Family Court using discredited US theory: Newsroom

 

The Chief District Court Judge and the Principal Family Court Judge need to review the application of the law in the Family Court.

A series of reports and judgments in the past year has opened to public view the following disturbing aspects of the court’s practice –

· Footage published by Newsroom on 8 August of children being forcibly uplifted by the police;

· The 7 July Court of Appeal decision in SN v MN, which held that an experienced Family Court judge had misinterpreted the Domestic Violence Act in every respect;

· Reports published by The Backbone Collective on 7 April and 8 June, telling the stories of women seeking to protect themselves and their children from domestic violence and finding the Family Court process worsens the situation, with the court sometimes placing children in the care of the abuser;

· A report published by Parliament’s Justice and Electoral Committee on 5 July 2016 expressing concern that in February 2016 more than 80 per cent of applications made under the Care of Children Act were filed “without notice.” Anti-domestic violence campaigners warned the Government about the dangers of its proposals when it changed Family Court processes on 31 March 2014, but these concerns were ignored.

One of my key concerns about the Family Court is its ongoing use of the long-discredited “Parental Alienation Syndrome.”

In addition, children are sometimes placed under the guardianship of the High Court – with the Chief Executive of the Ministry of Social Development appointed as the court’s agent – when mothers report violence towards them and their children and the violence is minimised and disregarded by judges during lengthy court proceedings.

Instead of providing the legal protection the women and children require, judges conclude that there is a mutually-difficult relationship between the parents and third party guardianship is required to resolve this.

One of my key concerns about the Family Court is its ongoing use of the long-discredited “Parental Alienation Syndrome.”

Parental Alienation Syndrome is a term coined by American psychiatrist and psychoanalyst Dr Richard Gardner in the early 1980s. He wrote self-published books titled The Parental Alienation Syndrome and the Differentiations Between Fabricated and Genuine Child Sex Abuse in 1987, and Sex-Abuse Hysteria: Salem Witch Trials Revisited in 1991.

Gardner posited that both mothers and children in custody cases falsely and maliciously accused fathers of sexual abuse and violence as tactics in court proceedings. He sent his 1987 book to many judges and lawyers and subsequently trained thousands of judges and lawyers, both in the United States and in New Zealand.

He also testified in more than 400 child custody cases.

Gardner claimed that the vast majority of children who reported sexual abuse fabricated what they said, after being “alienated” and coached by their mothers.

As early as 1993, research in the United States questioned the existence of Parental Alienation Syndrome. More than 500 studies have now been conducted into the so-called syndrome and not one of them has been able to replicate the eight characteristics claimed by Gardner. All of Gardner’s books were self-published and none was peer reviewed. His books were not based on research.

American lawyer John Myers in 1993 argued that there was no empirical evidence to show that the eight claimed characteristics of Parental Alienation Syndrome were a syndrome. Other research discrediting Gardner includes –

· “Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in Child Custody Cases,” Carol S Bruch, Family Law Quarterly 35, 527 (2001); and

· “The Parental Alienation Syndrome: A Dangerous Aura of Reliability,” Cheri L Wood Loyola of Los Angeles Law Review 29: 1367-1415 (1994);

· “Alienation and Alignment of Children,” Philip M Stahl, Complex Issues in Child Custody Evaluations, Sage Publications, 1999.

More recently, Dr Robert Geffner, President of the Institute on Violence, Abuse and Trauma, has written and spoken extensively on the devastating impact of the continued application of Parental Alienation Syndrome in the making of child custody decisions. He lectured in New Zealand in 2014 about the issue.

The American Psychological Association’s Presidential Task Force on Violence and the Family in 1996 reported that many mothers were losing custody cases in which there were concerns about domestic violence, because abusive fathers were able to convince the court that the mothers were engaged in alienating behaviours.

Gardner’s recommendations were that the mother reporting violence and abuse should be encouraged to stay with the abusive father; she should be helped over her “anger;” and the child should be placed in the father’s care in cases of separation. He also advocated society “come off it” and take a more “realistic” attitude to paedophilic behaviour. Mandatory reporting of child sex abuse and immunity for those reporting it should be abolished, and federally-funded programmes should be set up to help the “millions” of people Gardner said had been wrongly accused of child sex abuse.

