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http://www.abc.net.au/rn/backgroundbriefing/stories/2007/1847340.htm
The anger and hurt of divorcing parents often spills over into custody
and access to children. Accusations of child abuse are defended with
claims of lies and alienation using Parental Alienation Syndrome (PAS)
resulting in the accusing parent losing custody. PAS has been
discredited in America but there's concern that it's still being used
in the Family Courts of Australia. Reporter: Jane Shields
THEME
Jane Shields: Australia's Family Court system is the arena for some of
the most sensitive, complex, fraught and disturbing conflicts
imaginable. When husband and wife are deeply alienated, resentful,
angry and hurt, terrible things can happen, and do happen.
Hello, this is Background Briefing, I'm Jane Shields.
Children are often at the centre of it all, also caught up in what can
become a very tangled web. Each parent has rights, and the children
have rights, but how is that web of dysfunctional family dynamics and
personalities best untangled?
Last week, there were media reports that parents who raise allegations
of sexual abuse of their children in custody disputes themselves can
become labelled as having a sickness, 'Parental Alienation Syndrome',
or PAS. It's an idea now totally discredited in America, but many say
it's still influencing family courts both there, and here in
Australia. And it means children may be being sent into the care of an
abusive parent.
Joan Meier: Parental alienation syndrome is a theory that was invented
by a man named Richard Gardner. He said there is a syndrome called
Parental Alienation whereby the custodial parents, who is usually the
mother, is trying to alienate the children from the father, and she's
doing it by raising these false abuse allegations.
Jane Shields: That was Joan Meier, an attorney and Professor of
Clinical Law at George Washington University.
American psychiatrist Richard Gardner first wrote about PAS in 1985
through self-published articles on the subject.
According to him, it's seen almost exclusively during disputes over
child custody. The alienating parent is seen as sick and dangerous,
and the child should be taken away and given to the other parent to
counterbalance the alienation. Critics of Gardner, and there are many,
say this is bogus and very dangerous, particularly where there is
possibility of child abuse.
Louisiana attorney, Richard Ducote.
Richard Ducote: So what he did is he took the evidence that has been
well documented, to exist in cases where kids actually have been
physically and sexually abused by a parent, and simply redefined the
evidence of abuse into evidence of what he called Parental Alienation
Syndrome, which meant that the child was not being abused, but simply
was being coached or encouraged by the other parent, generally the
mother, into disliking the other parent for no good reason.
And then he proposed a very draconian cure, as it were, for this non-
existent disorder, and that was to take the child away from the
protecting parent and give the child to the parent who the child had
reported to have abused the child and then suggested that the mother
be either jailed, or all of her contact with the child be terminated.'
Jane Shields: This sounds incredible, but Professor Ducote is an
expert on PAS and is involved in drafting legislation to eliminate any
reference to the syndrome in US courts. He has acted for victims of
child abuse and custody for 22 years, and says the use of PAS is a
cancer in the US Family Court.
Richard Ducote: We've seen in cases misguided mental health
professionals who have adhered to Gardner's bizarre philosophies who
even recommend that children as young as 5 or 6 years old be
handcuffed and physically and forcibly removed from the protective
parent and turned over to the father who they have reported and other
experts have confirmed, have sodomised them.
Jane Shields: Professor Ducote doesn't pull any punches in his
criticism of the harm done by the PAS adherents in America, and as a
respected authority on the subject, he has had an impact. He has seen
hundreds of cases in the US Family Court, and says the reason
Gardner's extreme ideas were accepted is that there was a willing
market of attorneys looking for an easy defence against sexual abuse
allegations. And, says Professor Ducote, before his death three years
ago, Richard Gardner was a very good self promoter.
Richard Ducote: When I cross-examined him shortly before he committed
suicide, he acknowledged that he had not spoken to the Dean of the
Medical School at Columbia for over 15 years, and that he had not had
hospital admitting privileges at any hospital for approximately 25
years, so he really was out there on his own. He was using these
honorary positions which had no substance whatsoever, as something to
give him credibility in the court system. And then he started, from
1986 into the late '90s, churning out all of these books, that pretty
much repeated the same theme that the sexual abuse cases were false,
endorsing sex between parents and children, he would say things like
'The way to cure incest in a family, is to give the mother a vibrator
so she can have orgasms and then the father won't have to turn to the
child for sex, again blaming it on the mother.
Jane Shields: People listening to this are going to find that
absolutely astounding.
Richard Ducote: It is, it's absolutely amazing that this man had any
credibility.
Jane Shields: The obvious question is, just how Richard Gardner
managed to dupe the courts for so long.
Richard Ducote: He went unchallenged for approximately 15 years,
because he was doing training, he was training other psychologists,
and a lot of his works were not being read by the people who were on
the other side of the issue, the people who really were experienced in
child sexual abuse, and who had done a lot of the research, just
simply wrote him off as a 'kook', they did not realise how much damage
was being done because the primary reason being that the attorneys who
generally practice in Family Court in the United States are not true
litigators, they do not challenge evidence, they do not challenge
witnesses, they don't like to make waves, they like to mediate and
they like to compromise. So very few of these cases where Gardner and
his ideas were being presented in the courtroom, people would simply
roll over and acquiesce to this nonsense.
Jane Shields: Eventually, Richard Gardner's ideas were widely
discredited, and are no longer used in some American courts. His work
has been dismissed by the American Psychiatric Association, the
American Psychological Association, and the American Medical
Association who all say that the syndrome has no scientific basis.
A Google search of the term shows just how much debate there is about
this all over the world.
PIANO
Jane Shields: Although PAS began in the United States, it spread to
other parts of the world, including Australia.
Freda Briggs is well-known and respected for her work in the child
abuse area, and she is now Emeritus Professor of Child Development at
the University of South Australia. She says it is a well-known issue
among child abuse and custody specialists and she herself has seen PAS
being used in Family Court cases across Australia, in Adelaide, Perth
and Townsville.
Freda Briggs: Yes, very frequently, affecting both mothers and
fathers, whoever is the custodial parent, is the one who is accused of
manufacturing, in fact if a child is alleging abuse, the protective
parent who tries to do something for the child is the one who is
accused. You see, the caring parent is in a dilemma, because if that
parent does nothing, and the child is saying, 'Hey, I've been abused',
child protection services can come in and remove the child and put the
child in foster care as a care and protection case. On the other hand,
if the caring parent goes to the Family Court and tries to protect the
child by seeking changes to the arrangements, perhaps banning visits,
or more often asking for visits to be supervised, there is a strong
risk that that child will be removed from the caring parents and
handed to the abuser, on the basis that it is the parent who is the
problem, therefore, the parents is imagining the abuse when it's not
happening, therefore the parent is emotionally damaging the child. And
so far from being the protector, this parents is deemed to be the bad
person.
Jane Shields: Freda says she's contacted regularly by mothers, as well
as fathers, who say they've lost custody of their children after
raising allegations of sexual abuse against the children during
custody cases.
'Parental Alienation Syndrome' arrived in Australia in 1989, in the
form of an article published in The Australian Family Lawyer. The
article, 'Brainwashing in Custody Cases: parental alienation
syndrome', was written by an American, Dr Kenneth Byrne, who had come
with his family to live in Australia and establish the Australian
Institute of Forensic Psychology, of which he remains the Director. Dr
Byrne no longer gives medical testimony, but works as a consultant
forensic psychologist in Melbourne.
Background Briefing telephoned him to ask if he still supports
Gardner's work.
Ken Byrne: Yes, I do. I support the notion that parental alienation
syndrome does exist.
Jane Shields: As a syndrome? Because it has been discredited, it's not
in the diagnostic manual and it's been discredited by legal and
psychological and psychiatric and medical associations in America.
Ken Byrne: Well, I don't know what discredited means. The fact that
it's not in the diagnostic and statistical manual doesn't trouble me.
There are many things that were not in that manual and later were in
the manual. Gardner has specifically written about that issue of it
not being in the DSM-IV.
Jane Shields: Surely that is the benchmark for people working in that
field, is the diagnostic manual?
Ken Byrne: Well we must remember the diagnostic manual is written to
diagnose psychopathology, that's the nature of that book, it's a
manual to help distinguish different types of psychopathology. What
Gardner is writing about is in what we might call a sub-sub-sub-
specialty, which is forensic psychology-psychiatry, trying to answer
questions posed by lawyers, or by courts about people who may or may
not have a psychological disorder.
Jane Shields: But surely isn't Richard Gardner's work saying that
there is a recognisable syndrome and people can actually be diagnosed
with it and subsequently actually charged with it in a court of law?
Ken Byrne: The legal side of that, I don't know that anyone can be
charged with that. I haven't done these cases in some years, I've
retired from this area of practice, so I'm not up to date with the
latest American legal cases.
Jane Shields: A legal review, published in the American Children's
Rights journal, found that PAS did not meet the common standards of
scientific acceptance. But Dr Ken Byrne says he's frustrated with
arguments over whether PAS is technically a syndrome. He says these
debates ignore its usefulness in determining custody cases.
