases had the children been killed during court-ordered contact; and in only 3 cases could it be argued that the court could reasonably have made a different decision.
He concluded, ‘I am in no doubt that all the contact orders in the cases concerned were made in good faith’ (Wall, 2006). Women’s Aid subsequently revised their claim down to an arbitrary 11 deaths (Aitkenhead, 2006). They protested, using a familiar argument, that ‘if it had not been for Hilary’s research, it is unlikely that the concerns would have achieved the attention they did’ (Barron, 2007). This is a tautology: of course a gross exaggeration will receive greater attention than the simple truth. Wall’s review did nothing to put an end to the campaign against contact, and the Saunders report continues to be quoted and has been influential in perpetuating the myth that court-ordered contact with fathers is hazardous to children.
It is in this context that one needs to understand the influential report commissioned from two child psychiatrists, Claire Sturge and Danya Glaser, to help resolve four cases in the Court of Appeal (Re: L (Contact: Domestic Violence), Re: V Contact: (Domestic Violence), Re: M (Contact: Domestic Violence) and Re: H Contact: (Domestic Violence), 2000) (Sturge & Glaser, 2000). This report was dominant in the development of the CAFCASS risk assessment and in the practice direction on domestic violence. It does not carry the authority of its authors’ ruling body, the Royal College of Psychiatry, and has neither been debated nor adopted by them: it remains, in effect, no more than a personal statement.
The report is fundamentally driven by the doctrine that the position of the ‘primary carer’ is unimpeachable and her moral supremacy incontestable. The crime of domestic violence is considered a transgression against her, and so its impact on the child is viewed in the context of the effect on her rather than directly on the child, thus the effect on the child of witnessing violence against his mother acquires undue significance. Brenda Hale contrived to incorporate this doctrine into the Children and Adoption Act 2002.
An application by a father to have contact with his children is regarded with suspicion because access to the children can take place only through the mother, and the impact on the mother of the application is what matters to the authors, whilst the right of the child to have contact with his non-resident parent is secondary. Sturge and Glaser advocated that the court should therefore begin by demanding to know the motivation of such an application, stating that contact should take place only where it benefits the child. While listing briefly some of the benefits conferred by contact with a non-resident parent, the bulk of their evidence is concerned with the risks posed: claiming it has the potential to escalate discord, undermines a child’s stability and his sense of wellbeing, causes conflicts of loyalty and gives a child the sense that the conflict is his responsibility. The authors conclude that contact within a contested contact case will always be harmful, and should only take place where it is supportive to the resident parent, i.e. the mother,
If anything the assumption should be in the opposite direction and the case of the non-residential parent one of proving why he can offer something of such benefit not only to the child but to the child’s situation (i.e. act in a way that is supportive to the child’s situation with his or her resident parent and able to be sensitive to and respond appropriately to the child’s needs), that contact should be considered.
The consequence of the Sturge and Glaser report is that their approach, originally taken in a context of alleged domestic violence, has been applied indiscriminately to any case in which there are allegations, and in effect that means all but the simplest cases. Contact is reinterpreted not as the child’s right but as a father’s unreasonable, domineering intrusion into the mother’s new life. The question of what purpose is to be served by paternal contact must be answered in every case, regardless of whether there is violence. Sturge and Glaser’s demands condemn parents to repeat the past and prevent progress and resolution; they insist that if contact is to take place at all the father must acknowledge his perpetration of violence and his responsibility for it; he must accept the inappropriateness of domestic violence in the context of parenting and its effect on his child; he must fully commit to his child’s welfare and express his regret and his desire to make reparation to the mother. This insistence that the father heal his relationship with the mother before contact can take place is misguided: the relationship has ended and the parties must be allowed to move on – little of this is child-centred, it elevates the mother’s interests over the child’s and is deeply humiliating to the father, especially where allegations are false. In contact situations domestic violence against the mother is largely irrelevant and has limited implications for parenting; parents involved in contact disputes do not live together and scarcely see each one another, common sense provisions can easily be introduced, for example to arrange handovers without parents having to meet, making opportunities for domestic violence non-existent or rare. Violence actually decreases where parenting is shared (Halla, 2011).
One of the most controversial aspects of the report is its blunt statement that parental alienation syndrome simply does not exist, which at least avoids the necessity of having to argue the point. In support of this position Sturge and Glaser cite just one authority, Kathleen Faller, a social worker from Michegan. This stance enables the authors to give the child’s wishes undue credence and to claim that countering a child’s wishes not to have contact is insulting and discrediting to the child and should happen only where there is a real prospect of the child changing his view. Again they cite one isolated authority to support this position, the Oxford academic John Eekelaar, co-director of the Oxford Centre for Family Law and Policy (OXFLAP), a hothouse for anti-shared-parenting propaganda and a resource relied on increasingly to produce reports supportive of the status quo. Not everyone concurs with the Sturge and Glaser report: consultant psychologist Ludwig Lowenstein writes about the process of parental alienation,
Sturge & Glaser would accept the right of the child to refuse contact with a parent and they consider it best to act upon it. I would strongly disagree. It is here not the child giving the opinion but the alienator! It must be remembered that the child is under the total control of the custodial parent. It must be necessary to look beneath what the child claims is a decision for not wishing contact with a parent.