As long ago as 1994, the American Psychological Society said that courts should not accept testimony about Parental Alienation Syndrome.

In cases where women and children report abuse and violence, the application of Parental Alienation Syndrome means children are threatened with being removed from their mother’s care if they persist with their reports of abuse. In addition, mothers are threatened with having children removed from their care if they continue to report. Judges in some cases have placed the children in the care of the abusive parent, and even gone so far as to cut off contact with the protective parent.

Bancroft & Silverman’s research reported that families with “the greatest degree of psychological health among mothers and children appear to be among those most vulnerable to being labelled as having “parental alienation.” This is because the children have a secure attachment to the protective parent and – completely rationally and understandably – reject the behaviour of the violent parent on separation. However, instead of the courts and professionals listening to the women and children, their reports of violence and abuse are dismissed as false complaints arising from alienation.

One American study found that batterers were able to convince authorities that domestic violence victims were unfit or undeserving of sole custody of children in 70 per cent of cases in which custody was challenged. On appeal, when some of these situations were more deeply investigated, the allegations made by the women and children were found to be substantiated and the decisions to place the children in the care of the batterer were reversed.

As long ago as 1994, the American Psychological Society said that courts should not accept testimony about Parental Alienation Syndrome, as the theory positing it had been discredited by the scientific community.

Joan Meier studied 2001 case law in the United States and identified 38 appellate state court decisions concerning custody and domestic violence. She found that 36 of the 38 trial courts had awarded joint or sole custody to the alleged and adjudicated batterers. Two-thirds of those decisions were reversed on appeal. However, there are incredibly few appeals in family cases. Women lack the financial resources to pursue appeals, which are an extremely traumatic and time-consuming exercise.

The tragic and frightening outcomes which have occurred in the United States as a result of the use of Parental Alienation Syndrome continue to happen to this day in the Family Court in New Zealand: judges are dismissing and ignoring reports of violence by women and children on the grounds that these are fabrications designed to alienate the children from their father.

The Auckland High Court judgment in the case of F v P [2015] NZHC 1362 was released on 16 June 2015. The judge discussed alienation in great detail in a 149-paragraph judgment, before determining that the clearly-expressed wishes of the son should be ignored. The judge stated that –

“Plainly, in the present case where T exhibits such high levels of antipathy towards his father, falsely alleges assault and holds his father singularly responsible for the difficulties he faces in life, the vehemence of his opposition must be placed in context. In the circumstances I attribute relatively little weight to his opposition.”

These comments run completely contrary to the evidence provided by research, which clearly shows in many studies over many years that false complaints of abuse and violence are incredibly rare. Dr Daniel Saunders’ 2010 research relating to the beliefs of judges and custody evaluators found that they believed that –

· Victims made false allegations;

· Victims alienated their children; and

· Fathers did not make false allegations of abuse.

All of these beliefs are unsupported by evidence. 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.

At a minimum, the use of so-called Parental Alienation needs immediately to be discontinued.

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%.

I wrote a lengthy letter to Justice Minister Amy Adams on 8 September 2015 expressing my concerns about the continued application of Parental Alienation Syndrome in the New Zealand Family Court. I received a brief response on 16 September 2015, which did not specifically address the issues I had raised about the so-called syndrome.

Adams in July 2016 told Parliament’s Justice and Electoral Committee that a review of the 2014 Family Court law reforms was scheduled to begin in 2017. That review is underway at present, with the Minister saying a report is expected before the end of the year. There has to date been no opportunity for public input into the study.

The review being carried out at present either needs to be broadened to examine more aspects of the operation of the Family Court, or a new study needs to be commenced. At a minimum, the use of so-called Parental Alienation needs immediately to be discontinued.

In addition, there needs to be a review of all Family Court domestic violence decisions in the light of the Court of Appeal judgment in SN v MN so that incorrect applications of the Domestic Violence Act can be reversed and women and children can be given the protection the law says they should receive.


Find Newsroom’s Taken By The State series here
* See the original investigation
* Read responses by politicians Jacinda Ardern, Anne Tolley and Paula Bennett, and the Children’s Commissioner
* Opinion: Retired Family Court judge John Adams
* Opinion: Child psychology expert Nicola Atwool

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