Ken Byrne: What I do contend is that in assessing allegations of
sexual abuse that occur within a Family Law context, it's essential
that the examiner and the court consider whether the statements made
by the child are a product of what's called adult social influence.
Now the term 'parental alienation' is very helpful in understanding
one possible cause of a child, particularly a young child, making an
allegation of sexual abuse. What Gardner talks about is in very
difficult divorce cases and custody cases, which are mainly the ones
that find their way into the Family Court, you commonly find one
parent or sometimes grandparents, forming the view that the child
would be better off without having any contact with the other parent;
they view the other parent as totally bad. This gets communicated to
the child. Now children know what side their bread is buttered on,
they've already had the experience of physically losing one parent
who's moved out. So when the parent they're living with communicates
either overtly or indirectly that the other parent is a loathsome,
undesirable, terrible person, the child picks this up, and the child
then begins to mimic the attitude of the parent they're living with,
and often the child begins to elaborate on things they've heard and
build the story up. So that you then have a child particularly when
there's been gap in contact with the other parent; so let's say you
have a six-year-old who hasn't seen the other parent in a year. Well
the only thing they have left is their memory of that parent, which is
very malleable and unreliable in a young child, not completely
unreliable but more unreliable than in an adult, and the constant
input from the parent they're living with. Now that shapes a child's
perception. Now whether we call it parental alienation syndrome,
whether we call it brainwashing, the name doesn't matter, the fact is
that it goes on in these cases, and I've seen many such cases and so
has everyone else who is experienced in this area and understands the
dynamics of separating parents and bitter divorce.
Jane Shields: In 1990, a year or so after his article on PAS was
published, Dr Byrne was asked to present his views to the Annual
Conference of Australian Family Court judges, at the invitation of the
then Chief Justice, Alastair Nicholson.
These days, Justice Nicholson is no longer on the court, but continues
to work for child advocacy in many projects. At present, he's in
Madurai, in Southern India, working on an aid project to help children
with HIV/AIDS.
On the phone from his hotel room, he explains why the Family Court
judges asked Dr Byrne to speak.
Alastair Nicholson: At that time we took the view that we should get
presentations from different experts in the field, he being one of
them. And I therefore approved of his giving the presentation. The
fact that we permitted it to happen doesn't mean it was an endorsement
of it. I think that judges need to be aware of different views and
trends that are operative in these areas, and that was just one of
them. As I say, it had some vogue at the time and I thought it was
worth considering.
Jane Shields: Alistair Nicholson.
The talk Dr Byrne gave was one of many he gave to judges, lawyers and
psychologists and psychiatrists during the '90s. And the ideas showed
up in a 1997 appeal to the Family Court, when a husband raised the
suggestion that his former wife had PAS. Here is a reading from the
judgment at that time.
Reader: In a case where there have been obvious contact difficulties
between the parties, the possibility that the child has either been
brainwashed, or indoctrinated by one of the parents, must be a
relevant consideration. Dr Byrne's article leave us in no doubt that
'Parental Alienation Syndrome' is a very real psychological phenomenon
which the husband, in our opinion, was entitled to investigate and put
to the relevant experts called in the course of the trial.
Jane Shields: That was in 1997, and since then there has been
increasing evidence that the ideas are bogus and unhelpful to the
Court. Former Chief Justice Alastair Nicholson says it's now proven to
be psycho-babble. He cites a Family Court case of five years ago that
effectively dismissed PAS as having no substance. However, he does
acknowledge there is some lingering influence.
Alastair Nicholson: I think one of the things that happen is that it
is dredged up from time to time.
Jane Shields: There have been studies that have found that legal
practitioners are using parental alienation. I've also spoken to a
family lawyer who's been in a case where their client has been accused
of alienation and a recent study by Thea Brown has indicated that
amongst the psychologists and psychiatrists who are providing witness
and testimony to the courts, are quite convinced of alienation theory.
Alastair Nicholson: There may be some, but in my view they're not
being given any credence. As I say, it's the line that's being pushed,
and I just don't think it receives any currency. I can't say that an
individual judge somewhere may or may not have given it some credence,
but that would be about all, as far as I could see.
Jane Shields: Cases involving allegations of sexual abuse are among
the most challenging to confront courts in Family Law. In these
situations the Family Court must apply a test of 'unacceptable risk'.
What this means is that a court shouldn't grant custody or access to a
parent if this will expose the child to an unacceptable risk of sexual
abuse. Former Chief Justice, Alistair Nicholson:
Alastair Nicholson: That means you don't have to find there's been
sexual abuse, you don't even have to find there's probably been sexual
abuse, you simply have to find 'Is there an unacceptable risk or not?'
Now that can be very tough in its application on some parents, and
that may be that that's the reason why some Full Courts have drifted
away from that position. But in my view, that's clearly what the law
should be, and it's the way the law should be applied. And if you
apply it that way, I think it works quite well.
Jane Shields: Family Law matters are notoriously intense and
difficult, and often impossible to solve to everyone's satisfaction.
Chair of the Family Law Council is Patrick Parkinson.
Patrick Parkinson: It's a dilemma that the Family Law system has to
face. It's the too-hard basket for society. On the one hand, it is
devastating to a parent to be told they can't see their kids, or to be
put under such restrictions that a real relationship is very
difficult. On the other hand, it is devastating for children to be
exposed to abuse. And we need to rely on the courts to try to sort out
what's going on in these cases. Now there are some judges who set the
bar higher than other judges; it is a dilemma and there are no simple
and straightforward answers.
Jane Shields: At Brisbane's Mater Hospital, Dr David Wood is Director
of Paediatric Health Services. He is also Chairman of the Abused Child
Trust in Queensland, and Chairman of Kids First Australia. And he's
also been awarded an Order of Australia for his contribution to child
protection in Queensland over the past 20 years. He's recently become
a very vocal opponent of the Family Court, and has made a public vow
never to return to the witness box in that court.
DOOR OPENS
Jane Shields: Hi David, how are you?
David Wood: Hi, Jane, I'm really well. How are you, it's nice to meet
you.
Jane Shields: Dr Wood is cautious about discussing particular Family
Court cases, but he has no hesitation in criticising the Court's
attitude when it comes to the testimony of professionals in the area.
He says it is a totally different experience to be an expert witness
in the Children's Court, the Supreme Court, or even District Courts.
The Family Court in Queensland, David Wood says, has a particular
culture.
David Wood: I think the Family Court's role seems to be to try to
exclude a professional from giving their experience and knowledge and
comments on a case, and I've certainly got a 10-point listing of what
barristers do to try to destroy or denigrate professional witnesses
that barristers are taught. One is never upset the witness; never
allow them to explain their answer, but there always are ploys to
ensure that really, you don't allow professional opinions to be given
in the court, which then allows you also to try to exclude that
witness, or the witness' knowledge, so that you're actually destroying
that person's credibility so that their opinion, from a professional
point of view, doesn't get into court.
Jane Shields: Dr Wood says that the Family Court is more interested in
discrediting the witness' professional experience rather than hearing
the facts about the particular case. But there is the reality that the
court is part of an adversarial system that must make a decision on
behalf of two conflicting parties.
Dr Wood.
David Wood: It shouldn't be called the Family Court should it? It
should be called the Parent Fight Club, or something equivalent to
that, and the knock-out blow is the end of the story. The reality is
for children, that isn't the end of the story. For children, it's an
ongoing process and children need parenting that's an ongoing process,
an education that's an ongoing process. Decision-making that parents
do or that we do, are always reviewed on regular bases. So I don't see
that the Family Court a) has the ability to do that, or even has the
capacity to think that that's necessary.
Jane Shields: Is it a resource issue, or more of a culture issue in
your view?
David Wood: I think that's definitely a legal culture.
Jane Shields: In late 2005 in the United States, the Public
Broadcasting Service screened a controversial documentary about
parental alienation syndrome.
Announcer: All over America, battered mothers are losing custody of
their children when they file for divorce; even with a proven record,
abusers are winning joint and sole custody.
Jane Shields: The program was called Breaking the Silence - Children's
Stories and it documented the experiences of mothers and children
who've been separated as a result of PAS in America.
In part of the documentary, Karen tells how her suspicions that her
husband was sexually abusing her children were confirmed through a
medical exam, but a court-appointed psychologist successfully
testified that she was using Parental Alienation Syndrome to turn her
children against their father.
Woman: Mothers are never prepared for their children to disclose
sexual abuse, and when my children disclosed, I didn't want to believe
it, but I didn't know what to do either. The children had only that
one week begun to see their father alone, and that's when they came
home and one of them was in serious pain and she was quite inflamed in
her vaginal area. So when you start going through the battles, it's No.
1, you don't know what to do. I turned to my attorney and I was given
very, very bad advice. I turned to the courts through my attorney, and
I found that the more my children disclosed, the more the court didn't
want to believe that my children had been abused, they believed their
father instead, and they took the children away from me, totally. It's
been four years and three months since I've even seen my children.