Sturge & Glaser prefer a slow, gradual process, sometimes commencing with indirect contact, to supervised contact leading by slow steps to direct contact. This approach is unlikely to be effective since during all this time, the alienation process continues unabated. Using the Sturge and Glaser method the child’s views are not altered and cannot be altered. The child’s attitude and behaviour often becomes worse… Such behaviour is encouraged directly or subtly against the now hated former partner (Lowenstein, 2006).
The Sturge and Glaser report prompted a response from the Family Justice Council, Everybody’s Business – How applications for Contact Orders by consent should be approached by the Court in cases involving domestic violence, and these recommendations were passed to the President of the Family Division. The Family Justice Council (FJC) is a 30-strong quango of senior family judges, lawyers, social workers and paediatricians which sits between the family courts and Government. Its remit is to monitor the effectiveness of the family justice system and advise on reform. The sole representative of parents on the council is Bridget Lindley, who works for the Family Rights Group, a charity working with parents whose children are involved with social services. There is no representation for parents involved in private family law. It has adopted a position firmly opposed to shared residence, based on the personal opinion of a single committee member, and contrary to all available evidence, ‘The child mental health specialist member of the Children in Families Committee [Elizabeth Gillett] expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents’. It concluded, ‘The Committee would prefer to see them made only in exceptional circumstances’ (Family Justice Council, 2011).
In 2004 the FJC produced a research paper, Child contact with non-resident parents, by Joan Hunt and Ceridwen Roberts – also members of OXFLAP – which claimed that paternal contact wasn’t necessarily good for children (Hunt & Roberts, 2004). This paper relied on a selective and incomplete reading of research by Professor Marjorie Smith whose report said,
There was no statistically significant association between whether the child had contact with the non-resident parent or not (regular contact, irregular contact, or no contact in the last year), nor, for those children who had seen their non-resident parent in the past year, was there any relationship with the frequency of contact. Similarly, there was no association between children’s accounts of their well-being and whether they regularly stayed with the non-resident parent, or not.
This gnomic statement has been interpreted to justify the assertion that contact is not beneficial to children. It is important to recognise, however, that the report was about contact between children and step-parents – who have often been shown to represent an additional risk – and not their natural parents; it said, ‘there was evidence that for some children in step-families the presence of a step-father created additional complications related to contact with the non-resident fathers’. The unreported part of the paper continued,
There was, however, some evidence that the nature of the relationship with the non-resident parent was important. Children who viewed their relationship with their non-resident father as the same as before (and him as just like a father), had significantly lower symptom scores (indicating greater well-being), than children who felt that their relationship with their non-resident parent had changed in some way… Similarly, children who reported that they enjoyed contact with their non-resident father also had higher levels of well-being (demonstrated by lower symptom scores) than those who had mixed feelings about contact, or did not enjoy it.
Of particular concern to the FJC were three cases – TB, CF and OF – covered by Nicholas Wall in his response to the Women’s Aid 29 Child Homicides report. In TB the Court had made a consent order despite the fact that contact had previously been suspended after the child telephoned his mother to say his father had hit him. There was a lack of judicial continuity in the case. In the case of siblings CF and OF numerous allegations of violence and assault had been made, including the charge that the father had raped the mother at knifepoint. Despite this, interim contact including staying contact was ordered, contrary to the recommendations of the Court Welfare Officer. On the children’s first overnight contact visit the father hanged his children and killed himself.
These were extreme and exceptional cases in which contact had been ordered by consent – the mothers had agreed to contact. They involved dysfunctional families in which violence and drug-taking was habitual. The FJC nevertheless applied their findings to all families, saying in Everybody’s Business, ‘there is no empirical evidence of the positive benefits of contact per se’, and citing as their source the flawed Hunt and Roberts report. The FJC ignored any reference in the report to evidence for the benefits of contact. They then made recommendations which were to be applied to every case: they equated the child’s welfare with protection from paternal violence and advocated a change in court culture to approve contact only where it could be shown to be safe. They sought new court forms which would enable courts to identify where DV was taking place and obtain information earlier; this led to the new C1A form which encourages litigants to submit allegations at the start of proceedings before the court has invited such evidence; this is inflammatory and damaging to any possibility of reaching agreement without going to an all-out contested trial. In 2011 the form was redesigned to omit any requirement to provide evidence of the alleged abuse or violence.
The 1989 Children Act had been intended to introduce a non-interventionist approach in which courts would not make orders unless compelled to do so; orders by consent were expected to encourage parents to come to the courts with their own suggestions for settlement. The FJC concluded – on the evidence of two atypical cases – that this constructive approach was flawed and meant insufficient attention was paid to the safety of children and of their resident parents.
The Hunt and Roberts report had already cast doubt on the benefits to children of paternal contact; it emphasised the quality of contact over the quantity: contact with a loving and supportive parent was good; contact with a parent accused of violence was bad. The shift of emphasis onto domestic violence meant all applications for contact now had to argue why contact would be beneficial to the children. The systemic response to the effect of domestic violence on children who experience or witness it has now become disproportionate, and the measures introduced – new forms, risk assessments, revised training and procedures – place so many obstacles in a father’s path that a simple application for contact is now interpreted as an act of domestic violence in itself. The new Private Law Programme, introduced in 2010, is predicated on the wicked assumption that a parent seeking contact intends harm to his child. The obsession with ‘safety’ means that other matters are given reduced prominence, with the result that orders are not always practicable or enforceable. Far from being impartial and independent the Family Justice Council has shown itself to be partisan and unreliable.
Since the Children Act alienation has become an effective strategy for gaining custody, because the Act demands that courts take greater account of the child’s expressed wishes. This is a policy which appears to make sense, and forms the basis of the CAFCASS Needs, Wishes and Feelings assessment, but in practice it can be dangerous to the child if the investigating officer is not familiar with or rejects the concept of alienation. In alienation cases the child’s ‘wishes’ are not his own but are those of the alienating parent. A parent who prevents contact can avoid the charge of contempt by maintaining the child doesn’t wish to see the other parent; a CAFCASS officer will investigate and confirm this, the court will take the child’s ‘wishes’ into consideration and stop contact. Contact may well not resume again, if at all, until the child is old enough to make decisions independently of the alienating parent.
No provision was allowed in the Act for enforcing a contact order once it was breached; provisions in the Children and Adoption Act 2006 designed to remedy this remain largely unused (Trinder, McLeod, Pearce, Woodward, & Hunt, 2013a). The effect is that the welfare of the child, as decided by the court, has become subordinate to that of his resident parent – usually the mother; the child’s welfare is assumed to depend on the resident parent’s, so satisfying her demands has come to be the common way in which the courts have interpreted this prerequisite. In a 2001 speech the President of the Family Division, Elizabeth Butler-Sloss, stated that to put a mother’s interests first was to put the child’s interests first, ‘the protection of the primary carer for the benefit of the child is of primary importance’ (Moxon, 2008).
The feminist conflation of the child’s rights with its mother’s, the Sturge and Glaser presumption of paternal malignity, the FJC belief that shared parenting only benefits non-resident parents, the OXFLAP promotion of quality at the expense of quantity – all conspire to buttress the lone parent model of post-separation parenting and force parents into the unnatural and mutually exclusive roles of carer and financial provider. The latter role can then easily be substituted by state benefits. As we shall explore in Chapter Thirty-Four, a mother does not necessarily start with the intention of stopping all contact, and other factors come into play, but once she gets the family justice system involved, decisions regarding her child’s relationship with its father are taken out of her hands, and she soon loses control of the process.
Re W (A Minor) (Contact),  2 FLR 441 (1994).
Re H (Contact: Domestic Violence),  2 FLR 42 (1998).
Re: L (Contact: Domestic Violence), Re: V Contact: (Domestic Violence), Re: M (Contact: Domestic Violence) and Re: H Contact: (Domestic Violence),  2 FLR 334 (Court of Appeal 2000).
Re W (A Child),  EWCA Civ 1181 (Court of Appeal 2008).
Warwickshire County Council v TE & Ors,  EWHC B19 (High Court 2010).
Aitkenhead, D. (2006, May 8). The Sins of the Fathers. The Guardian.
Barron, J. (2007, February). Retrieved from Women’s Aid.
Family Justice Council. (2011). The Use of Shared Residence Orders. A Discussion Paper Prepared by the Children In Families Committee of the Family Justice Council as Part of the Family Justice Review.
Fox, M. A. (2004). A culture of secrecy, fear and judicial abuse: a report on the Butler County juvenile and domestic relations courts.
Hale, B. (1999). The view from Court 45. Child and Family Law Quarterly, 11(4), 377-386.
Halla, M. (2011). The Effect of Joint Custody on Family Outcomes. Journal of the European Economic Association.
Hunt, J., & Roberts, C. (2004). Child contact with non-resident parents, Family Policy Briefing 3. Oxford: Department of Social Policy and Social Work, University of Oxford.
Lowenstein, L. F. (2006). “Real” justice for non custodial parents.
Moxon, S. (2008). The Woman Racket. Exeter: Imprint Academic.
Saunders, H. (2004). Twenty-Nine Child Homicides: lessons still to be learnt on domestic violence and child protection. Women’s Aid.
Sturge, C., & Glaser, D. (2000). Contact and Domestic Violence – The Experts’ court Report, Fam. Law 615.
Trinder, L., McLeod, A., Pearce, J., Woodward, H., & Hunt, J. (2013a). Children and Families Bill: Memorandum of evidence. Nuffield Foundation.
Wall, N. (2006). A report to the President of the Family Division on the publication by the Women’s Aid Federation of England entitled Twenty-Nine Child Homicides: lessons still to be learned on domestic violence and child protection.