Woman: They said that my daughter was afraid of her Dad, she didn't
want to visit with him alone, and that was my doing. He was pulling
her out of cars to visit him, even when she didn't want to leave, and
basically they said that I should just bodily take her out of the car
and drive away. And at that point, they started in motion to start
this Parental Alienation Syndrome that they charged me with.
Jane Shields: This woman's daughter was also interviewed for the PBS
documentary.
Child: I remember him coming up the stairs and knocking on the door,
and telling us to go, but it was just so scary because it was like
'Like, let's run away, let's get out of here', you know. Because you
know, like all this stuff was happening, I mean like what kind of
person would take you away from your Mom.
Jane Shields: Following the broadcast, there was outrage from fathers'
groups in America, accusing the PBS of bias against separated fathers.
PBS issued a statement saying that their research was extensive and
supports the conclusions drawn in the program. However, they conceded
that their 'first person story telling approach' did not allow the
depth of research to be evident. PBS made another documentary on the
issues, and this was broadcast in America in September last year.
There will be a link with more information about that on the
Background Briefing website.
In Australia, PAS is not primarily a fathers groups versus mothers
groups issue, and while in society, child sexual abuse is
overwhelmingly committed by men, all professionals say that both
fathers and mothers are capable of it, as well as of psychological and
emotional abuse.
At the University of Sydney, Dr Kim Oates is Professor of Paediatrics
and Child Health. He was also head of Westmead Children's Hospital in
Sydney for ten years.
While in the US, Dr Oates led a study looking at 550 cases of alleged
sexual abuse. The purpose of the study was to assess the frequency of
false allegations of sexual abuse made by children.
His team found that there was enough evidence to substantiate that
sexual abuse did exist in 43% of cases. In 23% there wasn't enough
evidence to be sure and the cases couldn't go to court. And the team
found that in about 30% of cases, there was no evidence either way.
The question then is how many of the cases were shown definitely to be
false?
Dr Kim Oates.
Kim Oates: We only found 2-1/2%. 2-1/2% were false allegations, and
then when we looked at those, 1% of the allegations that a parent had
coached a child, so just 1%, and 1-1/2% were false allegations by
children. So children do make false allegations occasionally, but very
rarely, and that's in contrast to the view out there that children
make these stories up a lot. Now when we looked at the children, they
tended to be older children, young teenagers. One was emotionally
disturbed, one did it to get even with a father because of some anger;
another one did it to impress a classmate. So it's pretty unusual to
have false allegations and unusual by very young children.
Jane Shields: Can children be coached into making false allegations of
sexual abuse?
Kim Oates: There's no doubt that children can be coached into making a
false allegation of child sexual abuse, and in fact studies of true
and false allegations in addition to that very large one of over 550
that we looked at, some smaller studies of 30 or 40 cases have put
them into two broad groups: custody cases and non-custody cases. And
there's been a much higher incidence of false allegations in the
custody cases, and they were false allegations, not spontaneously
false by the child, but false because the child repeated something
that the parent told them to repeat. So parents can influence children
to tell a story, and bribe them and give them rewards for it. So
there's no doubt that happens, but it doesn't happen very much,
certainly in terms of that large study that we looked at, it was 1%.
Jane Shields: Dr Oates has a particular interest in child protection
and child development, and says that public perception is that
children cannot be trusted as witnesses.
Kim Oates: Well people have three concerns about children's ability to
tell the truth, and one is whether they're honest or not, and the
second is whether they're suggestible, and the third is whether
they're prone to fantasy. And Judy Cashmore and Kay Bussey did a study
back in 1996 of magistrates and judges in New South Wales, and they
found that in fact honesty wasn't seen by magistrates and judges as a
problem. They thought kids were at least as honest as adults. But they
did feel that children were more prone to fantasy, and prone to being
suggestible. Now there isn't any evidence that children, of six
certainly, are prone to fantasy, and hardly any evidence at all that
children fantasise about sexual abuse.
Jane Shields: Equally, the honesty of parents during custody disputes
has been questioned.
Critics of Parental Alienation Syndrome aren't blind to the fact that
'alienation' can occur in distraught family separations, but as Dr
Oates and others have shown, false claims are still very rare.
Freda Briggs is Emeritus Professor of Child Development at the
University of South Australia. She says the danger of the PAS theory
is that it casts suspicion on all allegations of sexual abuse. She
says this could too easily lead to genuine cases of abuse continuing,
and to the child even being sent to live with the abusing parent.
She has witnessed dozens of decisions in the Family Court and says
that she has seen cases of substantiated abuse where the Court has
ordered that the child be sent to live with the alleged abuser.
Figures from Advocates of Survivors of Child Sexual Assault, formerly
led by advocate Liz Mulliner, support this. Freda Briggs.
Freda Briggs: Yes, Jane, I accept that both mothers and fathers can
alienate children from the other parent, but in this case we're
talking about allegations of sexual abuse which have often been
confirmed by paediatricians and psychologists who have a lot of
experience in these cases. Liz Mulliner, when she had ASCSA, had 21
cases where doctors had confirmed that the children had been abused,
but the children were removed and given to the care of their abusers.
I know of women who've lost their homes, who've spent up to a million
dollars, usually their parents' money, trying to protect their
children through the Family Court, and they have failed. You would not
go to those extremes if you weren't convinced that your children were
unsafe.
Background Briefing has been swamped with material, both in general
terms and specific case studies. But Family Law regulations are strict
about any coverage of individual Family Court protagonists,
particularly when they could involve identification of the children
concerned.
However, some mental health professionals are so concerned, they want
to talk about their experiences with Parental Alienation Syndrome. In
Queensland, Dr Brian Ross is a child and adolescent psychiatrist.
Brian Ross: There is certainly a group of children who demonstrate
alienation in the context of Family Law Court disputes or custody
disputes, and yes, parents can consciously and unconsciously alienate
the child as part of that process. However, I think it is in the
current environment of the Family Court, over-represented and used in
a way that I think really lacks true scientific or medical validity in
relation to what is a complex dynamics going on with children in
custody disputes.
Jane Shields: He has worked as a psychiatrist with families in
trouble, and recounts one case some years ago in which allegations of
physical and sexual abuse were raised by a mother.
Brian Ross: She came to me because she had been told that maybe part
of her emotional reaction to her husband might be influencing her
relationship with her children, and her behavioural management of her
children. My assessment over the years that I looked after her, was
that that wasn't the case, that she was trying to manage her
children's reactions in the context of their experience on access, and
she was trying to set boundaries about her own emotional reactions to
her former partner from that of her children's emotional and
behavioural reactions within the context of access.
Jane Shields: The final judgment in the case was to change the living
arrangements so that the children would go to live with the father for
most of the time.
Background Briefing has talked to this mother, and has read the court
proceedings. Part of her interview has been re-voiced to avoid
identification.
Reader: I had absolutely no idea of the existence of PAS; I had no
idea that it existed or that it was even used. And it is interesting
looking back. At all times there was an underlying current, because
the lawyers, the children's reps, my lawyer and the father's lawyer,
and the judge, knew that this was going to be used against me, but
nobody ever actually told me. So I always had a sense there was this
underlying stealth, that there was something underlying underneath the
surface, and I couldn't actually find out what it was. And I didn't
until after the judgment, when I made sure that I really found out
about it.
Jane Shields: Did they use the word 'alienation' when they were
questioning you?
Reader: No, the court and the lawyers have become quite savvy to this,
and they don't so much use the term now, PAS, or alienation, but the
underlying theory that they are using, or the underlying flow, is that
you are what they call an alienator, meaning you will destroy the
children's relationship with their father and you will go to any
lengths, including fabrication of abuse or even sexual abuse, in order
to achieve that.
Jane Shields: Dr Brian Ross, who was counselling this woman on her
relationship with her children, also gave statements to her lawyers
about her mental state.
Brian Ross: I was phoned by her lawyers to be asked about the mother's
presentation, her mental state, and whether in fact this mother may be
on a campaign to alienate or denigrate her former partner with these
allegations made by the daughter. It was my opinion, having known this
other over a number of years, that I felt that she was trying to act
protectively, she was wanting to seek the correct avenues to get
appropriate support and counselling for her daughter, and trying to
seek appropriate legal avenues to protect further abuse. It was not
her intention to denigrate or remove access or contact. She recognised
the relationship her former partner had with her children was
ongoingly important for the children's wellbeing, but she was wanting
to act protectively to prevent any negative impact of things that were
reported to her to be ongoing.
Jane Shields: Dr Ross is convinced that there was an agenda to paint
the mother as an alienator.
An independent psychiatric assessment of the mother also supported his
statements, and recommended that the children remain in the primary
care of their mother. In the final judgment, the Court didn't agree.
There is a larger issue within all Courts about the testimony of
expert witnesses, that we are not able to cover in this program.
Brisbane psychologist, Sue Aydon, also had dealings with parents and
children before the Family Court, and has attended Court hearings. She
believed at first that she would be asked to provide the Court with
information based on her knowledge of a family and the children.
Sue Aydon: I was part of a number of professionals who'd seen these
children. We all work in private practice but we do have dealings and
discussions with each other when we have a client between us, and
seeing as we'd had quite a long sort of association and counselling
with the children, we felt that this was important that we went along,
and actually voiced what the children wanted, and what we knew of the
children, to give an overview of how the children were going and what
was happening, what the problems were. You know, general evaluation.
We felt that that would be really important for the Court, because we
thought we could give it an objective assessment essentially.
Jane Shields: So you get into the witness box. Can you describe for us
what happened next?
Sue Aydon: Well essentially, the problem with the Family Court is that
it's adversarial. So we had a very, quite aggressive barrister on the
father's side, and quite attacking. So really their means of dealing
with the situation in that circumstance is s to really just try and
denigrate us and take away our credibility. So essentially that's what
happened in court.
Jane Shields: Were you in fact asked any questions about the children?
Sue Aydon: No, there were no questions asked about how the children
were going and what they thought, and yes, none at all.
Jane Shields: So the questions were really about your professional
credentials.
Sue Aydon: Oh, very much questioning our credibility and our
objectivity. So we were very much painted as being biased, even though
in many ways for us, there's no need for us to go along and be biased,
we actually felt that we were trying to provide a good overview, and
trying to really support the children in what they wanted.
Jane Shields: All Family Court cases are complex and difficult. The
issues run deep in the family dynamics, and both mothers and fathers
can come away deeply scarred, angry and frustrated with their dreams
dashed, and their children torn apart. Sometimes there are years of
claim and counter-claim, using many, many professional expert
witnesses, not all of whom agree. But very few are happy with the
influence that PAS on the Courts.
There are many studies and anecdotal evidence that PAS is supported by
people in Family Law, and that it's being referred to under a series
of different terms, including severe alienation, brainwashing,
coaching, vilification of the other parent, and enmeshment.
It's not surprising that research into child sexual abuse shows that
it is frequently a cause of a family breaking up and the parents
living apart. More disturbing is that the research also shows that
there is more likelihood of child sexual abuse after parents have
separated. Professor Thea Brown.
Thea Brown: You can see how that happens. You can see that if a person
in a marriage or a relationship starts to believe that the other
partner is abusing their child, or a member of the other partner's
family is abusing their child, because sometimes it's grandparents and
aunts and uncles and cousins, you can see that they start to think
that the only solution to this problem is that they separate from that
partner. And then they start to realise that this is just the
beginning of the trouble, not the end of the trouble, because they've
got to go to court and make arrangements for residence and contact.
And then they get involved in a really bitter dispute with their
partner. Because most people who perpetrate abuse, particularly people
who perpetrate sexual abuse, don't easily admit that. They don't say,
'Yes, I've done this and I will do what I can to solve this.'
Jane Shields: Thea Brown is Professor of Social Work, with Melbourne's
Monash University. In her book published this month, Professor Brown
says that over recent years child abuse in the context of parental
separation has emerged as a growing and troubling problem.
Thea Brown: In some families, the behaviour doesn't become noticed
until the separation has actually occurred and there's evidence to
show that sometimes the abuse doesn't actually happen until the child
is with only the one parent, that the opportunity presents itself when
it's a contact visit for that kind of abuse to happen. There's also
the problem that the abuse has happened before, but the child doesn't
say anything until they are left with only the one parent. That means
either with the residential parent, or with the contact parent.
Jane Shields: Professor Brown says she's been very surprised to find
that there is still support among people working in family law for the
idea of parental alienation syndrome as a psychiatric illness, one
which is dealt with by removing the children to the other parent's
home.
Thea Brown: I had imagined when we started our research that these
kinds of views had died, because I always associated parental
alienation syndrome with the past, and I thought that people had
walked past that. But I've certainly discovered it isn't true, and
I've certainly found it from the research that I've done and one of my
PhD students who did similar research in Western Australia, found that
it is still alive and well and believed by quite a lot of people who
work, generally speaking, in the Family Law area.
Jane Shields: Thea Brown says that she believes the PAS ideas are
mainly coming up through the courts from the supporting staff: the
psychologists, psychiatrists, and social workers who prepare reports
for the Family Court.
Thea Brown: Certainly it's fairly widespread among those professionals
that Parental Alienation Syndrome does exist.
Jane Shields: What sort of evidence did you see of the application of
that sort of alienation theory?
Thea Brown: Well where we saw the evidence was in the reports that
came to the court for decisions in the residence and contact disputes,
and they were reports that are done by psychologists and psychiatrists
and social workers that are commissioned by the parties in the case,
or sometimes by the local Legal Aid office, and sometimes by the Court
itself.
We saw it more commonly there than being expressed in the judges'
decisions, although I know that some people criticise the judges quite
strenuously for implementing that kind of view, but we found that the
judges were very strongly influenced by the expert reports. And in our
study we found that usually, that is in 70% of cases, the judge would
follow the recommendations of the court-appointed expert.
Jane Shields: And Thea Brown says many of the experts preparing
reports for the Family Court are still influenced by the PAS theory.
Several professionals raised the issue of PAS with her during research
interviews late last year.
Thea Brown: I have certainly been told about it, and told that this is
the situation, that this parent and it's very often the mother, is
working towards alienating the child from the father. And it's really
amazed me that professionals that I am interviewing for research
projects, would take that extra step and say to me, 'And you should
know this, you should know that this is happening.' And I have been
really quite surprised about it. The PhD student who did the work in
Western Australia, Dr Alison Hay, she found that extremely prevalent
in the West Australian Family Court.
Jane Shields: Professor Brown is planning more research on the topic
of PAS and its application in the courts.
Meanwhile, Professor of Child Development at the University of South
Australia, Freda Briggs, says she continues to hear from parents who
say they have been labelled with PAS and she wants it discredited in
Australia.
Freda Briggs: The PAS theory has no academic or any other credibility.
It's been banned in the court in America, and I'm just puzzled why our
judges don't take any notice of what's happening overseas. It was
described by Professor John Conte, who is well-known in the chid
protection area; he's in the University of Washington and as long ago
as seven years ago, he said that it's the most unscientific piece of
garbage he's seen in the field in all his time. And Dr Paul Fink, a
past President of the American Psychiatric Association, President of
the Leadership Council on Mental Health Justice and the Media said
that PAS as a scientific theory has been excoriated by legitimate
researchers across the nation, judged solely on its merits Dr Gardner
should be a pathetic footnote of psychiatry or an example of poor
scientific standards. So why are we behind the rest of the world in
still using it.
Jane Shields: Background Briefing put some of these arguments to the
Chief Justice of the Family Court, Diana Bryant. She is adamant that
the syndrome is not being accepted by judges of the Court.
Chief Justice Bryant.
Diana Bryant: As far as I'm aware in my experience, and I've looked at
a number of recent cases, there are almost no experts who give
evidence in the Family Court who subscribe to the view that there is a
Parental Alienation Syndrome. And the decisions of the court do not
accept that there is a Parental Alienation Syndrome. I went through
all of the decisions, doing a search, putting the words in, since
2003. The words Parental Alienation Syndrome come up quite a lot in
the judgments, but they're referred to because that's usually what one
party alleges.
In only one case since 2003 did I find a judge who had an expert
before him, who said there was such a syndrome. Subsequently, in other
decisions in that registry, judges have said that they don't accept
the evidence of the expert on that point.
So it isn't something that the Family Court accepts. All of the
internal counsellors that are in the court subscribe to the view that
there is no valid condition as Parental Alienation Syndrome.
Jane Shields: Freda Briggs is very respected and she has witnessed
cases where there's been substantiated abuse and the custody
arrangement has been reversed.
Diana Bryant: I don't agree with that. I know what Freda Briggs has
said in a number of cases, and she is well respected. However, they
are her views. The point is that people will say, people - sometimes
they're experts who come in on the side of a particular parent - and
they will truly believe that it might have occurred; they may believe
the party that abuse has occurred. But the person who actually makes
the findings in fact at the end of the day is the judge, who hears all
the evidence. And simply because an expert, or anyone says to you,
'I'm sure there was abuse in this case', doesn't mean that there was.
It's the judge in the end who has to make the decision, and they're
hard decisions. None of us like to do it, none of us like to be
confronted with having to determine whether or not abuse has occurred.
Jane Shields: Would you consider a review of any cases where that is
alleged?
Diana Bryant: We put cases up on the internet. They're anonymised
cases and they're cases dealing with it. I published a case because I
thought it was in the public interest to do so last year, a case in
which Dr Wood, who's recently been writing in the paper, gave
evidence, and there were experts on both sides, and the judge made a
decision, and that case is published on the internet for everyone to
read, and I'm happy for people to have informed debate about it.
THEME
Jane Shields: Background Briefing's Co-ordinating Producer is Angus
Kingston. Research, Anna Whitfeld. Executive Producer, Kirsten
Garrett.
There will be some links to information mentioned in the program on
the Background Briefing website.
I'm Jane Shields, and you're with ABC Radio National.
THEME
The anger and hurt of divorcing parents often spills over into custody
and access to children. Accusations of child abuse are defended with
claims of lies and alienation using Parental Alienation Syndrome (PAS)
resulting in the accusing parent losing custody. PAS has been
discredited in America but there's concern that it's still being used
in the Family Courts of Australia. Reporter: Jane Shields
THEME
Jane Shields: Australia's Family Court system is the arena for some of
the most sensitive, complex, fraught and disturbing conflicts
imaginable. When husband and wife are deeply alienated, resentful,
angry and hurt, terrible things can happen, and do happen.
Hello, this is Background Briefing, I'm Jane Shields.
Children are often at the centre of it all, also caught up in what can
become a very tangled web. Each parent has rights, and the children
have rights, but how is that web of dysfunctional family dynamics and
personalities best untangled?
Last week, there were media reports that parents who raise allegations
of sexual abuse of their children in custody disputes themselves can
become labelled as having a sickness, 'Parental Alienation Syndrome',
or PAS. It's an idea now totally discredited in America, but many say
it's still influencing family courts both there, and here in
Australia. And it means children may be being sent into the care of an
abusive parent.
Joan Meier: Parental alienation syndrome is a theory that was invented
by a man named Richard Gardner. He said there is a syndrome called
Parental Alienation whereby the custodial parents, who is usually the
mother, is trying to alienate the children from the father, and she's
doing it by raising these false abuse allegations.
Jane Shields: That was Joan Meier, an attorney and Professor of
Clinical Law at George Washington University.
American psychiatrist Richard Gardner first wrote about PAS in 1985
through self-published articles on the subject.
According to him, it's seen almost exclusively during disputes over
child custody. The alienating parent is seen as sick and dangerous,
and the child should be taken away and given to the other parent to
counterbalance the alienation. Critics of Gardner, and there are many,
say this is bogus and very dangerous, particularly where there is
possibility of child abuse.
Louisiana attorney, Richard Ducote.
Richard Ducote: So what he did is he took the evidence that has been
well documented, to exist in cases where kids actually have been
physically and sexually abused by a parent, and simply redefined the
evidence of abuse into evidence of what he called Parental Alienation
Syndrome, which meant that the child was not being abused, but simply
was being coached or encouraged by the other parent, generally the
mother, into disliking the other parent for no good reason.
And then he proposed a very draconian cure, as it were, for this non-
existent disorder, and that was to take the child away from the
protecting parent and give the child to the parent who the child had
reported to have abused the child and then suggested that the mother
be either jailed, or all of her contact with the child be terminated.'
Jane Shields: This sounds incredible, but Professor Ducote is an
expert on PAS and is involved in drafting legislation to eliminate any
reference to the syndrome in US courts. He has acted for victims of
child abuse and custody for 22 years, and says the use of PAS is a
cancer in the US Family Court.
Richard Ducote: We've seen in cases misguided mental health
professionals who have adhered to Gardner's bizarre philosophies who
even recommend that children as young as 5 or 6 years old be
handcuffed and physically and forcibly removed from the protective
parent and turned over to the father who they have reported and other
experts have confirmed, have sodomised them.
Jane Shields: Professor Ducote doesn't pull any punches in his
criticism of the harm done by the PAS adherents in America, and as a
respected authority on the subject, he has had an impact. He has seen
hundreds of cases in the US Family Court, and says the reason
Gardner's extreme ideas were accepted is that there was a willing
market of attorneys looking for an easy defence against sexual abuse
allegations. And, says Professor Ducote, before his death three years
ago, Richard Gardner was a very good self promoter.
Richard Ducote: When I cross-examined him shortly before he committed
suicide, he acknowledged that he had not spoken to the Dean of the
Medical School at Columbia for over 15 years, and that he had not had
hospital admitting privileges at any hospital for approximately 25
years, so he really was out there on his own. He was using these
honorary positions which had no substance whatsoever, as something to
give him credibility in the court system. And then he started, from
1986 into the late '90s, churning out all of these books, that pretty
much repeated the same theme that the sexual abuse cases were false,
endorsing sex between parents and children, he would say things like
'The way to cure incest in a family, is to give the mother a vibrator
so she can have orgasms and then the father won't have to turn to the
child for sex, again blaming it on the mother.
Jane Shields: People listening to this are going to find that
absolutely astounding.
Richard Ducote: It is, it's absolutely amazing that this man had any
credibility.
Jane Shields: The obvious question is, just how Richard Gardner
managed to dupe the courts for so long.
Richard Ducote: He went unchallenged for approximately 15 years,
because he was doing training, he was training other psychologists,
and a lot of his works were not being read by the people who were on
the other side of the issue, the people who really were experienced in
child sexual abuse, and who had done a lot of the research, just
simply wrote him off as a 'kook', they did not realise how much damage
was being done because the primary reason being that the attorneys who
generally practice in Family Court in the United States are not true
litigators, they do not challenge evidence, they do not challenge
witnesses, they don't like to make waves, they like to mediate and
they like to compromise. So very few of these cases where Gardner and
his ideas were being presented in the courtroom, people would simply
roll over and acquiesce to this nonsense.
Jane Shields: Eventually, Richard Gardner's ideas were widely
discredited, and are no longer used in some American courts. His work
has been dismissed by the American Psychiatric Association, the
American Psychological Association, and the American Medical
Association who all say that the syndrome has no scientific basis.
A Google search of the term shows just how much debate there is about
this all over the world.
PIANO
Jane Shields: Although PAS began in the United States, it spread to
other parts of the world, including Australia.
Freda Briggs is well-known and respected for her work in the child
abuse area, and she is now Emeritus Professor of Child Development at
the University of South Australia. She says it is a well-known issue
among child abuse and custody specialists and she herself has seen PAS
being used in Family Court cases across Australia, in Adelaide, Perth
and Townsville.
Freda Briggs: Yes, very frequently, affecting both mothers and
fathers, whoever is the custodial parent, is the one who is accused of
manufacturing, in fact if a child is alleging abuse, the protective
parent who tries to do something for the child is the one who is
accused. You see, the caring parent is in a dilemma, because if that
parent does nothing, and the child is saying, 'Hey, I've been abused',
child protection services can come in and remove the child and put the
child in foster care as a care and protection case. On the other hand,
if the caring parent goes to the Family Court and tries to protect the
child by seeking changes to the arrangements, perhaps banning visits,
or more often asking for visits to be supervised, there is a strong
risk that that child will be removed from the caring parents and
handed to the abuser, on the basis that it is the parent who is the
problem, therefore, the parents is imagining the abuse when it's not
happening, therefore the parent is emotionally damaging the child. And
so far from being the protector, this parents is deemed to be the bad
person.
Jane Shields: Freda says she's contacted regularly by mothers, as well
as fathers, who say they've lost custody of their children after
raising allegations of sexual abuse against the children during
custody cases.
'Parental Alienation Syndrome' arrived in Australia in 1989, in the
form of an article published in The Australian Family Lawyer. The
article, 'Brainwashing in Custody Cases: parental alienation
syndrome', was written by an American, Dr Kenneth Byrne, who had come
with his family to live in Australia and establish the Australian
Institute of Forensic Psychology, of which he remains the Director. Dr
Byrne no longer gives medical testimony, but works as a consultant
forensic psychologist in Melbourne.
Background Briefing telephoned him to ask if he still supports
Gardner's work.
Ken Byrne: Yes, I do. I support the notion that parental alienation
syndrome does exist.
Jane Shields: As a syndrome? Because it has been discredited, it's not
in the diagnostic manual and it's been discredited by legal and
psychological and psychiatric and medical associations in America.
Ken Byrne: Well, I don't know what discredited means. The fact that
it's not in the diagnostic and statistical manual doesn't trouble me.
There are many things that were not in that manual and later were in
the manual. Gardner has specifically written about that issue of it
not being in the DSM-IV.
Jane Shields: Surely that is the benchmark for people working in that
field, is the diagnostic manual?
Ken Byrne: Well we must remember the diagnostic manual is written to
diagnose psychopathology, that's the nature of that book, it's a
manual to help distinguish different types of psychopathology. What
Gardner is writing about is in what we might call a sub-sub-sub-
specialty, which is forensic psychology-psychiatry, trying to answer
questions posed by lawyers, or by courts about people who may or may
not have a psychological disorder.
Jane Shields: But surely isn't Richard Gardner's work saying that
there is a recognisable syndrome and people can actually be diagnosed
with it and subsequently actually charged with it in a court of law?
Ken Byrne: The legal side of that, I don't know that anyone can be
charged with that. I haven't done these cases in some years, I've
retired from this area of practice, so I'm not up to date with the
latest American legal cases.
Jane Shields: A legal review, published in the American Children's
Rights journal, found that PAS did not meet the common standards of
scientific acceptance. But Dr Ken Byrne says he's frustrated with
arguments over whether PAS is technically a syndrome. He says these
debates ignore its usefulness in determining custody cases.
Ken Byrne: What I do contend is that in assessing allegations of
sexual abuse that occur within a Family Law context, it's essential
that the examiner and the court consider whether the statements made
by the child are a product of what's called adult social influence.
Now the term 'parental alienation' is very helpful in understanding
one possible cause of a child, particularly a young child, making an
allegation of sexual abuse. What Gardner talks about is in very
difficult divorce cases and custody cases, which are mainly the ones
that find their way into the Family Court, you commonly find one
parent or sometimes grandparents, forming the view that the child
would be better off without having any contact with the other parent;
they view the other parent as totally bad. This gets communicated to
the child. Now children know what side their bread is buttered on,
they've already had the experience of physically losing one parent
who's moved out. So when the parent they're living with communicates
either overtly or indirectly that the other parent is a loathsome,
undesirable, terrible person, the child picks this up, and the child
then begins to mimic the attitude of the parent they're living with,
and often the child begins to elaborate on things they've heard and
build the story up. So that you then have a child particularly when
there's been gap in contact with the other parent; so let's say you
have a six-year-old who hasn't seen the other parent in a year. Well
the only thing they have left is their memory of that parent, which is
very malleable and unreliable in a young child, not completely
unreliable but more unreliable than in an adult, and the constant
input from the parent they're living with. Now that shapes a child's
perception. Now whether we call it parental alienation syndrome,
whether we call it brainwashing, the name doesn't matter, the fact is
that it goes on in these cases, and I've seen many such cases and so
has everyone else who is experienced in this area and understands the
dynamics of separating parents and bitter divorce.
Jane Shields: In 1990, a year or so after his article on PAS was
published, Dr Byrne was asked to present his views to the Annual
Conference of Australian Family Court judges, at the invitation of the
then Chief Justice, Alastair Nicholson.
These days, Justice Nicholson is no longer on the court, but continues
to work for child advocacy in many projects. At present, he's in
Madurai, in Southern India, working on an aid project to help children
with HIV/AIDS.
On the phone from his hotel room, he explains why the Family Court
judges asked Dr Byrne to speak.
Alastair Nicholson: At that time we took the view that we should get
presentations from different experts in the field, he being one of
them. And I therefore approved of his giving the presentation. The
fact that we permitted it to happen doesn't mean it was an endorsement
of it. I think that judges need to be aware of different views and
trends that are operative in these areas, and that was just one of
them. As I say, it had some vogue at the time and I thought it was
worth considering.
Jane Shields: Alistair Nicholson.
The talk Dr Byrne gave was one of many he gave to judges, lawyers and
psychologists and psychiatrists during the '90s. And the ideas showed
up in a 1997 appeal to the Family Court, when a husband raised the
suggestion that his former wife had PAS. Here is a reading from the
judgment at that time.
Reader: In a case where there have been obvious contact difficulties
between the parties, the possibility that the child has either been
brainwashed, or indoctrinated by one of the parents, must be a
relevant consideration. Dr Byrne's article leave us in no doubt that
'Parental Alienation Syndrome' is a very real psychological phenomenon
which the husband, in our opinion, was entitled to investigate and put
to the relevant experts called in the course of the trial.
Jane Shields: That was in 1997, and since then there has been
increasing evidence that the ideas are bogus and unhelpful to the
Court. Former Chief Justice Alastair Nicholson says it's now proven to
be psycho-babble. He cites a Family Court case of five years ago that
effectively dismissed PAS as having no substance. However, he does
acknowledge there is some lingering influence.
Alastair Nicholson: I think one of the things that happen is that it
is dredged up from time to time.
Jane Shields: There have been studies that have found that legal
practitioners are using parental alienation. I've also spoken to a
family lawyer who's been in a case where their client has been accused
of alienation and a recent study by Thea Brown has indicated that
amongst the psychologists and psychiatrists who are providing witness
and testimony to the courts, are quite convinced of alienation theory.
Alastair Nicholson: There may be some, but in my view they're not
being given any credence. As I say, it's the line that's being pushed,
and I just don't think it receives any currency. I can't say that an
individual judge somewhere may or may not have given it some credence,
but that would be about all, as far as I could see.
Jane Shields: Cases involving allegations of sexual abuse are among
the most challenging to confront courts in Family Law. In these
situations the Family Court must apply a test of 'unacceptable risk'.
What this means is that a court shouldn't grant custody or access to a
parent if this will expose the child to an unacceptable risk of sexual
abuse. Former Chief Justice, Alistair Nicholson:
Alastair Nicholson: That means you don't have to find there's been
sexual abuse, you don't even have to find there's probably been sexual
abuse, you simply have to find 'Is there an unacceptable risk or not?'
Now that can be very tough in its application on some parents, and
that may be that that's the reason why some Full Courts have drifted
away from that position. But in my view, that's clearly what the law
should be, and it's the way the law should be applied. And if you
apply it that way, I think it works quite well.
Jane Shields: Family Law matters are notoriously intense and
difficult, and often impossible to solve to everyone's satisfaction.
Chair of the Family Law Council is Patrick Parkinson.
Patrick Parkinson: It's a dilemma that the Family Law system has to
face. It's the too-hard basket for society. On the one hand, it is
devastating to a parent to be told they can't see their kids, or to be
put under such restrictions that a real relationship is very
difficult. On the other hand, it is devastating for children to be
exposed to abuse. And we need to rely on the courts to try to sort out
what's going on in these cases. Now there are some judges who set the
bar higher than other judges; it is a dilemma and there are no simple
and straightforward answers.
Jane Shields: At Brisbane's Mater Hospital, Dr David Wood is Director
of Paediatric Health Services. He is also Chairman of the Abused Child
Trust in Queensland, and Chairman of Kids First Australia. And he's
also been awarded an Order of Australia for his contribution to child
protection in Queensland over the past 20 years. He's recently become
a very vocal opponent of the Family Court, and has made a public vow
never to return to the witness box in that court.
DOOR OPENS
Jane Shields: Hi David, how are you?
David Wood: Hi, Jane, I'm really well. How are you, it's nice to meet
you.
Jane Shields: Dr Wood is cautious about discussing particular Family
Court cases, but he has no hesitation in criticising the Court's
attitude when it comes to the testimony of professionals in the area.
He says it is a totally different experience to be an expert witness
in the Children's Court, the Supreme Court, or even District Courts.
The Family Court in Queensland, David Wood says, has a particular
culture.
David Wood: I think the Family Court's role seems to be to try to
exclude a professional from giving their experience and knowledge and
comments on a case, and I've certainly got a 10-point listing of what
barristers do to try to destroy or denigrate professional witnesses
that barristers are taught. One is never upset the witness; never
allow them to explain their answer, but there always are ploys to
ensure that really, you don't allow professional opinions to be given
in the court, which then allows you also to try to exclude that
witness, or the witness' knowledge, so that you're actually destroying
that person's credibility so that their opinion, from a professional
point of view, doesn't get into court.
Jane Shields: Dr Wood says that the Family Court is more interested in
discrediting the witness' professional experience rather than hearing
the facts about the particular case. But there is the reality that the
court is part of an adversarial system that must make a decision on
behalf of two conflicting parties.
Dr Wood.
David Wood: It shouldn't be called the Family Court should it? It
should be called the Parent Fight Club, or something equivalent to
that, and the knock-out blow is the end of the story. The reality is
for children, that isn't the end of the story. For children, it's an
ongoing process and children need parenting that's an ongoing process,
an education that's an ongoing process. Decision-making that parents
do or that we do, are always reviewed on regular bases. So I don't see
that the Family Court a) has the ability to do that, or even has the
capacity to think that that's necessary.
Jane Shields: Is it a resource issue, or more of a culture issue in
your view?
David Wood: I think that's definitely a legal culture.
Jane Shields: In late 2005 in the United States, the Public
Broadcasting Service screened a controversial documentary about
parental alienation syndrome.
Announcer: All over America, battered mothers are losing custody of
their children when they file for divorce; even with a proven record,
abusers are winning joint and sole custody.
Jane Shields: The program was called Breaking the Silence - Children's
Stories and it documented the experiences of mothers and children
who've been separated as a result of PAS in America.
In part of the documentary, Karen tells how her suspicions that her
husband was sexually abusing her children were confirmed through a
medical exam, but a court-appointed psychologist successfully
testified that she was using Parental Alienation Syndrome to turn her
children against their father.
Woman: Mothers are never prepared for their children to disclose
sexual abuse, and when my children disclosed, I didn't want to believe
it, but I didn't know what to do either. The children had only that
one week begun to see their father alone, and that's when they came
home and one of them was in serious pain and she was quite inflamed in
her vaginal area. So when you start going through the battles, it's No.
1, you don't know what to do. I turned to my attorney and I was given
very, very bad advice. I turned to the courts through my attorney, and
I found that the more my children disclosed, the more the court didn't
want to believe that my children had been abused, they believed their
father instead, and they took the children away from me, totally. It's
been four years and three months since I've even seen my children.
Woman: They said that my daughter was afraid of her Dad, she didn't
want to visit with him alone, and that was my doing. He was pulling
her out of cars to visit him, even when she didn't want to leave, and
basically they said that I should just bodily take her out of the car
and drive away. And at that point, they started in motion to start
this Parental Alienation Syndrome that they charged me with.
Jane Shields: This woman's daughter was also interviewed for the PBS
documentary.
Child: I remember him coming up the stairs and knocking on the door,
and telling us to go, but it was just so scary because it was like
'Like, let's run away, let's get out of here', you know. Because you
know, like all this stuff was happening, I mean like what kind of
person would take you away from your Mom.
Jane Shields: Following the broadcast, there was outrage from fathers'
groups in America, accusing the PBS of bias against separated fathers.
PBS issued a statement saying that their research was extensive and
supports the conclusions drawn in the program. However, they conceded
that their 'first person story telling approach' did not allow the
depth of research to be evident. PBS made another documentary on the
issues, and this was broadcast in America in September last year.
There will be a link with more information about that on the
Background Briefing website.
In Australia, PAS is not primarily a fathers groups versus mothers
groups issue, and while in society, child sexual abuse is
overwhelmingly committed by men, all professionals say that both
fathers and mothers are capable of it, as well as of psychological and
emotional abuse.
At the University of Sydney, Dr Kim Oates is Professor of Paediatrics
and Child Health. He was also head of Westmead Children's Hospital in
Sydney for ten years.
While in the US, Dr Oates led a study looking at 550 cases of alleged
sexual abuse. The purpose of the study was to assess the frequency of
false allegations of sexual abuse made by children.
His team found that there was enough evidence to substantiate that
sexual abuse did exist in 43% of cases. In 23% there wasn't enough
evidence to be sure and the cases couldn't go to court. And the team
found that in about 30% of cases, there was no evidence either way.
The question then is how many of the cases were shown definitely to be
false?
Dr Kim Oates.
Kim Oates: We only found 2-1/2%. 2-1/2% were false allegations, and
then when we looked at those, 1% of the allegations that a parent had
coached a child, so just 1%, and 1-1/2% were false allegations by
children. So children do make false allegations occasionally, but very
rarely, and that's in contrast to the view out there that children
make these stories up a lot. Now when we looked at the children, they
tended to be older children, young teenagers. One was emotionally
disturbed, one did it to get even with a father because of some anger;
another one did it to impress a classmate. So it's pretty unusual to
have false allegations and unusual by very young children.
Jane Shields: Can children be coached into making false allegations of
sexual abuse?
Kim Oates: There's no doubt that children can be coached into making a
false allegation of child sexual abuse, and in fact studies of true
and false allegations in addition to that very large one of over 550
that we looked at, some smaller studies of 30 or 40 cases have put
them into two broad groups: custody cases and non-custody cases. And
there's been a much higher incidence of false allegations in the
custody cases, and they were false allegations, not spontaneously
false by the child, but false because the child repeated something
that the parent told them to repeat. So parents can influence children
to tell a story, and bribe them and give them rewards for it. So
there's no doubt that happens, but it doesn't happen very much,
certainly in terms of that large study that we looked at, it was 1%.
Jane Shields: Dr Oates has a particular interest in child protection
and child development, and says that public perception is that
children cannot be trusted as witnesses.
Kim Oates: Well people have three concerns about children's ability to
tell the truth, and one is whether they're honest or not, and the
second is whether they're suggestible, and the third is whether
they're prone to fantasy. And Judy Cashmore and Kay Bussey did a study
back in 1996 of magistrates and judges in New South Wales, and they
found that in fact honesty wasn't seen by magistrates and judges as a
problem. They thought kids were at least as honest as adults. But they
did feel that children were more prone to fantasy, and prone to being
suggestible. Now there isn't any evidence that children, of six
certainly, are prone to fantasy, and hardly any evidence at all that
children fantasise about sexual abuse.
Jane Shields: Equally, the honesty of parents during custody disputes
has been questioned.
Critics of Parental Alienation Syndrome aren't blind to the fact that
'alienation' can occur in distraught family separations, but as Dr
Oates and others have shown, false claims are still very rare.
Freda Briggs is Emeritus Professor of Child Development at the
University of South Australia. She says the danger of the PAS theory
is that it casts suspicion on all allegations of sexual abuse. She
says this could too easily lead to genuine cases of abuse continuing,
and to the child even being sent to live with the abusing parent.
She has witnessed dozens of decisions in the Family Court and says
that she has seen cases of substantiated abuse where the Court has
ordered that the child be sent to live with the alleged abuser.
Figures from Advocates of Survivors of Child Sexual Assault, formerly
led by advocate Liz Mulliner, support this. Freda Briggs.
Freda Briggs: Yes, Jane, I accept that both mothers and fathers can
alienate children from the other parent, but in this case we're
talking about allegations of sexual abuse which have often been
confirmed by paediatricians and psychologists who have a lot of
experience in these cases. Liz Mulliner, when she had ASCSA, had 21
cases where doctors had confirmed that the children had been abused,
but the children were removed and given to the care of their abusers.
I know of women who've lost their homes, who've spent up to a million
dollars, usually their parents' money, trying to protect their
children through the Family Court, and they have failed. You would not
go to those extremes if you weren't convinced that your children were
unsafe.
Background Briefing has been swamped with material, both in general
terms and specific case studies. But Family Law regulations are strict
about any coverage of individual Family Court protagonists,
particularly when they could involve identification of the children
concerned.
However, some mental health professionals are so concerned, they want
to talk about their experiences with Parental Alienation Syndrome. In
Queensland, Dr Brian Ross is a child and adolescent psychiatrist.
Brian Ross: There is certainly a group of children who demonstrate
alienation in the context of Family Law Court disputes or custody
disputes, and yes, parents can consciously and unconsciously alienate
the child as part of that process. However, I think it is in the
current environment of the Family Court, over-represented and used in
a way that I think really lacks true scientific or medical validity in
relation to what is a complex dynamics going on with children in
custody disputes.
Jane Shields: He has worked as a psychiatrist with families in
trouble, and recounts one case some years ago in which allegations of
physical and sexual abuse were raised by a mother.
Brian Ross: She came to me because she had been told that maybe part
of her emotional reaction to her husband might be influencing her
relationship with her children, and her behavioural management of her
children. My assessment over the years that I looked after her, was
that that wasn't the case, that she was trying to manage her
children's reactions in the context of their experience on access, and
she was trying to set boundaries about her own emotional reactions to
her former partner from that of her children's emotional and
behavioural reactions within the context of access.
Jane Shields: The final judgment in the case was to change the living
arrangements so that the children would go to live with the father for
most of the time.
Background Briefing has talked to this mother, and has read the court
proceedings. Part of her interview has been re-voiced to avoid
identification.
Reader: I had absolutely no idea of the existence of PAS; I had no
idea that it existed or that it was even used. And it is interesting
looking back. At all times there was an underlying current, because
the lawyers, the children's reps, my lawyer and the father's lawyer,
and the judge, knew that this was going to be used against me, but
nobody ever actually told me. So I always had a sense there was this
underlying stealth, that there was something underlying underneath the
surface, and I couldn't actually find out what it was. And I didn't
until after the judgment, when I made sure that I really found out
about it.
Jane Shields: Did they use the word 'alienation' when they were
questioning you?
Reader: No, the court and the lawyers have become quite savvy to this,
and they don't so much use the term now, PAS, or alienation, but the
underlying theory that they are using, or the underlying flow, is that
you are what they call an alienator, meaning you will destroy the
children's relationship with their father and you will go to any
lengths, including fabrication of abuse or even sexual abuse, in order
to achieve that.
Jane Shields: Dr Brian Ross, who was counselling this woman on her
relationship with her children, also gave statements to her lawyers
about her mental state.
Brian Ross: I was phoned by her lawyers to be asked about the mother's
presentation, her mental state, and whether in fact this mother may be
on a campaign to alienate or denigrate her former partner with these
allegations made by the daughter. It was my opinion, having known this
other over a number of years, that I felt that she was trying to act
protectively, she was wanting to seek the correct avenues to get
appropriate support and counselling for her daughter, and trying to
seek appropriate legal avenues to protect further abuse. It was not
her intention to denigrate or remove access or contact. She recognised
the relationship her former partner had with her children was
ongoingly important for the children's wellbeing, but she was wanting
to act protectively to prevent any negative impact of things that were
reported to her to be ongoing.
Jane Shields: Dr Ross is convinced that there was an agenda to paint
the mother as an alienator.
An independent psychiatric assessment of the mother also supported his
statements, and recommended that the children remain in the primary
care of their mother. In the final judgment, the Court didn't agree.
There is a larger issue within all Courts about the testimony of
expert witnesses, that we are not able to cover in this program.
Brisbane psychologist, Sue Aydon, also had dealings with parents and
children before the Family Court, and has attended Court hearings. She
believed at first that she would be asked to provide the Court with
information based on her knowledge of a family and the children.
Sue Aydon: I was part of a number of professionals who'd seen these
children. We all work in private practice but we do have dealings and
discussions with each other when we have a client between us, and
seeing as we'd had quite a long sort of association and counselling
with the children, we felt that this was important that we went along,
and actually voiced what the children wanted, and what we knew of the
children, to give an overview of how the children were going and what
was happening, what the problems were. You know, general evaluation.
We felt that that would be really important for the Court, because we
thought we could give it an objective assessment essentially.
Jane Shields: So you get into the witness box. Can you describe for us
what happened next?
Sue Aydon: Well essentially, the problem with the Family Court is that
it's adversarial. So we had a very, quite aggressive barrister on the
father's side, and quite attacking. So really their means of dealing
with the situation in that circumstance is s to really just try and
denigrate us and take away our credibility. So essentially that's what
happened in court.
Jane Shields: Were you in fact asked any questions about the children?
Sue Aydon: No, there were no questions asked about how the children
were going and what they thought, and yes, none at all.
Jane Shields: So the questions were really about your professional
credentials.
Sue Aydon: Oh, very much questioning our credibility and our
objectivity. So we were very much painted as being biased, even though
in many ways for us, there's no need for us to go along and be biased,
we actually felt that we were trying to provide a good overview, and
trying to really support the children in what they wanted.
Jane Shields: All Family Court cases are complex and difficult. The
issues run deep in the family dynamics, and both mothers and fathers
can come away deeply scarred, angry and frustrated with their dreams
dashed, and their children torn apart. Sometimes there are years of
claim and counter-claim, using many, many professional expert
witnesses, not all of whom agree. But very few are happy with the
influence that PAS on the Courts.
There are many studies and anecdotal evidence that PAS is supported by
people in Family Law, and that it's being referred to under a series
of different terms, including severe alienation, brainwashing,
coaching, vilification of the other parent, and enmeshment.
It's not surprising that research into child sexual abuse shows that
it is frequently a cause of a family breaking up and the parents
living apart. More disturbing is that the research also shows that
there is more likelihood of child sexual abuse after parents have
separated. Professor Thea Brown.
Thea Brown: You can see how that happens. You can see that if a person
in a marriage or a relationship starts to believe that the other
partner is abusing their child, or a member of the other partner's
family is abusing their child, because sometimes it's grandparents and
aunts and uncles and cousins, you can see that they start to think
that the only solution to this problem is that they separate from that
partner. And then they start to realise that this is just the
beginning of the trouble, not the end of the trouble, because they've
got to go to court and make arrangements for residence and contact.
And then they get involved in a really bitter dispute with their
partner. Because most people who perpetrate abuse, particularly people
who perpetrate sexual abuse, don't easily admit that. They don't say,
'Yes, I've done this and I will do what I can to solve this.'
Jane Shields: Thea Brown is Professor of Social Work, with Melbourne's
Monash University. In her book published this month, Professor Brown
says that over recent years child abuse in the context of parental
separation has emerged as a growing and troubling problem.
Thea Brown: In some families, the behaviour doesn't become noticed
until the separation has actually occurred and there's evidence to
show that sometimes the abuse doesn't actually happen until the child
is with only the one parent, that the opportunity presents itself when
it's a contact visit for that kind of abuse to happen. There's also
the problem that the abuse has happened before, but the child doesn't
say anything until they are left with only the one parent. That means
either with the residential parent, or with the contact parent.
Jane Shields: Professor Brown says she's been very surprised to find
that there is still support among people working in family law for the
idea of parental alienation syndrome as a psychiatric illness, one
which is dealt with by removing the children to the other parent's
home.
Thea Brown: I had imagined when we started our research that these
kinds of views had died, because I always associated parental
alienation syndrome with the past, and I thought that people had
walked past that. But I've certainly discovered it isn't true, and
I've certainly found it from the research that I've done and one of my
PhD students who did similar research in Western Australia, found that
it is still alive and well and believed by quite a lot of people who
work, generally speaking, in the Family Law area.
Jane Shields: Thea Brown says that she believes the PAS ideas are
mainly coming up through the courts from the supporting staff: the
psychologists, psychiatrists, and social workers who prepare reports
for the Family Court.
Thea Brown: Certainly it's fairly widespread among those professionals
that Parental Alienation Syndrome does exist.
Jane Shields: What sort of evidence did you see of the application of
that sort of alienation theory?
Thea Brown: Well where we saw the evidence was in the reports that
came to the court for decisions in the residence and contact disputes,
and they were reports that are done by psychologists and psychiatrists
and social workers that are commissioned by the parties in the case,
or sometimes by the local Legal Aid office, and sometimes by the Court
itself.
We saw it more commonly there than being expressed in the judges'
decisions, although I know that some people criticise the judges quite
strenuously for implementing that kind of view, but we found that the
judges were very strongly influenced by the expert reports. And in our
study we found that usually, that is in 70% of cases, the judge would
follow the recommendations of the court-appointed expert.
Jane Shields: And Thea Brown says many of the experts preparing
reports for the Family Court are still influenced by the PAS theory.
Several professionals raised the issue of PAS with her during research
interviews late last year.
Thea Brown: I have certainly been told about it, and told that this is
the situation, that this parent and it's very often the mother, is
working towards alienating the child from the father. And it's really
amazed me that professionals that I am interviewing for research
projects, would take that extra step and say to me, 'And you should
know this, you should know that this is happening.' And I have been
really quite surprised about it. The PhD student who did the work in
Western Australia, Dr Alison Hay, she found that extremely prevalent
in the West Australian Family Court.
Jane Shields: Professor Brown is planning more research on the topic
of PAS and its application in the courts.
Meanwhile, Professor of Child Development at the University of South
Australia, Freda Briggs, says she continues to hear from parents who
say they have been labelled with PAS and she wants it discredited in
Australia.
Freda Briggs: The PAS theory has no academic or any other credibility.
It's been banned in the court in America, and I'm just puzzled why our
judges don't take any notice of what's happening overseas. It was
described by Professor John Conte, who is well-known in the chid
protection area; he's in the University of Washington and as long ago
as seven years ago, he said that it's the most unscientific piece of
garbage he's seen in the field in all his time. And Dr Paul Fink, a
past President of the American Psychiatric Association, President of
the Leadership Council on Mental Health Justice and the Media said
that PAS as a scientific theory has been excoriated by legitimate
researchers across the nation, judged solely on its merits Dr Gardner
should be a pathetic footnote of psychiatry or an example of poor
scientific standards. So why are we behind the rest of the world in
still using it.
Jane Shields: Background Briefing put some of these arguments to the
Chief Justice of the Family Court, Diana Bryant. She is adamant that
the syndrome is not being accepted by judges of the Court.
Chief Justice Bryant.
Diana Bryant: As far as I'm aware in my experience, and I've looked at
a number of recent cases, there are almost no experts who give
evidence in the Family Court who subscribe to the view that there is a
Parental Alienation Syndrome. And the decisions of the court do not
accept that there is a Parental Alienation Syndrome. I went through
all of the decisions, doing a search, putting the words in, since
2003. The words Parental Alienation Syndrome come up quite a lot in
the judgments, but they're referred to because that's usually what one
party alleges.
In only one case since 2003 did I find a judge who had an expert
before him, who said there was such a syndrome. Subsequently, in other
decisions in that registry, judges have said that they don't accept
the evidence of the expert on that point.
So it isn't something that the Family Court accepts. All of the
internal counsellors that are in the court subscribe to the view that
there is no valid condition as Parental Alienation Syndrome.
Jane Shields: Freda Briggs is very respected and she has witnessed
cases where there's been substantiated abuse and the custody
arrangement has been reversed.
Diana Bryant: I don't agree with that. I know what Freda Briggs has
said in a number of cases, and she is well respected. However, they
are her views. The point is that people will say, people - sometimes
they're experts who come in on the side of a particular parent - and
they will truly believe that it might have occurred; they may believe
the party that abuse has occurred. But the person who actually makes
the findings in fact at the end of the day is the judge, who hears all
the evidence. And simply because an expert, or anyone says to you,
'I'm sure there was abuse in this case', doesn't mean that there was.
It's the judge in the end who has to make the decision, and they're
hard decisions. None of us like to do it, none of us like to be
confronted with having to determine whether or not abuse has occurred.
Jane Shields: Would you consider a review of any cases where that is
alleged?
Diana Bryant: We put cases up on the internet. They're anonymised
cases and they're cases dealing with it. I published a case because I
thought it was in the public interest to do so last year, a case in
which Dr Wood, who's recently been writing in the paper, gave
evidence, and there were experts on both sides, and the judge made a
decision, and that case is published on the internet for everyone to
read, and I'm happy for people to have informed debate about it.
THEME
Jane Shields: Background Briefing's Co-ordinating Producer is Angus
Kingston. Research, Anna Whitfeld. Executive Producer, Kirsten
Garrett.
There will be some links to information mentioned in the program on
the Background Briefing website.
I'm Jane Shields, and you're with ABC Radio National.
THEME
